Com. v. Cordoba, A. ( 2016 )

J-S44024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ABRAHAM CORDOBA
Appellant No. 2979 EDA 2015
Appeal from the Judgment of Sentence Entered August 25, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0005334-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED AUGUST 24, 2016
Appellant, Abraham Cordoba, appeals from the August 25, 2015
judgment of sentence imposing six to twenty years of incarceration after he
pled guilty to robbery.1 Counsel has filed a brief and petition to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
Appellant entered his negotiated guilty plea on June 22, 2015.
Appellant admitted he held the victim at gunpoint and robbed him of a pair
of Nike Air Jordan sneakers. The Commonwealth agreed to a minimum
sentence not to exceed six years of incarceration. The Commonwealth also
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1
18 Pa.C.S.A. § 3701(a)(1)(ii).
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agreed not to pursue any charges other than robbery. The trial court
imposed sentence in accordance with the parties’ agreement. On September
3, 2015, Appellant filed a post-sentence motion challenging the twenty-year
maximum term as excessive. The trial court denied Appellant’s motion on
September 9, 2015. This timely appeal followed.
Counsel’s Anders Brief addresses Appellant’s challenge to the trial
court’s sentencing discretion. Before we address the merits, we consider the
adequacy of counsel’s Anders/Santiago brief, which must comply with the
following:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Counsel must also advise the defendant of his rights to “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court’s attention in addition to
the points raised by counsel in the Anders brief.” Commonwealth v.
Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 936 A.2d 40(Pa. 2007). We have reviewed counsel’s filings and found them in
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compliance with the foregoing. Appellant has not responded. We therefore
proceed to the merits.
According to the Anders Brief, Appellant believes the twenty-year
maximum sentence—the statutory maximum for robbery—is manifestly
excessive. Prior to sentencing, the parties believed the agreed upon six-
year minimum sentence fell at the top of the standard guideline range, given
Appellant’s prior record score. N.T. Sentencing, 8/25/15, at 2-3. According
to the presentence investigation report, the applicable deadly weapon
enhancement placed Appellant’s minimum sentence in the mitigated
guideline range. Id. In any event, this Court has held that when the
appellant’s minimum sentence falls within the guideline range, a challenge to
the maximum does not raise a substantial question for appellate review in
accordance with 42 Pa.C.S.A. § 9781(b). Commonwealth v. Yeomans, 27
A.3d 1044, 1049-50 (Pa. Super. 2011); Commonwealth v. Kimbrough,
872 A.2d 1244, 1263 (Pa. Super. 2005) (en banc). In one exceptional case,
this court found a substantial question where the sentencing court failed to
explain its reasons for imposing an aggregate 90-year maximum on a 19-
year-old defendant who was homeless and destitute when he sexually
assaulted the victim. Commonwealth v. Coulverson, 34 A.3d 135, 143
(Pa. Super. 2011).
Relying on Yeomans and Kimbrough, counsel believes Appellant’s
challenge does not raise a substantial question. We agree. The instant case
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is in accord with those two cases and does not implicate Coulverson, in
which the sentencing court’s aggregate maximum of 90 years created the
possibility of a life sentence for a 19-year-old offender. Thus, a challenge to
the twenty-year maximum sentence is not of arguable merit.
We have conducted an independent review of the record and
discovered no other potential issues of arguable merit. We therefore affirm
the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
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