June 27, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee.
JOSEPH DEARSTYNE, Appellant. COMMONWEALTH OF PENNSYLVANIA, Appellee
JOSEPH DEARSTYNE, Appellant
Appeal from the Judgment of Sentence of September 4, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006166-2008, CP-23-CR-0005729-2008
BEFORE: PANELLA, OLSON and STRASSBURGER, [*] JJ.
Appellant, Joseph Dearstyne, appeals from the judgment of sentence entered on September 4, 2012. On this direct appeal, Appellant's court- appointed counsel has filed both a petition to withdraw as counsel and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant's counsel has complied with the procedural requirements necessary to affect withdrawal. Moreover, after independently reviewing the record, we conclude that the instant appeal is wholly frivolous. We therefore grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.
The trial court has provided us with an able summary of the underlying facts:
On April 18, 2008, [Appellant] was arrested and charged with [driving under the influence of alcohol ("DUI"). This case was docketed at CP-23-CR-0005729-2008 (hereinafter "5729-2008")]. On December 5, 2008, [Appellant] entered into a negotiated plea agreement pursuant to which he was sentenced to a period of confinement of [three to] 24 months [in jail, ] with a [consecutive] probationary period of three years[. The trial court ordered this sentence to run concurrent to the sentence Appellant received at CP-23-CR-0006166-2008 (hereinafter "6166-2008")]. . . .
On July 10, 2008, [Appellant] was arrested and [again] charged with [DUI. This case was docketed at 6166-2008]. On December 5, 2008, [Appellant] entered into a negotiated plea pursuant to which he was sentenced to a period of confinement from [12 to 24] months [in jail, ] with a [consecutive] probationary period of three years[. The trial court ordered this sentence to run concurrent to the sentence Appellant received at 5729-2008]. . . .
On November 3, 2010, [Appellant] began his three-year period of probation. On December 18, 2011, [Appellant] was arrested for [another] DUI offense, for leaving the scene of an accident, and for driving with a suspended license. . . .
The [Pennsylvania Department of Probation and Parole] requested that [the trial court] conduct a [violation of probation ("VOP")] hearing, and it recommended that the [trial c]ourt (1) revoke [Appellant's] probation [at both docket numbers], (2) re-sentence [Appellant] to [a term of one to three years in prison] for the charges at [d]ocket number [6166-2008], and (3) re-sentence [Appellant] to [a term of one to three years in prison] for the charges at [d]ocket number [5729-2008. The Commonwealth recommended that the sentences run concurrently to one another].
On September 4, 2012, [the trial court conducted a Gagnon II hearing, after] which it imposed a sentence of [one to three years in prison] on [both docket numbers and ordered that the sentences run consecutively to one another].
Trial Court Opinion, 11/15/12, at 1-2.
Appellant did not object to the trial court's sentence during the sentencing proceeding and Appellant did not thereafter file a motion to modify his sentence. See N.T. Sentencing, 9/4/12, at 3-17; Pa.R.Crim.P. 708(E).
On October 2, 2012, Appellant filed a notice of appeal from his judgment of sentence. Now on appeal, Appellant's court-appointed counsel has filed a petition for leave to withdraw and has accompanied this petition with an Anders brief. The Anders brief raises the following claim:
Whether the judgments of sentence imposed herein should be vacated since they were unduly harsh and excessive under the circumstances?
Anders Brief at 4.
Before reviewing the merits of this appeal, however, this Court must first determine whether counsel has fulfilled the necessary procedural requirements for withdrawing as counsel. Commonwealth v. Miller, 715 A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy certain technical requirements. First, counsel must "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." Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel's conclusion that the appeal is frivolous; and (4) state[s] 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.
Finally, counsel must furnish a copy of the Anders brief to his client and advise the client "of [the client's] right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention." Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above obligations, "it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous." Santiago, 978 A.2d at 355 n.5, quoting Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981). It is only when both the procedural and substantive requirements are satisfied that counsel will be permitted to withdraw.
In the case at bar, counsel has met all of the above procedural obligations. We must, therefore, review the entire record and analyze whether this appeal is, in fact, wholly frivolous. Our analysis begins with the issue raised in the Anders brief.
As the Anders brief claims, the trial court abused its discretion when it imposed an "unduly harsh and excessive" sentence upon Appellant. Anders Brief at 4. This claim does not challenge the revocation of Appellant's probation or the fact that the trial court imposed a sentence of total confinement upon Appellant. Rather, Appellant's claim challenges the discretionary aspects of his sentence. Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010) (claim that sentence is excessive is a challenge to the discretionary aspects of a sentence).
We note that "sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion." Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.
Super. 2001). Moreover, pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. ; (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007). "The determination of whether a particular case raises a substantial question is to be evaluated on a case-by-case basis. Generally, however, in order to establish that there is a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process." Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal citations omitted).
In the case at bar, Appellant did not object to his sentence during the sentencing proceeding and Appellant did not file a motion to modify his sentence in accordance with Pennsylvania Rule of Criminal Procedure 708(E). See Pa.R.Crim.P. 708(E) ("motion to modify sentence" following revocation of probation). Therefore, since Appellant "never provided the trial [court] with the opportunity to reconsider or modify [his] sentence, [Appellant's discretionary aspects of sentencing claim is] waived [on appeal]. Appellant may not challenge the discretionary aspects of [his] sentence for the first time on appeal." Commonwealth v. Jarvis, 663 A.2d 790, 792 (Pa. Super. 1995); see also Pa.R.A.P. 302(a) ("[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal").
Further, after an independent review of the entire record, we see nothing that might arguably support this appeal. The appeal is, therefore, wholly frivolous. Accordingly, we affirm Appellant's judgment of sentence and grant counsel's petition for leave to withdraw appearance.
Petition for leave to withdraw as counsel granted. Judgment of sentence affirmed.