J-S36005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

JUAN CARLOS GONZALEZ

                            Appellant                 No. 2072 MDA 2015


           Appeal from the Judgment of Sentence November 16, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0002032-2012
                                          CP-36-CR-0002033-2012



BEFORE: DUBOW, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 31, 2016

        Appellant, Juan Carlos Gonzalez, appeals from the judgment of

sentence of 17-34 years’ incarceration, imposed after he pled guilty to four

counts of robbery.1 With this appeal, Appellant’s counsel has filed a petition

to withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.

After careful review, we affirm and grant counsel’s petition to withdraw.

        Appellant was charged with committing four felony robberies as

follows: on December 8, 2011, by placing a box cutter to the victim’s throat
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    Anders v. California, 386 U.S. 738 (1967).
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(charged at Dkt. No. 2032 of 2012); and between January 4-5, 2012, by

displaying a BB gun at a flower shop, a jewelry store, and a grocery store

(charged under three counts at Dkt. No. 2033 of 2012).          N.T., 10/10/12, at

3-4.   On October 10, 2012, Appellant appeared before the trial court and

entered his guilty plea.     The Commonwealth explained that at the time of

the robberies, Appellant was on parole for burglary, and had a history

involving aggravated assault.          Id. at 8.   Appellant responded that at 46

years of age, he had been a heroin addict “for about a decade,” expressed

his remorse, and apologized for his crimes. Id. at 9-11.

       In    imposing    Appellant’s     aggregate   sentence   of   17–34   years’

incarceration, the trial court explained:

               [Appellant] is 46 years of age which shows sufficient
            maturity to understand the significance of his acts.
            [Appellant] has a limited education; however, certainly
            there’s no indication here that he is incapable of
            understanding the rules of society and complying. He is
            able to read, write and understand the English language.

                He has a somewhat limited work history; however,
            there [are] indications that he has held jobs previously so
            it’s certainly indicative of the fact that he is capable of
            following directions.

               [Appellant] does have a significant prior criminal history
            from the standpoint of the crime of violence and the
            burglary in there, as referenced by the Assistance District
            Attorney.

               I’ve reviewed the presentence report in detail. I’ve also
            considered the guidelines and penalties as authorized by
            the legislature.

               Finally, I have considered the character and statement
            of [Appellant], as well as the arguments of counsel.


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             [Appellant], I would agree with the assessment of [the
          Commonwealth], there comes a point where one’s
          behavior calls for the most serious remedies. You’ve had
          opportunities in the past to get your life in order, to deal
          with whatever problems are behind this behavior. For
          whatever reason, you’ve failed to take advantage of that
          and I think at this point the protection of society is what’s
          paramount in my mind in terms of this sentence.

N.T., 10/10/12, at 11-12.

        Appellant filed a timely direct appeal, after which the Superior Court

affirmed his judgment of sentence.             Commonwealth v. Gonzalez (Pa.

Super. Sept. 27, 2013) (unpublished memorandum).                On July 17, 2014,

Appellant filed a petition for relief pursuant to the Post Conviction Relief Act

(PCRA), 3 in which he referenced the U.S. Supreme Court’s decision in

Alleyne v. United States, 133 S.Ct. 2151 (2013).                  The PCRA court

appointed PCRA counsel on July 23, 2014. Counsel filed an amended PCRA

petition on September 9, 2014, and asserted that Appellant was improperly

sentenced to mandatory minimums in a manner that had been ruled

unconstitutional     pursuant     to   both    Alleyne   and   Commonwealth    v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). The Commonwealth, in

its June 18, 2015 response, stated it was “constrained to agree” that

Appellant was entitled to be resentenced because his original sentence under

Dkt. No. 2033 of 2012 included mandatory minimums pursuant to 42


____________________________________________


3
    42 Pa.C.S. §§ 9541-9546.



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Pa.C.S. § 9712 of the Judicial Code, relating to offenses committed with

firearms.

      The trial court convened a resentencing hearing on November 16,

2015, and clarified that “the sentences that I previously imposed, now that

there is no mandatory sentence involved, are actually within the mitigated

range, if all we use are the guidelines.”   N.T., 11/16/15, at 3.   The court

additionally stated that it had reviewed correspondence from Appellant, and

“re-reviewed the victim impact statements.” Id. at 4. The court then heard

from Appellant, and re-imposed an aggregate sentence of 17–34 years’

incarceration.   The court explained that the sentence was 7–14 years at

Docket No. 2032 of 2012 and, at Docket No. 2033 of 2012, the sentence

was 5–10 years at “each of Counts 1 through 3,” with “Count 2 to be served

consecutively to Count 1 [and] Count 3 to be served concurrently with the

sentence imposed on Count 2.” Id. at 5-6. Appellant filed his timely appeal

on November 19, 2015.

      In the Anders brief, counsel raises a single issue for our review:

         DID THE LOWER COURT IMPOSE A SENTENCE THAT IS
         FREE OF LEGAL ERROR?

Anders Brief at 4.

      “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) (internal citation omitted).   An Anders brief shall comply with the


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requirements    set   forth   by   the   Supreme   Court   of   Pennsylvania   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, 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

meet the following obligations to his or her client.

         Counsel must also 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 the Anders brief.

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

quotation marks and citation omitted).         “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”         Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,

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“this Court must conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnotes and citations omitted).

        In   this   appeal,   we   observe     that   counsel’s   February   6,   2016

correspondence to Appellant indicates that counsel provided a copy of the

Anders brief to Appellant and advised Appellant of his right to either retain

new counsel or proceed pro se on appeal, and to raise “any additional

points.”

        Further, counsel’s Anders brief complies with prevailing law in that

counsel has provided a procedural and factual summary of the case with

references to the record. Counsel additionally advances relevant portions of

the record that arguably support Appellant’s claims on appeal. Ultimately,

counsel cites his reasons and conclusion that Appellant’s “claim is frivolous,”

and that he “finds no non-frivolous issues to present.” Anders Brief at 9.4

        We recognize, as did counsel, that “Pennsylvania law makes clear that

by entering a guilty plea, the defendant waives his right to challenge on

direct appeal all non[-]jurisdictional defects except the legality of the

sentence and the validity of the plea.”           Commonwealth v. Lincoln, 72

A.3d 606, 609 (Pa. Super. 2013) (internal citation omitted), appeal denied,


____________________________________________


4
    The Commonwealth has declined to file a brief in this matter.



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87 A.3d 319 (Pa. 2014); see also Anders Brief at 6.         Appellant has not

challenged the validity of his guilty plea, and we agree with counsel that the

oral colloquy conducted by the trial court at the time of Appellant’s plea was

sufficient to assure that the plea was properly made.

      Appellant generally asserts that his sentence is illegal. Anders Brief

at 4, 5. “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) (citations omitted).

      Our review of the record confirms that Appellant entered a guilty plea

to four counts of robbery, each with possession or use of a deadly weapon.

At resentencing, the trial court imposed an aggregate sentence of 17-34

years’ incarceration.   Counsel correctly observed that Appellant’s sentence

falls “within the maximum penalties permitted by law and . . . within the

recommended guideline sentencing range for each respective charge.”

Anders Brief at 6. As noted above, the trial court explained at resentencing

that “the sentences I previously imposed, now that there is no mandatory

sentence involved, are actually within the mitigated range if all we use are

the guidelines.” N.T., 11/16/15, at 3. The court also stated that it had re-

reviewed information provided at Appellant’s original sentence. Id. at 4.

      It is well-settled that a sentence is illegal when it is not statutorily

authorized or it exceeds the statutory maximum sentence. Commonwealth

v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009). Such is not the case

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before us.    Appellant pleaded guilty to robbery under 18 Pa.C.S. §

3701(a)(1)(ii), which applies to a person who commits a theft while

“threaten[ing] another with or intentionally put[ting] him in fear of

immediate serious bodily injury.” A robbery under that provision is a felony

of the first degree, id. § 3701(b)(1), and the maximum sentence is 20

years, id. § 1103(1). The trial court imposed a sentence — 7 to 14 years at

Docket No. 2033 of 2012, and 5 to 10 years on each count at Docket No.

2034 of 2012, with the third count to run concurrent to the second — that

was below this statutory maximum. The trial court calculated the standard

sentence ranges for the robbery convictions by applying deadly weapon

sentencing enhancements, and at neither docket did the court impose a

minimum sentence that was more than one-half of the maximum sentence.

The sentence was therefore lawful under 42 Pa.C.S. § 9756(b)(1).

      Based on the foregoing, we agree with counsel that the illegal

sentence issue raised by Appellant lacks merit.        In addition, we have

reviewed the certified record consistent with Flowers and have discovered

no additional arguably meritorious issues. Accordingly, we grant counsel’s

petition to withdraw, and affirm the trial court’s judgment of sentence.

      Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2016




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