Opinion
J-S54017-17 No. 10 WDA 2017
10-13-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JONATHAN HOLLIN WOLFRAM Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 16, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000839-2013 CP-25-CR-0002133-2013 BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J. MEMORANDUM BY MOULTON, J.:
Former Justice specially assigned to the Superior Court.
Jonathan Hollin Wolfram appeals from the December 16, 2016 judgment of sentence entered in the Erie County Court of Common Pleas following his revocation of probation. Wolfram's appellate counsel has filed an Anders brief and a petition to withdraw from representation. We affirm and grant counsel's petition to withdraw.
Anders v. California 386 U.S. 738 (1967).
The trial court set forth the history of this case in its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, which we incorporate herein. See Rule 1925(a) Opinion, 1/18/17, at 1-2 ("1925(a) Op.").
Because counsel has filed a petition to withdraw pursuant to Anders and its Pennsylvania counterpart, Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), we must address counsel's petition before reviewing the merits of Wolfram's underlying claim. Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa.Super. 2007). We first address whether counsel's petition to withdraw satisfies the procedural requirements of Anders. To be permitted to withdraw, 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).
Here, counsel has stated that after a conscientious examination of the record, she believes this appeal would be wholly frivolous. Pet. to Withdraw, 6/1/17, at 1. Counsel furnished a copy of the Anders brief to Wolfram, as well as a letter advising Wolfram that he could seek new counsel or proceed pro se. We conclude that counsel's petition to withdraw complies with the procedural dictates of Anders.
We next address whether counsel's Anders brief meets the requirements established by the Pennsylvania Supreme Court in Santiago. 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.Santiago , 978 A.2d at 361.
Counsel's brief provided a summary of the procedural history and the facts with appropriate citations to the record. Anders Br. at 4-6. Counsel's brief states that she reviewed the record and determined that any appeal would be frivolous, and set forth her reasons for that conclusion. Id. at 8-9. Accordingly, counsel has substantially complied with the requirements of Anders and Santiago.
Wolfram has not filed a pro se brief or a counseled brief with new, privately-retained counsel. We, therefore, review the issue raised in the Anders brief.
Wolfram raises the following issue: "Whether the sentence of the trial court is manifestly excessive, unreasonable and inconsistent with the objectives of the Sentencing Guidelines given the fact that the trial court did not give consideration to mitigating factors presented to the court by [Wolfram]." Anders Br. at 3.
Wolfram is raising a challenge to the discretionary aspects of his sentence. "Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Allen , 24 A.3d 1058, 1064 (Pa.Super. 2011). Before we address such a challenge, we determine:
(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]ppellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the [S]entencing [C]ode.Commonwealth v. Austin , 66 A.3d 798, 808 (Pa.Super. 2013) (quoting Commonwealth v. Malovich , 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Wolfram has timely appealed and has included a concise statement of reasons relied upon for allowance of appeal in his brief. Wolfram, however, did not preserve his issue in his post-sentence motion or at the time of sentencing. See Commonwealth v. Lamonda , 52 A.3d 365, 371 (Pa.Super. 2012) ("Issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings.") (quotation omitted). Wolfram has, therefore, waived his sentencing claim.
Further, Wolfram has failed to raise a substantial question for our review. A substantial question exists where a defendant raises a "plausible argument that the sentence violates a provision of the [S]entencing [C]ode or is contrary to the fundamental norms of the sentencing process." Commonwealth v. Dodge , 77 A.3d 1263, 1268 (Pa.Super. 2013) (quotation omitted). Additionally, "this Court has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review." Commonwealth v. Caldwell , 117 A.3d 763, 769 (Pa.Super.) (quoting Commonwealth v. Disalvo , 70 A.3d 900, 903 (Pa.Super. 2013)), app. denied, 126 A.3d 1282 (Pa. 2015). Therefore, Wolfram's claim that the trial court did not properly consider mitigating factors does not raise a substantial question for our review. See id.
Even if Wolfram had preserved his issue and raised a substantial question, we would conclude it lacks merit. In its Rule 1925(a) opinion, the trial court applied the relevant law and concluded that there were substantial reasons for the sentence imposed and that it considered the mitigating factors presented via post-sentence letters. We agree with, and adopt, the well-reasoned opinion of the Honorable William R. Cunningham. See 1925(a) Op. at 3-9. Further, at the revocation hearing, the trial court stated that it read the revocation summary and the pre-sentence report, listened to the evidence presented, and explained the concerns it had in regards to Wolfram.
"Where pre-sentence reports exist, we . . . presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Macias , 968 A.2d 773, 778 (Pa.Super. 2009) (quoting Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988)). --------
Judgment of sentence affirmed. Petition for leave to withdraw as counsel granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/13/1027
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