February 11, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
MICHAEL J. CHITSWARA, Appellant
Appeal from the Judgment of Sentence March 14, 2013 In the Court of Common Pleas of Luzerne County Criminal Division No(s).: CP-40-CR-0001329-2012, CP-40-CR-0001330-2012, CP-40-CR-0001334-2012
BEFORE: MUNDY, WECHT, and FITZGERALD, [*] JJ.
Appellant, Michael J. Chitswara, appeals from the judgment of sentence entered in the Luzerne County Court of Common Pleas following his open guilty pleas for burglary,  receiving stolen property,  theft by unlawful taking,  identity theft,  and defiant trespass. Appellant's counsel has filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), with this Court. We grant counsel's petition and affirm the judgment of sentence.
We adopt the facts set forth in the trial court's opinion. See Trial Ct. Op., 5/29/13, at 1-2. After a presentence investigation, on March 14, 2013, the court sentenced Appellant to an aggregate term of thirty to sixty months' imprisonment. Appellant filed a timely post-sentence motion alleging that the court should reconsider its sentence because Appellant had been participating in various drug and alcohol treatment programs and he was subsequently accused—but not yet charged—of driving under the influence ("DUI"). The court denied Appellant's post-sentence motion on March 25, 2013. Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
On October 29, 2013, Appellant's counsel filed a petition to withdraw with this Court. Appellant did not file a pro se brief with this Court. "[T]his Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Garang, 9 A.3d 237, 240 (Pa.Super. 2010) (citation omitted).
[T]he three requirements that counsel must meet before he or she is permitted to withdraw from representation [are] as follows:
First, counsel must petition the court for leave to withdraw and state that after making a conscientious examination of the record, he has determined that the appeal is frivolous; second, he must file a brief referring to any issues in the record of arguable merit; and third, he must furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or to himself raise any additional points he deems worthy of the Superior Court's attention.
Id. (citations omitted).
[I]n the Anders brief that accompanies court-appointed counsel's petition to withdraw, 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 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, 978 A.2d at 361.
[I]n Pennsylvania, when counsel meets his or her 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."
Id. at 355 n.5 (citation omitted).
Instantly, in counsel's Anders brief, he stated that he made a conscientious examination of the record. He summarized the factual and procedural history with citations to the record. He referred to every issue and everything in the record that he believes arguably supports the appeal. He articulated the facts from the record, case law, and statutes that led him to conclude that the appeal is frivolous. He furnished a copy of the brief to Appellant. He also advised him of his right to retain new counsel or to himself raise any additional points pro se that he deems worthy of the Court's consideration. We find that Appellant's counsel has complied with all the requirements set forth above. See id. at 361; Garang, 9 A.3d at 240. Therefore, we now review the underlying issues on appeal. See Santiago, 978 A.2d at 355 n.5.
The Anders brief contends the trial court abused its discretion by sentencing Appellant to the middle of the standard range of the Sentencing Guidelines without considering his drug addiction and efforts to remedy same. The brief also claims the court considered Appellant's uncharged criminal conduct and should not have imposed consecutive sentences.
This Court has stated that
[c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Prior to reaching 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, 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. ; (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).
Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa.Super. 2006) (some citations and punctuation omitted). The sentencing court "essentially mandate[s]" consideration of "uncharged criminal conduct for sentencing purposes . . . ." Commonwealth v. Shugars, 895 A.2d 1270, 1278 (Pa.Super. 2006) (citation omitted).
[T]he Rule 2119(f) statement must specify where the sentence falls in relation to the sentencing guidelines and what particular provision of the Code is violated (e.g., the sentence is outside the guidelines and the court did not offer any reasons either on the record or in writing, or double-counted factors already considered). Similarly, the Rule 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm (e.g., the sentence is unreasonable or the result of prejudice because it is 500 percent greater than the extreme end of the aggravated range.).
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa.Super. 2000) (en banc).
Instantly, Appellant timely appealed and included a Pa.R.A.P. 2119(f) statement in his brief. See Evans, 901 A.2d at 533. Appellant, however, in his post-trial motion did not claim the trial court abused its discretion or otherwise committed error in imposing sentence. See Appellant's Mot. to Modify and Reduce Sentence, 3/22/13. Appellant only asked the court to reconsider its sentence because he had been undergoing treatment for drug and alcohol dependency and was accused of DUI. See id. Because Appellant did not preserve the consecutive-sentence claim raised in the Anders brief, we need not resolve the substantive merits. See Evans, 901 A.2d at 533. Further, the trial court has the authority to consider uncharged criminal conduct when crafting an appropriate sentence. See Shugars, 895 A.2d at 1278. Our independent review of the record reveals no other issue of arguable merit. See Santiago, 978 A.2d at 355 n.5. Accordingly, we conclude that the appeal is frivolous and grant counsel's petition for leave to withdraw.
Counsel's petition for leave to withdraw granted. Judgment of sentence affirmed.
IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY
COMMONWEALTH OF PENNSYLVANIA
CRIMINAL DIVISION NOS: 1329, 1330, 1334 OF 2012
AND NOW, this 29th day of May, 2013, IT IS HEREBY ORDERED that the attached Opinion Pursuant to Rule 1925(a)(1) is entered in response to Defendant's Notice of Intention to File Anders' Brief and/or Concise Statement of Matters Complained of an Appeal pursuant to Pa.R.A.P. 1925.
The Luzerne County Clerk of Courts is ORDERED and DIRECTED to immediately transmit the entire record in this case to the Superior Court of Pennsylvania and serve a copy of this Order and Opinion on all counsel of record pursuant to Pa.R.Crim.P. 114.
OPINION PURSUANT TO RULE 1925(a)(1)
HONORABLE MICHAEL T. VOUGH JUDGE
This matter arises from three informations filed by the Luzerne County District Attorney against Defendant, Michael Chitswara. Information numbers 1329 and 1330 of 2012 charges Defendant with burglary, theft by unlawful taking or disposition, criminal conspiracy, receiving stolen property and criminal trespass. Information number 1334 charges Defendant with forgery, theft by unlawful taking or disposition, receiving stolen property, criminal conspiracy, identity theft, violations concerning licenses and criminal trespass as a defiant trespasser.
Defendant signed written plea agreements on December 14, 2012 and entered guilty pleas to burglary and receiving stolen property on information 1329, burglary on information 1330 and theft by unlawful taking, identity theft and defiant trespass on information 1334.
Sentencing took place on March 14, 2013 and Defendant received twelve to twenty-four months on both burglary charges with the sentence on information 1330 to run consecutive to the sentence on information 1329. On information 1334, Defendant was sentenced to six to twelve months on theft by unlawful taking consecutive to the sentence imposed on information 1330. The Defendant received consecutive one year terms of probation on the identity theft and defiant trespass charges. Defendant was given credit for serving 292 days of incarceration prior to sentencing.
On March 22, 2013, Defendant filed a Motion to Modify and Reduce Sentence, This Motion was denied by the Court by Order dated March 25, 2013. Defendant filed a timely Notice of Appeal on April 11, 2013. An Order was issued by this Court on April 12, 2013 which required a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.C.P. 1925(b)(1) be filed by Defendant within twenty-one days.
On May 15, 2013, appellate counsel filed a Motion for Extension of Time to File Concise Statement of Matters Complained of on Appeal Pursuant to Pa.R.C.P. 1925 Nunc Pro Tunc which was granted by the Court on the same date. Also on May 15, appellate counsel filed a Notice of Intent to File Anders' Brief and/or Concise Statement of Matters Complained of on Appeal Pursuant to Pa.R.C.P. 1925. In the Notice, appellate counsel indicated his intention, pursuant to Pa.R.A.P. 1925(c)(4), to file a brief in the Superior Court of Pennsylvania pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
Appellate counsel has provided notice of intention to file an Anders/McClendon Brief and we have been presented with no allegations of error committed by this Court during the guilty plea hearing or sentencing. Appellate counsel must now file an appropriate brief with the Superior Court.
An appellant provides the functional equivalent of no concise statement when he provides one that is too vague to allow the trial court an opportunity to identify the issues raised on appeal. Commonwealth v. Cannon, 954 A, 2d 1222 (Pa.Super. 2008). When appellant fails to identify the issues sought to be pursued on appeal in a concise manner, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues. Id. If a trial court has to guess what issues appellant is appealing, no meaningful review can be conducted. Id.
Appellate counsel did not file a substantive 1925(b) Statement and indicated his intention to file an Anders/McClendon brief with the Superior Court of Pennsylvania. As a result, there are no identifiable issues raised on appeal. Defendant's judgment of sentence should be affirmed.