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[U] Commonwealth v. Mozdy

Superior Court of Pennsylvania

February 4, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRIAN STEVEN MOZDY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered May 22, 2013, in the Court of Common Pleas of Erie County, Criminal Division, at No(s): CP-25-CR-0003121-2012

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

ALLEN, J.

Brian Steven Mozdy ("Appellant") appeals from the judgment of sentence imposed after he pled guilty to burglary, resisting arrest, and possessing instruments of crime.[1] Appellant's appointed counsel seeks to withdraw, citing Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). We affirm the judgment of sentence and grant counsel's petition to withdraw.

On March 6, 2013, Appellant pled guilty to the aforementioned crimes. On May 22, 2013, the trial court sentenced Appellant to 18 to 36 months for burglary, a concurrent 9 to 24 months for resisting arrest, and 12 to 24 months for possession of instruments of crime, consecutive to the sentence for burglary. No post-sentence motions were filed.

Appellant filed a notice of appeal on June 21, 2013, and on June 25, 2013, the trial court directed Appellant to file a concise statement of errors complained of on appeal. On July 16, 2013, Appellant's counsel filed a statement of intent to file an Anders/McClendon brief and the trial court, on July 17, 2013, issued a one-sentence "memorandum opinion" indicating that Appellant's statement of intent to file an Anders/McClendon brief "presents the [trial court] with no issues of arguable merit to address." Trial Court Opinion, 7/17/13.

Appellant presents the following issue for our review:
Whether the Appellant's sentence is manifestly excessive, clearly unreasonable and inconsistent with the objectives of the Pennsylvania Sentencing Code?

Anders Brief at 3.

Preliminarily, we recognize that Appellant's counsel has filed a brief pursuant to Anders and its Pennsylvania counterpart, McClendon. See Anders, 386 U.S. 738; McClendon, 434 A.2d at 1187. Where an Anders/McClendon brief has been presented, our standard of review requires counsel seeking permission to withdraw pursuant to Anders to: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; (2) file a brief referring to anything that might arguably 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 him of his right to retain new counsel or raise any additional points that he deems worthy of the court's attention. Commonwealth v. McBride, 957 A.2d 752, 756 (Pa.Super. 2008). Counsel is required to submit to this Court "a copy of any letter used by counsel to advise the appellant of the rights associated with the Anders process." Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.Super. 2007). Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), Appellant's counsel must state the reasons for concluding that the appeal is frivolous in the Anders brief. If these requirements are met, this Court may then review the record to determine whether the appeal is frivolous.

In the instant case, by letter dated October 25, 2013, counsel notified Appellant of her intent to file an Anders brief and petition to withdraw with this Court, and informed Appellant of his rights to retain new counsel and raise additional issues. On October 28, 2013, Appellant's counsel filed an appropriate petition seeking leave to withdraw. Finally, Appellant's counsel has submitted an Anders brief to this Court, with a copy provided to Appellant. We are satisfied that counsel has adhered to the technical requirements set forth in Anders and McClendon, and proceed to address the substantive issue raised in the Anders brief.

Where an appellant challenges the discretionary aspects of a sentence, as in the instant case, there is no automatic right to appeal and the appeal should be considered a petition for allowance of appeal. Commonwealth v. Curran, 932 A.2d 103, 105 (Pa.Super. 2007). Before we can address a discretionary challenge, an appellant must comply with the following requirements:

An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (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.

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).

Here, Appellant filed a timely notice of appeal. However, Appellant failed to preserve his sentencing challenge either in a post-sentence motion or at the sentencing hearing. Consequently, we must conclude that Appellant has waived his challenge to the discretionary aspects of his sentence. See Commonwealth v. Felder, 75 A.3d 513, 515 (Pa.Super. 2013) ("Challenges to the discretionary aspects of a sentence must be raised first in the trial court, either in a post-sentence motion or by presenting them during the sentencing proceedings[;] [t]he failure to do so results in a waiver of all such claims."). Upon independent review of the record, we find no other issues of arguable merit, and conclude that this appeal is frivolous. We therefore affirm the judgment of sentence and grant counsel's petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.


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