J-S05040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

JULIE RENEE WINTERS

                           Appellant                No. 1184 WDA 2014


     Appeal from the Judgment of Sentence entered February 20, 2014
               In the Court of Common Pleas of Erie County
             Criminal Division at No: CP-25-CR-0001796-2013

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 27, 2015

      Appellant, Julie Renee Winters, appeals from the judgment of sentence

imposed on February 20, 2014 in the Court of Common Pleas of Erie County

following her conviction for simple assault, 18 Pa.C.S.A. § 2701(a)(3).   In

the brief filed by her counsel in accordance with Anders v. California, 386

U.S. 938 (1969), as refined by Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009), Appellant contends her sentence was manifestly excessive and

not individualized.    Her counsel concurrently filed a petition for leave to

withdraw. For the reasons that follow, we grant counsel’s petition for leave

to withdraw and affirm Appellant’s judgment of sentence.

      On January 2, 2014, Appellant entered a no contest plea to a charge of

simple assault stemming from a “love triangle” incident in which she waved

a knife in front of a man and another woman in a driveway in Wayne
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Township in Erie County. Notes of Testimony, Plea Hearing, 1/2/14, at 8-9;

12. On February 20, 2014, the trial court imposed a sentence of nine to 24

months at the Pennsylvania Department of Corrections.            A motion to

reconsider sentence filed on March 3 was denied the following day. A timely

notice of appeal was filed on March 21, 2014 but was discontinued at the

request of plea counsel.         By order dated July 16, 2014, the trial court

granted Appellant’s motion to reinstate her appellate rights and directed

Appellant to file an appeal within ten days of the order. Appellant complied,

filing the instant appeal on July 21, 2014.       The trial court subsequently

directed Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

       On August 11, 2014, appointed appellate counsel filed a statement of

intent to file an Anders/McClendon brief1 in lieu of a 1925(b) statement.

In response, the trial court issued a one-sentence Memorandum Opinion

dated August 14, advising there were no issues to address in light of

counsel’s statement of intent to file an Anders brief.


____________________________________________


1
   Although the title of counsel’s petition suggested she would file an
Anders/McClendon brief, the brief filed with this Court appropriately refers
to Commonwealth v. Santiago, supra, requiring that counsel state the
reasons for concluding the appeal is frivolous, rather than comply with the
standard set forth in Commonwealth v. McClendon, 434 A.2d 1185 (Pa.
1981), abrogated by Santiago.




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      On October 30, 2014, appellate counsel filed her Anders brief with

this Court along with a petition for leave to withdraw, including a letter to

Appellant advising her, inter alia, of the right to retain other counsel or

pursue her claims pro se.         By letter dated November 3, 2014, the

Commonwealth advised this Court of its intent not to file a responsive brief.

Appellant filed a pro se response to the Anders brief by letter dated January

27, 2015 and docketed on February 2, 2015.

      In her Anders brief, counsel presents one issue that arguably

supports the appeal. Specifically, she questions whether “[t]he sentence in

this case was manifestly excessive and clearly unreasonable, and not

individualized as required by law, in that it failed to take into account the

fact that [Appellant] had children to care for.” Appellant’s Brief at 1.

      We may not address the merits of Appellant’s issue without first

reviewing the request to withdraw.      Commonwealth v. Rojas, 874 A.2d

638, 639 (Pa. Super. 2005). As this Court recognized in Commonwealth v.

Cartrette, 83 A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in

Santiago did not change the procedural requirements for requesting

withdrawal from representation.

      Counsel must: 1) petition the court for leave to withdraw stating
      that, after making a conscientious examination of the record,
      counsel has determined that the appeal would be frivolous;
      2) furnish a copy of the brief to the defendant; and 3) advise the
      defendant that he or she has the right to retain private counsel
      or raise additional arguments that the defendant deems worthy
      of the court's attention.


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Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.

Super. 2009)).

      We conclude counsel has satisfied the procedural requirements set

forth in Anders.      In the petition to withdraw, counsel explains her

conclusion that, based on a review of the case, there are no meritorious

issues to be raised on Appellant’s behalf and that proceeding with the case

would be frivolous.   In addition, counsel furnished a copy of the appellate

brief to Appellant and advised Appellant of her right to retain new counsel or

act on her own behalf to raise additional arguments or points for this Court’s

consideration.

      Having concluded counsel satisfied the procedural requirements of

Anders, we must ascertain whether the brief satisfied the substantive

mandates prescribed in Santiago.        In Santiago, our Supreme Court

announced:

     [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.




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       In the Anders brief, counsel has included a statement of the case that

includes a procedural history of the case.       Counsel has satisfied the first

requirement.2

       The second required element of an Anders brief is reference to

anything in the record that counsel believes arguably supports the appeal.

Here, counsel suggests that the trial court failed to consider mitigating

circumstances when sentencing Appellant, including the fact appellant has

three minor children and the fact Appellant and her victim subsequently

reconciled their differences. Appellant’s Brief at 3. Counsel has satisfied the

second Anders requirement.



____________________________________________


2
  We are constrained to admonish counsel for inaccuracies in the statement
of the case, including that Appellant entered a guilty plea when in fact she
entered a no contest plea; that “Mr. Winters swung a knife toward Isabelle
Wells and another woman in a driveway” when in fact Ms. Winters swung a
knife toward Isabelle Wells and a man; and that Appellant was sentenced to
9 to 14 months in prison when she actually was sentenced to a term of nine
to 24 months.        While some of these inaccuracies may simply be
typographical errors, they are nevertheless unwarranted errors that cannot
be justified. However, at the same time, because they are not so egregious
as to defeat the requirement for a summary of facts and procedural history
of the case, we shall consider that requirement satisfied.

      We also note, for future filings, that counsel should understand that
the Pa.R.A.P. 2111(a)(3) briefing requirement for a statement of the scope
and standard of review does not call for counsel to define scope and
standard of review. Rather, the rule anticipates that counsel will include a
statement of the scope and the standard of review to be applied to the
matters before this Court on appeal.




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       Counsel also has satisfied the third element of Anders, stating her

conclusion that the appeal is frivolous.         Appellant’s Brief at 6.    Finally,

counsel provided her reasons for concluding the appeal is frivolous. Counsel

included reference to facts of record and citation to case law addressing the

trial court’s discretion in imposing sentences, noting the trial court’s concern

with Appellant’s prior history, which included not only an adjudication as a

juvenile but also several convictions for assault, terroristic threats and

related offenses as an adult, along with five summary offenses since 2011.3

Appellant’s Brief at 3-6.        Moreover, counsel recognizes the trial court’s

pronouncement that the sentence imposed was in the low end of the

standard range in light of Appellant’s acceptance of responsibility for the

events. Appellant’s Brief at 6; Notes of Testimony, Sentencing, 2/20/14, at

8. Counsel has satisfied the fourth and final element of the Anders test.

       Having determined the procedural and substantive requirements of

Anders are satisfied, we must conduct our own independent review of the

record to determine if the issue identified in this appeal is, as counsel

asserts, wholly frivolous, or if there are any other meritorious issues present

in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)

(“[T]he court—not counsel—then proceeds, after a full examination of all the


____________________________________________


3
  Appellant was 25 years of age at the time of sentencing.                 Notes of
Testimony, Sentencing, 2/20/14, at 4.



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proceedings, to decide whether the case is wholly frivolous. If it so finds, it

may grant counsel’s request to withdraw.”).

      Again, the issue raised by Appellant involves the sentence imposed by

the trial court following Appellant’s no contest plea. Appellant contends the

sentence is “manifestly excessive and clearly unreasonable, and not

individualized as required by law, in that it failed to take into account the

fact that [Appellant] had children to care for.” Appellant’s Brief, at 1. As

such, Appellant presents a challenge to the discretionary aspects of her

sentence.

      In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this

Court reiterated:

      Appellant is not entitled as of right to a review of such a
      challenge. Our jurisdiction over a claim regarding the
      discretionary aspects of sentence must be established as follows:

         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. 720; (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. § 9781(b).

Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super.   2010)   (internal   quotation   marks,   citations   and   modifications

omitted)).




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        Appellant filed a timely notice of appeal on July 21, 2014, following the

July 16 order reinstating her direct appeal rights. Further, she filed a timely

motion for reconsideration of sentence contending the trial court failed to

give to proper weight to her rehabilitative potential, the fact she has three

minor children, and evidence that she and her victim reconciled their

differences and were on friendly terms. Motion for Reconsideration, 3/3/14,

at 1.    In her brief filed with this Court, she included a Pa.R.A.P. 2119(f)

statement of the reasons relied upon for allowance of appeal with regard to

the discretionary aspects of sentence.        Having satisfied the first three

elements of the test, we turn to the fourth element, whether there is a

substantial question under 42 Pa.C.S.A. § 9781(b) that the sentence

appealed from is not appropriate.

        In Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (plurality)

our Supreme Court held a claim that a sentence within statutory limits is

manifestly excessive can raise a substantial question. Id. at 627-28. “It is

also true that a claim of a harsh or excessive sentence can, at times, raise a

substantial question.”    Commonwealth v. Kalichak, 943 A.2d 285, 292

(Pa. Super. 2008) (citing Commonwealth v. Malovich, 903 A.2d 1247,

1252 (Pa. Super. 2006)).       “In general, an appellant raises a substantial

question by advancing a plausible claim that the sentencing court's actions

were inconsistent with a specific provision of the sentencing code or were




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contrary to the fundamental norms underlying the sentencing process.”

Malovich, 903 A.2d at 1252 (citation omitted).

      There is no indication in the record before us that the trial court failed

to   consider   Appellant’s   personal   circumstances,   ignored   mandatory

sentencing factors under 42 Pa.C.S.A. § 9721(b), or in any other way

imposed a sentence that can be characterized as harsh or excessive in

relation to the underlying circumstances.      Appellant has not advanced a

plausible claim that the trial court’s actions were inconsistent with any

provision of the sentencing code or were contrary to the fundamental norms

underlying the sentencing process. As the trial court explained:

      The [c]ourt has considered the Pennsylvania Sentencing Code,
      the presentence report and the Pennsylvania Guidelines on
      Sentencing. The [c]ourt has also considered the statements of
      defense counsel, [Appellant], and the attorney for the
      Commonwealth. The [c]ourt has considered [Appellant’s] age,
      her background, character, and rehabilitave needs; the nature
      and circumstances and seriousness of the ofense and the
      protection of the community.

      [Appellant] has come forward and plead guilty and accepted
      responsibility for her actions, and that is to her credit.

      The [c]ourt is, as the district attorney was, concerned because
      [Appellant’s] prior history goes back 12 years to when she was a
      juvenile and includes simple assault, adjudication; terroristic
      threats, adjuciation; another simple assault, another simple
      assault, another terroristic threats, another aggravated assault,
      a simple assault, another simple assault, an intimidation of
      witness or victim; and then one, two, three, four – five summary
      offenses since 2011. And then this charge. This has been going
      on for a long time. It’s been going on for a long time. And even
      after this offense, you were convicted of harassment before the
      ditrict justice. . . . You did another crime after you committed
      this crime. And I can’t overlook all of this. And then you’re

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      before the [c]ourt for another assault. . . . You had an
      opportunity under juvenile supervisions.      You’ve also been
      sentenced to the Erie County prison, you did 11 and a half to 23
      months for simple assault back in 2007, which is the same
      charge you’re here before the court now. I gave you a break in
      2008 by giving you probation, an intermediate punishment, for
      another simple assault and intimidation of witnesses. And after
      serving all that time in the county jail, probation, parole, your
      punishment, here you are back before the [c]ourt on another
      simple assault.

      Plus since that time you have committed five summary offenses;
      disorderly conduct, harassment, disorderly conduct, disorderly
      conduct, harassment. I don’t know when you spend any time
      with your kids because you’re out committing crimes all the
      time. So I don’t know what to do here but I can tell you it’s got
      to stop. . . . The [c]ourt will order the following sentence, which
      is from the low end of the standard range of the sentencing
      guidelines because [Appellant] has accepted responsibility:
      [Appellant] will be ordered to pay the costs of prosecution, pay a
      fine of $50. She will be ordered incarcerated, a minimum period
      of which will be nine months and a maximum period which will
      [be] 24 months. She is not RRRI eligible. And that is a state
      sentence.

Notes of Testimony, Sentencing, 2/20/14, at 6-9.

      It is obvious the trial court was aware of and carefully considered the

facts, including Appellant’s background and the “mitigating circumstances”

Appellant suggests were not taken into consideration. It is further obvious

that the trial court made an intelligent and informed decision in crafting

Appellant’s sentence. There is no hint of bias, partiality, prejudice, ill-will or

manifest unreasonableness on the part of the trial court. Therefore, we find

no abuse of discretion. Nor do we find any other meritorious issue present

in this case. Her appeal is, as counsel asserted, wholly frivolous. Therefore,

we shall grant counsel’s petition for leave to withdraw.

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      Appellant’s    response     to    the   Anders    brief   does     not   alter   our

determination.      In her response, Appellant notes she and her victim

reconciled their differences since the incident leading to this conviction. She

also claims evidentiary items provided to plea counsel are now missing.

Further, she contends her sentence was unreasonable “because there was

no knife.”   Appellant’s Pro Se Response to Anders Brief, 1/27/15, at 1.

Nothing in Appellant’s letter suggests that the sentence imposed was

manifestly excessive or violated sentencing guidelines.

      Appellant     also   uses   her     response     to   highlight    some    of    her

accomplishments achieved during her incarceration, including receipt of her

G.E.D.,   completion       of   programs      in   victim   awareness      and    money

management, and pursuit of programs in violence prevention and grief

sharing. Id. at 2. She contends she wants to pursue schooling and to work

with cancer patients after experiencing the pain of her own father’s death

from cancer. She expresses her desire to live a productive life and promises

her “name will not appear in the system ever again.”               Id.    We commend

Appellant for working toward future goals and her desire to lead a

productive, law-abiding life. However, in terms of her past record and the

sentence she is currently serving, Appellant has not provided any support for

her claim of an excessive sentence or one that is not individualized.

Therefore, we affirm her judgment of sentence.




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     Counsel’s petition for leave to withdraw is granted.   Judgment of

sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2015




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