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Commonwealth v. Bentz

Superior Court of Pennsylvania

May 22, 2013

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL ERIC BENTZ, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL ERIC BENTZ, Appellant

Appeal from the Judgment of Sentence, June 21, 2012, in the Court of Common Pleas of Susquehanna County Criminal Division at No. CP-58-CR-0000482-2011

Appeal from the Judgment of Sentence, June 21, 2012, in the Court of Common Pleas of Susquehanna County Criminal Division at No. CP-58-CR-0000401-2011

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Appellant, Daniel Eric Bentz, appeals from the judgment of sentence entered on June 21, 2012 in the Court of Common Pleas of Susquehanna County. Appointed counsel, Patrick M. Daly, Esq., has filed a petition to withdraw accompanied by an Anders brief.[1] We grant counsel's withdrawal petition and affirm.

This matter involves two criminal episodes. On September 6, 2011, a criminal complaint was filed against appellant for stealing a pick-up truck from a VFW parking lot on August 27, 2011. Appellant was charged with a felony count of theft by unlawful taking. This case is filed at No. CP-58-CR-0000401-2011, and docketed in the Superior Court at No. 1532 MDA 2012.

While out on bail, appellant and a cohort, Tracey Ramsey, committed a robbery on October 13, 2011. On that date, in front of the victim's house, appellant and Ramsey opened the driver's side door, pulled the victim out of his car, shoved him to the ground, kicked him, and smashed his hand repeatedly on the paved road in order to take his keys. (Notes of testimony, 6/21/12 at 6-7.) The victim, a 72-year-old man, was left in the middle of the street and had to crawl back to his house. (Id. at 7.) This case is filed at CP-58-CR-0000482-2011, and docketed in the Superior Court at No. 1531 MDA 2012.[2] After taking the vehicle, appellant and Ramsey drove to Lackawanna County and committed a burglary. The Lackawanna County matter is not before us.

On May 31, 2012, appellant signed a written guilty plea colloquy. At the June 1, 2012 guilty plea hearing, the court conducted an oral plea colloquy. The plea agreement for the robbery case specifically indicated that there was no agreement that appellant's Susquehanna County sentence would run concurrent to his Lackawanna County sentence. Appellant signed the agreement and accepted a plea of guilty to robbery -- inflicts or threatens bodily injury, a felony of the second degree.

On June 21, 2012, appellant was sentenced to a period of incarceration of not less than 2 years and not more than 10 years for robbery - inflicts or threatens bodily injury. Appellant had a prior record score of 4 which made his standard range sentence 18 to 24 months. This sentence was to be served consecutive to his Lackawanna County sentence. Appellant received a 14 month minimum sentence for the Lackawanna County burglary conviction thereby resulting in an aggregate minimum sentence of 38 months' incarceration between the Susquehanna and Lackawanna County sentences. Additionally, appellant received a 6 to 24-month sentence of incarceration for stealing the pick-up truck from the VFW parking lot. However, under the terms of his plea agreement, this sentence was to run concurrent to his sentence for robbery.

Post-sentence motions were filed and denied in both cases. These appeals followed. Counsel has subsequently filed a petition for leave to withdraw and an Anders brief with this court. Appellant has not responded to the petition to withdraw. "When presented with an Anders brief, this [c]ourt may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (citation omitted).

In order for counsel to withdraw from an appeal pursuant to Anders, certain requirements must be met, and 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 ...

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