February 24, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
MALCOLM DAVIS Appellant
Appeal from the Judgment of Sentence February 4, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000840-2012
BEFORE: BENDER, P.J., PANELLA, J., and MUSMANNO, J.
Appellant, Malcolm Davis, appeals from the judgment of sentence entered February 4, 2013, by the Honorable David W. Lupas, Court of Common Pleas of Luzerne County. Additionally, Davis's court-appointed counsel, Caelie McCormick Sweigart, Esquire, has filed an application to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After careful review, we affirm and grant the petition to withdraw.
On February 4, 2013, Davis entered guilty pleas to one count each of delivery of a controlled substance (heroin) and criminal use of a communication facility at case number 1323 of 2012, an additional count of delivery of a controlled substance (cocaine) at case number 837 of 2012, and one count of receiving stolen property at case number 840 of 2012. Pursuant to the plea agreement, the Commonwealth agreed that Davis would receive two terms of two to four years' imprisonment at numbers 837 of 2012 and 1323 of 2012, to be served concurrently. See Plea Agreement, 10/11/12. The agreement further stipulated that any sentence imposed at 840 of 2012 was to be served consecutively, but there was no agreement as to the length of the sentence imposed. Id.
On February 4, 2013, the trial court sentenced Davis in accordance with the plea agreement to concurrent sentences of two to four years' imprisonment at numbers 837 and 1323 of 2012, and to a consecutive term of one to two years' imprisonment at number 840 of 2012. Davis subsequently filed a motion to modify sentence, which the trial court denied. This timely appeal followed.
Preliminarily, we note that Attorney Sweigart has requested to withdraw and has submitted an Anders brief in support thereof contending that Davis's appeal is frivolous. The Pennsylvania Supreme Court has articulated the procedure to be followed when court-appointed counsel seeks to withdraw from representing an appellant on direct appeal:
[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 arguably believes 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.
Commonwealth v. Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 361 (2009).
We note that Attorney Sweigart has complied with all of the requirements of Anders as articulated in Santiago. Additionally, Attorney Sweigart confirms that she sent a copy of the Anders brief to Davis as well as a letter explaining to Davis that he has the right to proceed pro se or the right to retain new counsel. A copy of the letter is appended to Attorney Sweigart's petition, as required by this Court's decision in Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005), in which we held that "to facilitate appellate review, … counsel must attach as an exhibit to the petition to withdraw filed with this Court a copy of the letter sent to counsel's client giving notice of the client's rights." Id., at 749 (emphasis in original).
We will now proceed to examine the issue set forth in the Anders brief, which Davis believes to be of arguable merit. Davis argues that the "imposition of a sentence of a minimum 12 to a maximum 24 months incarceration to run consecutively to the previously-imposed sentences is harsh and excessive[.]" Anders Brief at 1. This claim raises a challenge to the discretionary aspects of Davis's sentence.
A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) (citation omitted). When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. See Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super. 2005). "Two requirements must be met before we will review this challenge on its merits." McAfee, 849 A.2d at 274. "First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence." Id. "Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code." Id. That is, "the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process." Tirado, 870 A.2d at 365. We examine an appellant's Rule 2119(f) statement to determine whether a substantial question exists. See id. "Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Id.
In the present case, Davis's appellate brief contains the requisite 2119(f) concise statement, and, as such, is in technical compliance with the requirements to challenge the discretionary aspects of a sentence. As noted, Davis argues that the sentence imposed at number 840 of 2012 was harsh and excessive because it runs consecutive to the sentences imposed at numbers 837 and 1323 of 2012. This argument fails to raise a substantial question for our review. We note that where, as here, "a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code." Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012) (en banc) (citation omitted). "Furthermore, the imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment." Id. We do not find such extreme circumstances in the case sub judice. Therefore, we find no abuse of discretion in the trial court's imposition of sentence.
After examining the issue contained in the Anders brief and undertaking our independent review of the record, we concur with counsel's assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel is granted. Jurisdiction relinquished.