Com. v. Phillips, A., Jr. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW MICHAEL PHILLIPS, JR. :
:
Appellant : No. 1769 MDA 2019
Appeal from the Judgment of Sentence Entered September 10, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001186-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 01, 2020
Appellant, Andrew Michael Phillips, Jr., appeals from the September 10,
2019 Judgment of Sentence entered in the Lackawanna County Court of
Common Pleas following his open guilty plea to Aggravated Assault1. With
this appeal, Appellant’s appointed counsel, Donna M. De Vita, has filed an
Application to Withdraw as Counsel and an Anders2 Brief. Appellant
challenges the discretionary aspects of his sentence. After careful review, we
conclude that Appellant has waived this claim. Thus, we affirm Appellant’s
Judgment of Sentence and grant counsel’s Application to Withdraw as Counsel.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2702(a)(4).
2 Anders v. California, 386 U.S. 738 (1967).
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Briefly, on November 30, 2018, Appellant entered an open guilty plea
to Aggravated Assault. On September 10, 2019, court sentenced Appellant
to a term of 27 to 72 months’ incarceration.3 Appellant did not file a Motion
for Reconsideration of Sentence.
This appeal followed.4, 5 Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
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3 At the time that Appellant committed the instant offense, he was serving a
2-year sentence of probation for Resisting Arrest at Docket Number 1481-
2015. Appellant’s arrest for Aggravated Assault engendered revocation
proceedings at Docket Number 1481-2015, resulting in revocation of his
probation and resentencing to a new term of 2 years’ probation. Appellant
did not file a Notice of Appeal from the sentence of probation entered at Docket
Number 1481-2015.
4On October 22, 2019, the trial court appointed Attorney De Vita to represent
Appellant on appeal.
5 Appellant filed a pro se Notice of Appeal from prison by letter dated October
7, 2019. The lower court clerk docketed Appellant’s Notice of Appeal on
October 16, 2019. The envelope in which Appellant transmitted the Notice of
Appeal bears a date stamp reading either October 7, 2019, or October 12,
2019. Although the clerk docketed the Notice of Appeal beyond the 30-day
appeal period, we deem Appellant’s pro se appeal timely pursuant to the
prisoner mailbox rule. See Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011) (explaining that, under the prisoner mailbox rule, an appeal
by a pro se prisoner is deemed filed on the date the prisoner deposits the
appeal with prison authorities or places it in a prison mailbox).
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Anders Brief
Counsel has filed an Anders Brief challenging the discretionary aspects
of Appellant’s sentence.6 Anders Brief at 4. Counsel has also filed an
Application to Withdraw as Counsel.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc) (citation omitted). Prior to withdrawing as counsel on
direct appeal under Anders, counsel must file a brief that meets the
requirements established by the Pennsylvania Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), namely:
(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.
978 A.2d at 361.
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6 Appellant has also challenged his revocation sentence entered at Docket
Number 1481-2015. However, as noted, supra, Appellant did not file a Notice
of Appeal from that sentence. Accordingly, Appellant has waived any
challenge to imposition of that sentence.
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In addition, counsel must provide a copy of the Anders brief to his
client. “Attending the brief must be a letter that advises the client of his right
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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (quoting
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007)).
Counsel has complied with the requirements of Anders as articulated in
Santiago and supplied Appellant with a copy of the Anders Brief and a letter
explaining the rights enumerated in Orellana. See Anders Brief; Application
to Withdraw as Counsel, Exh. A (Letter, dated Sept. 15, 2020). Accordingly,
counsel has satisfied the technical requirements for withdrawal.7
Having addressed counsel’s technical compliance with Anders, we will
address the substantive issue raised by counsel. In addition, we must conduct
“a simple review of the record to ascertain if there appear on its face to be
arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.
2018) (en banc).
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7 Appellant did not respond to counsel’s Anders Brief.
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Discretionary Aspects of Appellant’s Sentence
Appellant challenges the discretionary aspects of his sentence. Anders
Brief at 12-13.8
A challenge to discretionary aspects of a sentence is not reviewable as
a matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.
Super. 2015). Rather, an appellant challenging the sentencing court’s
discretion must invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a post-sentence
motion; (3) complying with Pa.R.A.P. 2119(f), which requires a separate
section of the brief setting forth a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of a sentence;
and (4) presenting a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.;
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
Appellant timely appealed. However, this Court’s review of the record
indicates that Appellant failed to preserve this issue by raising it at sentencing
or in a Post-Sentence Motion. Accordingly, he has waived it. See
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)
(explaining that a defendant waives a challenge to the discretionary aspects
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8 “Where a defendant pleads guilty without any agreement as to sentence, the
defendant retains the right to petition this Court for allowance of appeal with
respect to the discretionary aspects of sentencing.” Commonwealth v.
Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009) (citation omitted).
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of his sentence if he fails to present the claim to the trial court at sentencing
or in a post-sentence motion).
Following our review of the issue raised by Appellant in counsel’s
Anders Brief, we agree with counsel and conclude that this appeal is wholly
frivolous. In addition, following an independent review of the record, we
discern no arguably meritorious issues that warrant further consideration.
Accordingly, we grant counsel’s Application to Withdraw as Counsel and affirm
Appellant’s Judgment of Sentence.
Application to Withdraw as Counsel granted; Judgment of Sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2020
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