Opinion
J-S48031-16 No. 1894 WDA 2015
09-14-2016
COMMONWEALTH OF PENNSYLVANIA v. DAVID ROLAND SNYDER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 22, 2015 in the Court of Common Pleas of Potter County, Criminal Division, No(s): CP-53-CR-0000020-2011 BEFORE: BOWES, DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
David Roland Snyder ("Snyder") appeals from the judgment of sentence entered following his conviction of four counts of delivery of a controlled substance, two counts each of possession with intent to deliver a controlled substance and criminal conspiracy, and one count of dealing in the proceeds of unlawful activities. Counsel for Snyder has filed a Petition to withdraw from representation and a brief pursuant to Anders v. California , 386 U.S. 738 (1967). We grant counsel's Petition to withdraw, and affirm the judgment of sentence.
35 Pa.C.S.A. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903, 5111.
In October 2011, following a two-day jury trial, Snyder was convicted of the above-described offenses. On November 30, 2011, the trial court sentenced Snyder to an aggregate prison term of 34-68 years, later modified to 27-54 years. On direct appeal, this Court affirmed the judgment of sentence, after which the Pennsylvania Supreme Court denied allowance of appeal. See Commonwealth v. Snyder , 83 A.3d 1079 (Pa. Super. 2013) (unpublished memorandum), appeal denied , 87 A.3d 815 (Pa. 2014).
On March 23, 2015, Snyder filed a Petition for relief under the Post Conviction Relief Act. Thereafter, the Commonwealth and Snyder filed a Joint Motion for Limited Grant of PCRA Relief by Stipulation and For Resentencing ("Stipulation"). In that Stipulation, the parties agreed that Snyder is entitled to resentencing based upon the United States Supreme Court's holding in Alleyne v. United States , ___ U.S. ___, 133 S.Ct. 2151 (2013). The PCRA court granted Snyder's request for resentencing based upon Alleyne , and denied all other claims for relief. PCRA Order, 10/14/2015.
At resentencing, for his conviction of delivery of cocaine, the trial court sentenced Snyder to an aggregate prison term of 22 years, 9 months to 45 years, 6 months. Thereafter, Snyder filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Before reviewing the claim raised by Snyder, we must first review defense counsel's Anders brief and Petition to withdraw.
Prior to withdrawing as counsel on a direct appeal under Anders , counsel must file a brief that meets the requirements established by our Supreme Court in [ Commonwealth v.] Santiago [, 978 A.2d 349 (Pa. 2009)]. The brief 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.
Commonwealth v. Orellana , 86 A.3d 877, 879-80 (Pa. Super. 2014).
Santiago , 978 A.2d at 361. Counsel also 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. Nischan , 2007 PA Super 199, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied , 594 Pa. 704, 936 A.2d 40 (2007).
Here, counsel's Petition to withdraw states that he has reviewed the record and concluded that the appeal is frivolous. Our review also discloses that in the Anders brief, counsel has provided the facts and procedural history of the case, referred to any facts that could arguably support the appeal, and counsel's conclusion that the appeal his wholly frivolous. Additionally, counsel notified Snyder that he was seeking permission to withdraw, furnished Snyder with copies of the Petition to withdraw and Anders brief, and advised Snyder of his right to retain new counsel or proceed pro se to raise any points he believes worthy of this Court's attention. Accordingly, counsel has complied with the minimum requirements of Anders / Santiago.
As Snyder has filed neither a pro se brief nor a counseled brief with new, privately-retained counsel, we review this appeal based on the issue raised in the Anders brief.
Snyder claims that the trial court sentenced him in violation of Alleyne and Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014) (en banc), as the court "relied on facts not queried to the jury, specifically[,] the amount of drugs involved, in preparing the sentencing guidelines." Anders Brief at 1.
This Court has concluded that Alleyne does not impact the use of the sentencing enhancements, as sentencing guideline enhancements do "not bind the trial court to impose any particular sentencing floor." Commonwealth v. Ali , 112 A.3d 1210, 1226 (Pa. Super. 2015); accord Commonwealth v. Buterbaugh , 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc). Accordingly, Snyder's challenge to the sentencing guideline enhancements, based upon Alleyne , lacks merit, and his claim in this regard is wholly frivolous.
Finally, our independent review of the certified record reveals no preserved, non-frivolous issue that would arguably support this appeal. Therefore, we grant counsel's Petition to withdraw and affirm Snyder's judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/14/2016