Opinion
1794 EDA 2023 J-S47037-23
01-12-2024
COMMONWEALTH OF PENNSYLVANIA v. LORRAINE MATERN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered June 15, 2023 In the Court of Common Pleas of Wayne County Criminal Division at No(s): CP-64-CR-0000052-2023
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Appellant Lorraine Matern appeals the judgment of sentence entered by the Court of Common Pleas of Wayne County after Appellant pled guilty to retail theft. Counsel has filed a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter "Anders brief"). We affirm the judgment of sentence and grant counsel's petition to withdraw.
On September 12, 2022, Appellant was charged with two counts of retail theft. On May 4, 2023, Appellant pled guilty to one count of retail theft. The trial court deferred sentencing for the preparation of a pre-sentence investigation report. On June 15, 2023, the trial court sentenced Appellant to three (3) to twenty-three and a half (23½) months' incarceration.
Appellant did not file a post-sentence motion, but instead filed a timely notice of appeal on July 6, 2023. Appellant subsequently complied with the trial court's direction to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), arguing that the trial court abused its discretion in refusing to sentence Appellant to house arrest or a sentence in the lower end of the standard range of the sentencing guidelines. Counsel then filed a petition to withdraw along with an Anders brief.
We must first evaluate counsel's request to withdraw before reaching the merits of the case. Commonwealth v. Washington, 63 A.3d 797, 800 (Pa.Super. 2013); see also Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (stating, "[w]hen 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") (citation omitted).
There are procedural and briefing requirements imposed upon an attorney who seeks to withdraw on appeal pursuant to which counsel must:
1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention.Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en banc) (citation omitted). We further review counsel's Anders brief for compliance with the requirements set forth in the Supreme Court's decision in Santiago:
[W]e hold that in 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.Santiago, 602 Pa. at 178-79, 978 A.2d at 361.
The Supreme Court in Santiago clarified that Anders does not "require[] that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. [W]hat the brief must provide under Anders are references to anything in the record that might arguably support the appeal." Id. at 176, 978 A.2d at 359-360.
Moreover, counsel must provide a copy of the Anders brief to his or her 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)).
In this case, counsel filed an Anders brief with her application to withdraw, in which she states that she made a conscientious examination of the record and determined there are no non-frivolous grounds for the appeal. We find counsel's brief and petition substantially comply with the technical requirements of Anders and Santiago.
Moreover, counsel provided this Court with a copy of the letter which she sent to Appellant advising her of her right to retain new counsel or to proceed pro se to raise any points that she deems worthy of this Court's attention. See Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore, we proceed to examine the issue counsel identified in the Anders brief and then conduct "a full examination of all the proceedings, to decide whether the case is wholly frivolous." Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super. 2018) (en banc) (quotation omitted).
Appellant argues that the trial court abused its discretion in sentencing Appellant to a period of incarceration instead of house arrest or probation. In reviewing such claims, we are mindful that:
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Prior to reaching the merits of a discretionary sentencing issue[, w]e conduct a four-part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018) (quotation marks, some citations, and emphasis omitted).
Although Appellant filed a timely notice of appeal, she did not file a post-sentence motion. It is well-established that "[i]f an appellant fails to challenge the discretionary aspects of a sentence either by presenting a claim to the trial court at the time of sentencing or in a post-sentence motion, then the appellant's challenge is waived." Commonwealth v. Bartic, 303 A.3d 124, 134 (Pa.Super. 2023) (citing Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012) (en banc)). Since Appellant did not preserve her challenge to the discretionary aspects of her sentence at sentencing or in a post-sentence motion, Appellant's challenge is waived. Thus, we agree with counsel that Appellant's sentencing challenge is wholly frivolous.
Furthermore, our independent review of the entire record, as required pursuant to Anders, reveals no additional non-frivolous claims. Yorgey, 188 A.3d at 1195. Accordingly, we grant Counsel's petition to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.