J-S75010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DOUGLAS A. KEYS

                            Appellant                No. 2875 EDA 2013


          Appeal from the Judgment of Sentence September 12, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006719-2012


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 16, 2015

        Appellant, Douglas A. Keys, appeals from the September 12, 2013

judgment of sentence, imposing an aggregate five to ten years’ incarceration

following his conviction at a non-jury trial for burglary and possession of an

instrument of crime (PIC).1 Furthermore, Appellant’s counsel filed a petition

to withdraw as counsel with this Court, together with a brief pursuant to

Anders v. California, 386 U.S. 738 (1967) and its progeny, averring the

appeal is wholly frivolous. After careful review, we vacate the judgment of

sentence and remand to the trial court for resentencing.       We also deny

counsel’s petition to withdraw.



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1
    18 Pa.C.S.A. §§ 3502(a)(1) and 907(a), respectively.
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         The certified record discloses the following procedural history pertinent

to this appeal.      Appellant was charged on April 7, 2012, with numerous

offenses in connection with his forced entry into the home of complainant,

Elliot Quattlebaum, while brandishing an air-gun rifle.2 On August 22, 2012,

Appellant filed an omnibus pretrial motion seeking suppression of statements

and physical evidence on various grounds.          The certified record does not

contain any indication of a hearing on Appellant’s omnibus pretrial motion or

a disposition of the motion by the trial court. On June 21, 2013, Appellant

waived his right to a jury trial, and a bench trial proceeded before the trial

court.     At the conclusion of the testimony, the trial court found Appellant

guilty of burglary and PIC and not guilty of the remaining charges.

         On September 12, 2013, the trial court sentenced Appellant to five to

ten years’ incarceration for the burglary conviction.           In so doing, as

requested by the Commonwealth, the trial court applied the mandatory

sentence pursuant to 42 Pa.C.S.A. § 9712.             The trial court sentenced

Appellant to a concurrent one to two years’ incarceration for the PIC charge.

Appellant filed no post-sentence motion.         On October 11, 2013, Appellant

filed a timely notice of appeal. On October 16, 2013, the trial court issued

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2
  The charges included robbery, 18 Pa.C.S.A. § 3701(a)(1)(iii); burglary, 18
Pa.C.S.A. § 3502(a)(1); criminal trespass, 18 Pa.C.S.A. § 3503(a)(1)(i);
theft by unlawful taking, 18 Pa.C.S.A. § 3921(a); receiving stolen property,
18 Pa.C.S.A. § 3925(a); PIC, 18 Pa.C.S.A. § 907(a); simple assault, 18
Pa.C.S.A. § 2701(a); and recklessly endangering another person 18
Pa.C.S.A. § 2705.


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an order directing Appellant to file a concise statement of errors complained

of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925,

within 21 days of the order.      On December 24, 2013, pursuant to Rule

1925(c)(4), in lieu of a concise statement, counsel filed a statement of his

intention to file an Anders brief. The trial court filed a Rule 1925(a) opinion

addressing the sufficiency of the evidence supporting Appellant’s convictions.

On July 23, 2014, counsel filed a motion to withdraw as counsel and

accompanying Anders brief. Appellant has not filed any response.

      In his Anders brief, counsel raises the following issue for our review.

             Was the evidence sufficient to prove burglary and [PIC]?

Anders Brief at 2.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, we review counsel’s Anders brief for

compliance with the requirements set forth by our Supreme Court in

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

                    [W]e hold that in 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,

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              controlling case law, and/or statutes on point that
              have led to the conclusion that the appeal is
              frivolous.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005) and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

              Counsel also must provide a copy of the Anders
              brief to his client. Attending the brief must be a
              letter that advises the client of his right to: (1) retain
              new counsel to pursue the appeal; (2) proceed pro
              se on appeal; or (3) raise any points that the
              appellant deems worthy of the court[’]s attention in
              addition to the points raised by counsel in the
              Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation omitted). If satisfied with counsel’s

compliance, “[o]ur Court must then conduct its own review of the

proceedings and make an independent judgment to decide whether the

appeal is, in fact, wholly frivolous.”    Commonwealth v. Washington, 63

A.3d 797, 800 (Pa. Super. 2013) (citation omitted).

      Instantly, we conclude counsel has not substantially adhered to the

procedural    requirements     of   Anders.       Counsel   avers    he    “made   a

conscientious examination of the record,” but makes no reference to the

unresolved omnibus pretrial motion. Anders Brief at 8. Counsel offers no

explanation for the failure of the trial court to address the issues raised

therein or for the lack of any record if the issues were addressed. This Court

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has held that a counsel’s failure to adequately review and cite to the record

is insufficient to meet the technical requirements of an Anders brief. “The

major thrust of Anders was to assure a careful assessment of any available

claims that an indigent appellant might have.       That end is achieved by

requiring counsel to conduct an exhaustive examination of the record ….”

Commonwealth v.        McClendon,     434    A.2d   1185,   1188   (Pa.   1981)

abrogated     on   other   grounds   by     Santiago,   supra;     See     also

Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2006) (holding

counsel’s failure to secure all transcripts precluded compliance with his

obligation under Anders to “review[] the record to the extent required by

Anders/McClendon”); Commonwealth v. Goodenow, 741 A.2d 783, 786

(Pa. Super. 1999) (holding counsel’s inadequate recital of the procedural

history of a case with references to the record in his Anders brief did not

meet the technical requirements of Anders or evidence counsel’s required

review).

     Upon presentation of a non-compliant Anders brief, we would typically

deny counsel’s motion to withdraw and direct the filing of a compliant

Anders brief or an advocate’s brief.      Commonwealth v. Goodwin, 928

A.2d 287, 289 (Pa. Super. 2007).     However, our independent review has

revealed a sentencing error by the trial court implicating the legality of

Appellant’s sentence, which requires remand to the trial court. Specifically,

the trial court imposed the mandatory sentence on the burglary charge


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pursuant to 42 Pa.C.S.A. § 9712.3              This sentencing provision has recently

been held to be unconstitutional in its entirety as violative of the United

States Supreme Court’s ruling in Alleyene v. United States, 133 S. Ct.

2151 (2013), that facts that increase mandatory minimum sentences must

be submitted to the finder of fact and must be found beyond a reasonable

doubt. Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa. Super.

2014).     Sentencing issues “premised upon Alleyene … implicate[] the

legality of the sentence and cannot be waived on appeal.” Commonwealth

v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).                       “Legality of

sentence     questions    …    may     be      raised   sua   sponte   by   this   Court.”

Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc),

appeal denied, 95 A.3d 277 (Pa. 2014) (citation omitted).                     “An illegal

sentence must be vacated.”           Commonwealth v. Tanner, 61 A.3d 1043,

1046 (Pa. Super. 2013) (citation omitted). “Issues relating to the legality of

a sentence are questions of law….                 Our standard of review over such

questions is de novo and our scope of review is plenary.” Commonwealth

v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citation omitted).
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3
   Section 9712 provides for the imposition of a five-year mandatory
minimum sentence of incarceration for any person convicted of a crime of
violence, which includes burglary under 18 Pa.C.S.A. § 3502(a)(1), if it is
shown by a preponderance of the evidence at sentencing that “the person
visibly possessed a firearm or a replica of a firearm, whether or not the
firearm or replica was loaded or functional, that placed the victim in
reasonable fear of death or serious bodily injury, during the commission of
the offense.” 42 Pa.C.S.A. § 9712.



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      In this case, at the sentencing hearing, the trial court, with apparent

concern for the implications of Alleyene, which had been announced three

months earlier, specifically found “that [Appellant] did visibly possess a

replica of a firearm that placed the victim in reasonable fear of death and

serious bodily injury … and I am making that finding beyond a

reasonable doubt.” N.T., 9/12/13, at 9 (emphasis added). We conclude,

the trial court’s employment of the higher burden of proof is unavailing.

      In Valentine, this Court determined that the mandatory minimum

sentences     imposed   pursuant   to   Sections     9712   and   9713      were

unconstitutional even if the facts that trigger the mandatory minimum

sentence are submitted to the fact-finder and found beyond a reasonable

doubt, instead of by the trial court by a preponderance of evidence at

sentencing.    Valentine, supra at 811-812.        In so concluding, the Court

recognized that our decision in Newman held “that the unconstitutional

provisions of § 9712(c) and § 9713(c) are not severable … and that the

statutes are therefore unconstitutional as a whole.”           Id.; see also

Commonwealth v. Fennell, --- A.3d ---, 2014 WL 6505791 (Pa. Super.

2014) (holding that notwithstanding the fact triggering the imposition of a

mandatory sentence under 18 Pa.C.S.A. 7508 was stipulated to at trial, the

statute was facially unconstitutional under the principles of Newman and

Valentine), Commonwealth v. Wolfe, --- A.3d. ---, 2014 WL 7331915

(Pa. Super. 2014) (holding that the mandatory minimum sentencing


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provision of 42 Pa.C.S.A. 9718(a)(1) was unconstitutional even though the

triggering fact was also an element of the offense for which Appellant was

convicted).

       Based on the foregoing, we conclude the trial court imposed an illegal

sentence when it sentenced Appellant to a mandatory minimum sentence

pursuant to Section 9712. Accordingly, we vacate the September 12, 2013

judgment of sentence and remand to the trial court, with instructions to

resentence Appellant without consideration of the mandatory minimum

sentence at Section 9712, consistent with this memorandum.4 Additionally,

we deny counsel’s petition to withdraw as counsel.

       Judgment of sentence vacated. Case remanded. Petition to withdraw

as counsel denied. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




____________________________________________
4
  We vacate the September 12, 2013 sentence in its entirety to avoid
disrupting the sentencing scheme as a whole. See Commonwealth v.
Williams, 997 A.2d 1205, 1210-1211 (Pa. Super. 2010) (holding it is better
practice to vacate a sentence in its entirety where a correction by the Court
of a part of the sentence may alter the sentencing scheme of the trial court).


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