Com. v. Nolasco, C. ( 2022 )

J-A15011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CESAR A. NOLASCO :
:
Appellant : No. 1512 WDA 2021
Appeal from the Judgment of Sentence Entered December 1, 2021
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000824-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CESAR A. NOLASCO :
:
Appellant : No. 1513 WDA 2021
Appeal from the Judgment of Sentence Entered December 1, 2021
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000164-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CESAR AGUSTO NOLASCO :
:
Appellant : No. 1514 WDA 2021
Appeal from the Judgment of Sentence Entered December 1, 2021
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000082-2021
J-A15011-22
BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: JUNE 22, 2022
Cesar Agusto Nolasco appeals from the aggregate judgment of sentence
of four and one-half to fifteen years of incarceration imposed after he pled
guilty to possession of an altered firearm, aggravated assault, and simple
assault in the above-captioned cases.1 In this Court, Matthew C. Parson,
Esquire, has filed an application to withdraw as Appellant’s counsel and brief
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 application to withdraw.
The trial court offered the following summary of the history of these
cases:
Docket numbers 82 Criminal 2021 and 164 Criminal 2021
concern an incident occurring on December 11, 2020. Appellant
engaged in a high-speed chase on Interstate 79 near Findley
Township, Mercer County, Pennsylvania which ended when
Appellant struck a tractor trailer before travelling off the roadway
into a ditch and crashing. Appellant was taken into custody.
During a search of the vehicle, an RG Industries Model 31 Revolver
was located inside the vehicle on the passenger side floor. The
firearm’s serial number was scratched off, making the serial
number unidentifiable. Appellant advised police the gun was his.
Appellant was taken to Grove City Medical Center for treatment.
During Appellant’s treatment, he became agitated and kicked a
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1 As a notice of appeal was docketed in each of the three cases, resulting in
separate appeals which this Court consolidated sua sponte, we conclude that
Appellant complied with the obligations of Pa.R.A.P. 341 and Commonwealth
v. Walker, (holding that the Official Note to Rule 341 requires “that when a
single order resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed” at each docket).
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nurse in the face. Appellant was later cleared by medical
personnel and taken to Mercer County Jail.
Docket number 824 Criminal 2021 concerns an incident
which occurred during Appellant’s incarceration at the Mercer
County Jail, pending charges from the previous incident. On May
28, 2021, Appellant was leaning into another inmate’s cell to
argue with the other inmate. Appellant positioned himself to the
left side of the door after several seconds. The other inmate
eventually exited his cell with Appellant travelling behind him.
Appellant struck the other inmate with a closed fist seven to eight
times on the right side of the inmate’s face. As Appellant was
being handcuffed, he admitted to the assault. Appellant was then
taken to a restrictive housing unit.
Appellant pled guilty on September 23, 2021 and was
sentenced on December 1, 2021. Appellant did not file a post
sentence motion. On December 20, 2021, Appellant filed a notice
of appeal. This court issued an order on December 21, 2021,
instructing Appellant to file a concise statement of errors
complained of on appeal within 21 days of the date of the order.
On January 20, 2022, Appellant filed his [untimely] concise
statement of errors complained of on appeal.
Trial Court Opinion, 2/11/22, at 1-3 (unnecessary capitalization omitted).2
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2 The trial court opined that Appellant waived all appellate issues by failing to
timely comply with its Pa.R.A.P. 1925(b) order. See Trial Court Opinion,
2/11/22, at 4. However, this omission amounts to per se ineffective
assistance of counsel, which calls for a remand rather than waiver. See
Pa.R.A.P. 1925(c)(3) (providing that remand, rather than waiver, follows from
per se ineffectiveness of counsel in failing to timely comply with a Rule
1925(b) order). Since the trial court nonetheless addressed the issue raised
in the untimely statement in its opinion, we need not remand, but may
proceed to address the appeal. See Commonwealth v. Thompson, 39 A.3d
335, 340 (Pa.Super. 2012) (“When counsel has filed an untimely Rule 1925(b)
statement and the trial court has addressed those issues we need not remand
and may address the merits of the issues presented.”).
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As noted, counsel filed in this Court both an Anders brief and a petition
seeking leave to withdraw as counsel. Consequently, the following legal
principles guide our review:
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof.
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any additional
points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa.Super. 2017) (cleaned up).
Our Supreme Court has further detailed counsel’s duties as follows:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (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.
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Santiago, supra at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has minimally complied with the
technical requirements set forth above.3 As required by Santiago, counsel
set forth a brief history of the case, referred to an issue that arguably supports
the appeal, stated his conclusion that the appeal is frivolous, and cited case
law. See Anders brief at 6-8. Therefore, we now go on “‘to make a full
examination of the proceedings and make an independent judgment to decide
whether the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers,
113 A.3d 1246, 1249 (Pa.Super. 2015) (quoting Santiago, supra at 354 n.5).
The sole issue arguably supporting an appeal cited by Appellant’s
counsel is whether the trial court “erred as a matter of law or abused its
discretion in issuing an excessive sentence.” Anders brief at 5. In reviewing
the question, we bear in mind the following:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect [pursuant to] Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the
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3 Appellant did not file a response to counsel’s petition.
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sentence appealed from is not appropriate under the
Sentencing Code.
Commonwealth v. Lucky, 229 A.3d 657, 663–64 (Pa.Super. 2020) (cleaned
up).
Here, Appellant timely filed a notice of appeal but, as noted by the trial
court, he did not preserve the issue by raising it at the sentencing proceeding
or filing a motion to modify sentence. See Trial Court Opinion, 2/11/22, at 3.
On this basis, we agree with counsel that a challenge to the discretionary
aspects of Appellant’s sentence is frivolous. See Commonwealth v. Tukhi,
149 A.3d 881, 888 (Pa.Super. 2016) (“Appellant did not raise the issue at his
sentencing hearing, nor did he file a motion to modify the sentence imposed.
Therefore, he has waived this issue for failing to preserve it. An issue that is
waived is frivolous.”).
Additionally, our “simple review of the record to ascertain if there
appear[s] on its face to be arguably meritorious issues that counsel,
intentionally or not, missed or misstated[,]” has revealed no additional issues
that counsel failed to address.4 Commonwealth v. Dempster, 187 A.3d
266, 272 (Pa.Super. 2018) (en banc). Therefore, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
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4 We have conducted our independent review cognizant of the fact that “upon
entry of a guilty plea, a defendant waives all claims and defenses other than
those sounding in the jurisdiction of the court, the validity of the plea, and
what has been termed the ‘legality’ of the sentence imposed.”
Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).
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Application of Matthew C. Parson, Esquire, to withdraw as counsel is
granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/22/2022
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