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[U] Commonwealth v. Eschert

Superior Court of Pennsylvania

September 9, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH ESCHERT, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH ESCHERT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 12, 2013 In the Court of Common Pleas of Delaware County Criminal Division at Nos.: CP-23-CR-0001794-2012, CP-23-CR-0001924-2012

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.[*]

MEMORANDUM

PLATT, J.

Appellant, Joseph Eschert, appeals from the judgment of sentence entered following his convictions of simple assault, possession of a controlled substance with intent to deliver (PWID), possession of a controlled substance, and possession of drug paraphernalia.[1] Appellant's counsel has filed a brief and a petition to withdraw under Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the appeal is wholly frivolous. We affirm and grant counsel's petition to withdraw.

The record reflects that Appellant's convictions arose from two separate but related incidents. On March 10, 2012, Appellant became involved in an argument with his roommate and punched him, causing a facial laceration. The police became involved and transported the roommate to the hospital. While at the hospital, the roommate told police that Appellant was selling marijuana from their apartment. Based upon this allegation, the police obtained a search warrant, and, upon execution of the warrant, discovered two ounces of marijuana (packed in six separate bags), pipes, a scale, and sandwich bags.

On January 25, 2013, following a non-jury trial, the trial court convicted Appellant of the aforementioned charges. At sentencing, the Commonwealth argued that a two-year mandatory minimum sentence applied because Appellant's residence was within a school zone. See 18 Pa.C.S.A. § 6317. The sentencing court agreed and imposed an aggregate sentence of not less than two nor more than four years of incarceration. The instant, timely appeal followed. On April 23, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 8, 2013, defense counsel filed a statement of intent to file an Anders[2] brief. On May 16, 2013, the trial court filed an opinion. See Pa.R.A.P. 1925.

On appeal, Appellant raises the following issue for our review:
1. Whether the drug-free school zone mandatory minimum sentencing provision was improperly applied where the purported school was a nursery school?

(Anders Brief, at 3).

Here, Appellant's court-appointed counsel has petitioned for permission to withdraw and has submitted an Anders brief, which is procedurally proper for counsel seeking to withdraw on direct appeal. Court-appointed counsel who seeks to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous 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, supra at 361. When we receive an Anders brief, we first rule on the petition to withdraw and then review the merits of the underlying issues. See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010). In addition, "[p]art and parcel of Anders is our Court's duty to review the record to insure no issues of arguable merit have been missed or misstated." Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

In the instant matter, counsel has complied with all the requirements of Anders and Santiago. Specifically, he has petitioned this Court to withdraw on grounds of frivolity. In addition, after his review of the record, he filed a brief with this Court that provides a summary of the procedural history and facts with citations to the record, refers to any facts or legal theories that arguably support the appeal, and explains why he believes the appeal is frivolous. (See Anders Brief, at 7-9). Lastly, he has attached as an exhibit to the petition to withdraw a copy of the letter sent to Appellant giving notice of his rights and including a copy of the Anders brief and the petition. See Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 2005). Appellant has not responded. Because counsel ...

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