Com. v. Caro, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN CARO
Appellant No. 80 MDA 2016
Appeal from the Judgment of Sentence March 16, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000682-2014
BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2016
John Caro appeals from the judgment of sentence, entered in the
Court of Common Pleas of Lackawanna County, after he pled guilty to
attempted criminal homicide.1 Caro’s counsel also seeks to withdraw
pursuant to the dictates of Anders v. California, 386 U.S. 738 (1967),
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Upon review,
we grant counsel’s petition to withdraw and affirm Caro’s judgment of
sentence.
On December 31, 2006, Caro pulled his vehicle next to the victim’s
vehicle while driving on Route 81 and shot the victim in the head. Based
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1
18 Pa.C.S. § 901(a); 18 Pa.C.S. § 2501.
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upon these actions, Caro was initially charged with attempted criminal
homicide and related crimes including aggravated assault,2 recklessly
endangering another person (REAP),3 and carrying a firearm without a
license.4 Caro fled to Colombia after the above incident and was not
apprehended until 2014. In exchange for Caro’s guilty plea to attempted
homicide on December 10, 2014, Caro’s remaining charges were nolle
prossed.
Caro was sentenced on March 16, 2015, to a term of 13 to 30 years’
incarceration. On September 24, 2015, Caro filed a pro se petition pursuant
to the Post Conviction Relief Act (PCRA),5 seeking reinstatement of his direct
appeal rights nunc pro tunc. Caro’s PCRA petition was granted on December
8, 2015, and he was appointed counsel, who filed a nunc pro tunc notice of
appeal of the judgment of sentence on January 7, 2016. On January 26,
2016, Caro filed a timely court-ordered concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal Caro
asserts that his sentence is excessive.
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2
18 Pa.C.S. § 2702.
3
18 Pa.C.S. § 2705.
4
18 Pa.C.S. 6106.
5
42 Pa.C.S. §§ 9541-9546.
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Counsel has filed a petition to withdraw pursuant to Anders,
McClendon, and Santiago. “When faced with a purported Anders brief,
this Court may not review the merits of the underlying issues without first
passing on the request to withdraw.” Commonwealth v. Rojas, 847 A.2d
638, 639 (Pa. Super. 2005). Based upon Anders and McClendon, counsel
seeking to withdraw must: 1) petition the court for leave to withdraw,
certifying that after a thorough review of the record, counsel has concluded
the issues to be raised are wholly frivolous; 2) file a brief referring to
anything in the record that might arguably support an appeal; and 3) furnish
a copy of the brief to the appellant and advise him of his right to obtain new
counsel or file a pro se brief raising any additional points that the appellant
deems worthy of review. Commonwealth v. Hernandez, 783 A.2d 784,
786 (Pa. Super. 2001). Additionally, in Santiago, our Supreme Court held
that counsel must state the reasons for concluding the client’s appeal is
frivolous. Santiago, 978 A.2d at 361.
Instantly, counsel’s petition to withdraw states that he has examined
the record and has concluded that the appeal is wholly frivolous. Counsel
has also filed a brief in which he repeats the assertion that there are no non-
frivolous issues to be raised and provides his reasoning for concluding the
appeal is frivolous. Counsel has notified Caro of the request to withdraw and
has provided him with a copy of the brief and a letter explaining his right to
proceed pro se or with privately retained counsel regarding any other issues
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he believes might have merit. Accordingly, we find that counsel has
substantially complied with the procedural requirements for withdrawal.
Once counsel has satisfied the above requirements, this Court
conducts its own review of the proceedings and renders an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Caro’s sole contention is that his sentence is excessive, which presents
a challenge to the discretionary aspects of sentencing. An appellant is not
entitled to review of the discretionary aspects of sentencing unless he or she
satisfies a four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en
banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011)).
Here, Caro filed a timely nunc pro tunc notice of appeal after his direct
appeal rights were reinstated and had preserved this issue in a motion for
reconsideration of sentence after sentencing. Caro’s brief includes a
separate statement of the reasons relied upon in challenging the
discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). Thus,
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we turn to whether Caro presents a substantial question that his sentence is
not appropriate under the Sentencing Code.
Caro’s claim is limited to the argument that the sentence he received
is excessive. This assertion neither indicates how the sentence specifically
violates the sentencing scheme in the Sentencing Code nor how it is contrary
to a fundamental norm of the sentencing process. See Caldwell, supra at
768; see also Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.
2012) (“[A] bald assertion that a sentence is excessive does not by itself
raise a substantial question justifying this Court’s review of the merits of the
underlying claim.”). Thus, Caro fails to raise a substantial question.6
Based upon the foregoing and our independent review of the record,
we find Caro’s appeal to be meritless. Therefore, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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6
Had Caro raised a substantial question, he nevertheless would not be
entitled to relief because the sentence imposed is in the standard range of
the sentencing guidelines and the court reviewed a pre-sentence
investigation (PSI) report. “[W]here a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010) (citing Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.
Super. 1995) (combination of PSI and standard range sentence, without
more, not excessive or unreasonable)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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