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Commonwealth v. Lilley

July 21, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOSHUA LILLEY, SR., APPELLANT



Appeal from the Judgment of Sentence October 29, 2008 In the Court of Common Pleas of Erie County, Criminal at No(s): CP-25-CR-0003024-2007.

The opinion of the court was delivered by: Freedberg, J.

BEFORE: LALLY-GREEN, FREEDBERG, and POPOVICH, JJ.

OPINION

¶ 1 Appellant, Joshua Lilley, Sr., appeals from judgment of sentence entered by the Court of Common Pleas of Erie County. Appellant's court-appointed counsel ("Counsel") has filed a brief and a petition to withdraw from this appeal on the basis of frivolity. After conducting an independent review of the record, we grant the petition to withdraw and affirm judgment of sentence.

¶ 2 On August 23, 2007, Appellant was charged with one count of aggravated indecent assault of a child, 18 Pa.C.S.A. § 3125(b), one count of indecent assault, 18 Pa.C.S.A. § 3126(a), one count of corruption of minors, 18 Pa.C.S.A. § 6301(a), and one count of endangering the welfare of children, 18 Pa.C.S.A. § 4304. On May 1, 2008, Appellant entered into a negotiated plea in which he agreed to plead guilty to one count of aggravated indecent assault of a child, 18 Pa.C.S.A. § 3125(a)(7),*fn1 and one count of endangering the welfare of children, 18 Pa.C.S.A. § 4304. As a result, Appellant admitted to sexually assaulting an eight-year-old girl on one occasion sometime in 2005. In exchange for his plea, the Commonwealth agreed to nolle pros the other charges pending against Appellant.

¶ 3 On September 8, 2008, Appellant was sentenced to a period of incarceration of 60 to 120 months for aggravated indecent assault of a child. With an offense gravity score of 10 and a prior record score of RFEL*fn2, this sentence is a mitigated range sentence, 204 Pa.Code § 303.16, and represents the mandatory minimum sentence. 42 Pa.C.S.A. 9718(a). Appellant was also sentenced to a consecutive period of 27 to 54 months for endangering the welfare of children. This sentence is within the standard range of the sentencing guidelines. 204 Pa.Code § 303.16. Appellant was also found to be a sexually violent predator.*fn3 On September 18, 2008, Appellant's prior counsel filed a motion for reconsideration/modification of sentence. The sentencing court held a hearing on Appellant's motion on October 29, 2008, at the conclusion of which, the sentencing court denied Appellant's motion.

¶ 4 On November 26, 2008, Counsel filed a notice of appeal. On December 22, 2008, Counsel filed a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. On January 22, 2009, the sentencing court issued a Pa.R.A.P. 1925(a) opinion.

¶ 5 Counsel has petitioned to withdraw and has submitted an Anders brief. Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. Super. 1981). Court-appointed counsel who seek to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous 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) file a brief referring to anything that arguably might support the appeal but which does not resemble a "no-merit" letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the court's attention.

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (citation omitted). "[T]his Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Wimbush, 951 A.2d 379 (Pa. Super. 2008), citing Rojas, 874 A.2d at 639.

¶ 6 We conclude that Counsel has made a conscientious examination of the record in this case and has determined that an appeal would be frivolous. Counsel's brief does not resemble a "no merit" letter or amicus curiae brief, as it sets forth issues in a neutral fashion, cites to appropriate authority and does not argue against his client. Finally, the record contains a copy of the letter which Counsel sent to Appellant, advising him of his rights and stating Counsel's intention to seek permission to withdraw. Appellant has not responded. Accordingly, Counsel has complied with the procedural requirements of Anders and McClendon as set forth in Rojas. Rojas, 874 A.2d at 639.

¶ 7 "Once counsel has satisfied the above requirements, it is then this Court's duty to conduct its own review of the trial court's proceedings and render an independent judgment as to whether the appeal is, in fact, wholly frivolous." Wimbush, 951 A.2d at 382, quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). We conclude that Appellant's appeal is frivolous.

¶ 8 The Anders brief challenges discretionary aspects of Appellant's sentence. Appellant was required to "set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence." Pa.R.A.P. 2119(f).

The concise statement must specify where the sentence falls in relation to the sentencing guidelines and what particular provision of the code it violates. Additionally, the statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm. If the statement ...


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