J-S12008-15

                               2015 PA Super 57

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

EDWARD ZEIGLER,

                          Appellant                   No. 2248 EDA 2013


              Appeal from the Judgment of Sentence May 2, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001450-2012


BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

OPINION BY BOWES, J.:                                FILED MARCH 20, 2015

       Edward Zeigler appeals from the judgment of sentence seven to

fourteen years incarceration to be followed by ten years probation imposed

by the trial court after he pled guilty to aggravated assault and persons not

to possess a firearm.       Counsel has filed a petition to withdraw from

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

       We decline to permit counsel to withdraw at this stage and remand

with directions to counsel to file either a merits brief or a supplemental

Anders brief addressing whether Appellant’s triggering New York robbery

offense for the persons not to possess a firearm was a juvenile adjudication

or a conviction.    See Commonwealth v. Hale, 85 A.3d 570 (Pa.Super.

2014), allowance of appeal granted, __ A.3d __ (Pa. 2014) (filed July 2,

*
    Former Justice specially assigned to the Superior Court.
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2014) (discussing grading of persons not to possess a firearm where prior

offense was a juvenile adjudication).1

      The trial court delineated the following facts underlying Appellant’s

entry of his guilty plea.

      On October 19, 2011, the complainant, Javier Cancel was sitting
      alone at the Cove bar, chatting with the bartender, and having a
      few beers. The Defendant and Ms. Ann Marie Thorsen, who were
      seated in a lounge area behind the barstools, were making a lot
      of noise and were goofing around. The Defendant came up
      numerous times to the bar to order drinks and had some words
      with Mr. Cancel. Video surveillance showed that the Defendant
      appeared to be bothering Mr. Cancel, leaning on him, putting his
      arm around him, and making comments. At one point, Mr.
      Cancel got up from his seat for a few moments during which
      time the Defendant sat down on Mr. Cancel's bar stool even
      though there were plenty of other bar stools available. When Mr.
      Cancel came back, he and the Defendant began to elbow each
      other and argue. The Defendant started swearing at Mr. Cancel
      and told him to come outside and fight. Mr. Cancel remained at
      the bar for a few moments, and the Defendant and a female
      companion went outside the bar. Mr. Cancel then did get up and
      leave to go outside to see what was going on; he was
      anticipating engaging in a fistfight with the Defendant. When Mr.
      Cancel got outside, the Defendant told the female to leave the
      area. He headed immediately toward Mr. Cancel and threw at
      least three punches. Mr. Cancel was able to duck and avoid
      those initial punches and then told the Defendant, ''What is that?
      All you've got?" At this time the Defendant, who was only five
      feet away, pulled a firearm from his front waistband area and
      held it with his arm directly outstretched at chest height and
      pointed it at Mr. Cancel. He fired at least three times. Mr. Cancel
      put his right forearm up to shield his face; one of the bullets
      entered his forearm. The Defendant then walked southbound on
      Richmond Street where Joseph Rayner saw a firearm in his hand.

1
  If Appellant’s New York robbery offense was a juvenile adjudication, under
current Pennsylvania law, his ten-year probationary sentence for the person
not to possess a firearm would exceed the statutory maximum sentence
allowable.

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      The Defendant then walked to his car which was parked on
      Melvale Street where he removed his jacket and most of his
      clothing and put the clothing inside his vehicle. The Defendant
      threw the gun (a .380 caliber firearm) in an empty lot nearby.
      Wearing only a black undershirt, he cut through an abandoned
      house and ran to Tilton Street. Police Officer McGuire, who was
      responding to the area, was traveling westbound on Tilton Street
      when he spotted the Defendant (who matched the flash
      information) hiding between two parked cars. Once Officer
      McGuire stopped his vehicle, the Defendant darted out and
      started running in the opposite direction. Officer McGuire
      pursued on foot and was able to catch the Defendant with the
      assistance of at least three other officers and adult male
      neighbors from the block.

      Mr. Rayner identified the Defendant as the male he saw carrying
      the gun down Richmond Street, and Mr. Cancel identified the
      Defendant without any hesitation at the preliminary hearing. The
      three fired cartridge casings were examined, and it was
      determined that they were fired from the same gun, that being a
      .380 which was found in the nearby alley.

Trial Court Opinion, 1/28/14, at 1-2 n.1.

      The Commonwealth initially charged Appellant with attempted murder,

aggravated assault, persons not to possess a firearm, carrying an unlicensed

firearm, carrying a firearm on the public streets of Philadelphia, terrorist

threats, simple assault, and recklessly endangering another person.       The

persons not to possess a firearm charge arose because Appellant previously

committed a first-degree robbery as a fifteen-year-old juvenile in New York.

According to the representations of the Commonwealth in a motion to

preclude bail, this resulted in a conviction and jail sentence, rather than an

adjudication of delinquency.



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      Appellant entered an open guilty plea to the aggravated assault and

person not to possess a firearm charges. The Commonwealth nolle prossed

the remaining counts. The court sentenced Appellant on May 2, 2013, to the

aforementioned period of incarceration on the aggravated assault charge

and ten years probation for the firearms violation. Appellant filed a timely

motion for reconsideration of his sentence, alleging that the court sentenced

him in excess of a mandatory minimum. The trial court denied that motion

on July 2, 2013.

      This timely appeal ensued.    The trial court directed Appellant to file

and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.   Appellant complied, raising three issues:       (1) his plea was

involuntary; (2) his sentence was excessive; and, (3) the court erred in

denying his motion for reconsideration. The trial court authored its Pa.R.A.P.

1925(a) decision. Appellant’s counsel now files a petition to withdraw and

an accompanying Anders brief, contending that there are no non-frivolous

issues to be reviewed.2

      As we do not address the merits of issues raised on appeal without

first reviewing a request to withdraw, we review counsel’s petition to

withdraw at the outset.     Commonwealth v. Cartrette, 83 A.3d 1030

(Pa.Super. 2013) (en banc).     The procedural requirements for withdrawal


2
 This Court remanded for the appointment of new counsel on July 22, 2014.
The trial court appointed current counsel on July 24, 2014.

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require counsel to: 1) petition for leave to withdraw and state that, after

making a conscientious examination of the record, counsel has concluded

that the appeal is frivolous; 2) provide a copy of the Anders brief to the

defendant; and 3) inform the defendant that he has the right to retain

private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court’s attention. Id.

     Counsel’s petition to withdraw provides that he made a conscientious

review of the record and concluded that there are no non-frivolous issues.

Counsel notified Appellant that he was withdrawing and furnished Appellant

with copies of both the petition to withdraw and Anders brief. Additionally,

counsel informed Appellant of his right to retain new counsel or proceed pro

se to raise any issues he believes this Court should consider. Thus, counsel

has satisfied the procedural requirements of Anders.

     Counsel having complied with the procedural dictates of Anders, we

next consider whether counsel’s Anders brief meets the substantive

requirements of Santiago. Under Santiago, an Anders brief 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.



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      Counsel provided the factual and procedural background of this case.

He also discusses his reasons for determining that Appellant’s appeal is

frivolous, and provides legal authority as to why he has concluded that the

appeal is wholly frivolous.      Specifically, counsel has comprehensively

outlined the governing law relative to guilty plea withdrawals and the

voluntariness of a plea, as well as addressed Appellant’s sentencing claim.

      Accordingly, we proceed to the merits of this appeal and our own

independent review of the entire record. See Anders, supra at 744 (“the

court—not counsel—then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous.”) (emphasis

added); Commonwealth v. Goodwin, 928 A.2d 287, 292-293 (Pa. Super.

2007) (en banc) (finding that Anders requires that this Court conduct an

independent review of the record to discern if there are additional,

nonfrivolous issues that counsel failed to address); Commonwealth v.

Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (“We now must conduct an

independent review of the record to determine whether the issues identified

by Harden in this appeal are, as counsel claims, wholly frivolous, or if there

are any other meritorious issues present in this case.”).

      Counsel begins by accurately noting that a guilty plea generally waives

all defects and defenses unrelated to jurisdiction, the legality of the

sentence, and the validity of the plea.    Commonwealth v. Main, 6 A.3d

1026 (Pa.Super. 2010). He points out that every court of common pleas has

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jurisdiction over matters arising out of the Pennsylvania Crimes Code.

Anders brief at 9 (citing Commonwealth v. Bethea, 828 A.2d 1066 (Pa.

2003)).

      Continuing, counsel discusses the law pertaining to whether a plea is

involuntary. Counsel accurately recognizes that we consider the totality of

the circumstances in ascertaining whether a plea was knowing, voluntary,

and intelligent.   Id. (citing Commonwealth v. Flanagan, 854 A.2d 489,

500 (Pa. 2004)). In addition, counsel has outlined the six areas of inquiry

under Pa.R.Crim.P. 590 and discussed each of those factors. Those factors

include:

      1) Does the defendant understand the nature of the charges to
      which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right to
      a trial by jury?

      4) Does the defendant understand that he or she is presumed
      innocent until found guilty?

      5) Is the defendant aware of the permissible ranges of sentences
      and/or fines for the offenses charged?

      6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super. 2008).

      Appellant acknowledged at his plea that he was aware of the elements

of the crimes and the district attorney fully delineated the facts supporting

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the plea. In addition, Appellant admitted that he understood that he had the

right to a jury trial and the court undertook an extensive colloquy on his trial

rights. The court informed Appellant that, if he elected to have a trial, he

was presumed innocent and that the Commonwealth bore the burden of

establishing his guilt beyond a reasonable doubt.

      The court also queried Appellant regarding his understanding of his

plea and explained that he was entering an open guilty plea with no

sentencing agreement.     Appellant also stated that no promises had been

made to induce him to plead guilty.         Further, the court explained the

applicable range of sentences and fines for aggravated assault and persons

not to possess a firearm. However, an issue has arisen as to whether the

maximum sentence for the firearms charge was correctly set forth.

Accordingly, we cannot yet conclusively state that Appellant’s plea was

intelligently entered and we address the grading of his firearms offense issue

after discussing the second claim analyzed by counsel.

      The second issue addressed by counsel pertains to the discretionary

aspects of Appellant’s sentence.     To adequately preserve a discretionary

sentencing claim, the defendant must present the issue in either a post-

sentence motion, or raise the claim during the sentencing proceedings.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en

banc). In the non-Anders context, the defendant must “preserve the issue

in a court-ordered Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P.

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2119(f) statement.”    Id.    Where counsel files an Anders brief, this Court

has reviewed the matter even absent a separate Pa.R.A.P. 2119(f)

statement.    See Commonwealth v. Wilson, 578 A.2d 523 (Pa.Super.

1990); see also Commonwealth v. Lilley, 978 A.2d 995 (Pa.Super.

2009). Hence, we do not consider counsel’s failure to submit a Rule 2119(f)

statement as precluding review of whether Appellant’s issue is frivolous.

      We add that, “[t]here is no absolute right to appeal when challenging

the discretionary aspect of a sentence.” Cartrette, supra at 1042. “[A]n

appeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

sentencing code.” Id.        When considering the merits of a discretionary

aspects of sentencing claim, we analyze the sentencing court’s decision

under an abuse of discretion standard. Commonwealth v. Dodge, 77 A.3d

1263, 1274 (Pa.Super. 2013). In conducting this review, we are guided by

the statutory requirements of 42 Pa.C.S. § 9781(c) and (d).      Id. Section

9781(c) provides that this Court shall vacate a sentence and remand under

three circumstances:

      (1) the sentencing court purported to sentence within the
      sentencing guidelines but applied the guidelines erroneously;

      (2) the sentencing court sentenced within the sentencing
      guidelines but the case involves circumstances where the
      application of the guidelines would be clearly unreasonable; or

      (3) the sentencing court sentenced outside the sentencing
      guidelines and the sentence is unreasonable.

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42 Pa.C.S. § 9781(c). In addition, we consider:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      Appellant’s position in his post-sentence motion was essentially that

the aggravated assault sentence was excessive and that the court should

have considered that his prior robbery occurred over fifteen years earlier

when he was a juvenile. In his 1925(b) statement, Appellant baldly averred

that his sentence was excessive. Generally, a bald excessiveness claim does

not raise a substantial question.      See Dodge, supra (collecting and

discussing nuances of excessiveness sentencing challenges).   However, an

excessiveness claim in conjunction with an assertion that the court did not

adequately consider a mitigating factor may present a substantial question.

Id.

      Counsel notes that the sentencing court provided its reasons for

sentencing Appellant, and that, because the sentence fell within the

standard sentencing guideline range, it was not excessive. In this regard,

the parties agreed that Appellant’s prior record score under the sentencing



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guidelines was a two. The offense gravity score for his aggravated assault

was an eleven. Considering the deadly weapon used enhancement, 204 Pa.

Code § 303.10(a)(2); 204 Pa. Code 303.17(b), 3          the standard guideline

range was between five and one-half years to seven years incarceration. The

court sentenced Appellant within the guideline range. We add that the trial

court in this matter considered a pre-sentence report; therefore, it is

presumed that the court adequately considered relevant mitigating and

aggravating   factors.     Commonwealth        v.   Fowler,   893    A.2d   758,

766 (Pa.Super. 2006).

      Instantly, Appellant’s sentence is not clearly unreasonable. Appellant

fired a gun three times at an individual at relatively close range. The court

considered a pre-sentence report and sentenced Appellant within the

standard sentencing guideline range where a person uses a weapon during

the commission of his crime. Moreover, the court explained its reasons for

its sentence on the record.      Thus, we agree that Appellant’s excessive

sentencing challenge is frivolous.   For similar reasons, Appellant’s position

that the trial court erred in denying motion for reconsideration fails.

       We add that we are aware that a mandatory minimum statute exists

for Appellant’s aggravated assault crime since he admitted to visibly

3
  The sentencing guidelines applicable to Appellant were those readopted
and amended September 6, 2008, made applicable to offenses committed
on or after December 5, 2008. See 38 Pa.B. 4971; 204 Pa. Code § 303.1
et. seq. The deadly weapon used enhancement matrix under the former
guidelines was found under 204 Pa. Code § 303.18.

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possessing a firearm during its commission. 42 Pa.C.S. § 9712. Based on

decisions from this Court, imposing such a mandatory is illegal.           See

Commonwealth v. Ferguson, 2015 PA Super 1; cf. Commonwealth v.

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).                   However, the

sentencing court exceeded the mandatory minimum sentence when it

applied the standard guideline range sentence where a deadly weapon was

used. Hence, the court did not sentence the defendant based on the

mandatory statute, and his sentence is not illegal on that ground.

      Nonetheless, as mentioned above, our independent review of the

record has revealed a potential non-frivolous issue that relates to the legality

of Appellant’s persons not to possess a firearm sentence.        At Appellant’s

guilty plea hearing the Commonwealth outlined the grounds for Appellant’s

person not to possess a firearm offense as follows.

      In this case, we’re talking about the .380 caliber firearm on the
      date of this incident, and also that you had a prior felony
      conviction—and I’m talking about the robbery—that makes you
      ineligible to possess a firearm. And even if it was a juvenile
      adjudication, even if it was a juvenile case, because it was a
      felony of the first degree, that robbery, that means you can
      never have a gun again. So by having a gun when you had the
      juvenile case for the F1 robbery, that would be why we would be
      able to prove you guilty of the 6105.

N.T., 3/4/13, at 18.

      At this point, Appellant indicated he was confused because, according

to his attorney, that robbery offense had been expunged.             The court

provided that, as far as it knew, Appellant had a felony conviction.          A

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discussion was then held off the record between the prosecutor and counsel,

followed by an off the record discussion between Appellant and his lawyer.

      Here, the record also contains a Commonwealth motion that indicates

that Appellant served jail time for the New York robbery, which would

suggest he was convicted as an adult despite having been a juvenile.

However, the guilty plea transcript is ambiguous as to whether Appellant

was adjudicated delinquent of the New York felony robbery or convicted of

that offense.4 Pursuant to Hale, supra, an adjudication would reduce the

grading of Appellant’s offense and could result in his ten year probationary

sentence being illegal. Accordingly, we direct counsel to file either a merits

brief or a clarifying supplemental Anders brief with respect to this issue and

any issue related thereto within forty-five days of the filing of this decision.

The Commonwealth shall have thirty days from that filing to respond.

      Case remanded. Jurisdiction retained.




4
   The certified record does not contain the confidential pre-sentence report
considered by the trial court. Hence, we cannot glean from that document
whether Appellant was convicted or adjudicated delinquent for the New York
robbery. However, we do note that the parties agreed that Appellant’s prior
record score was a two, and a first-degree felony robbery adjudication or
conviction is considered a four-point offense. 204 Pa. Code 303.7; 204
Pa.Code 303.15. Four-point juvenile offenses lapse if committed before the
individual’s fourteenth birthday. 204 Pa. Code 303.6. The lapse of the
offense for purposes of the sentencing guidelines would not remove that
charge from consideration with respect to the persons not to possess a
firearm statute.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2015




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