J-S08005-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,          : IN THE SUPERIOR COURT OF
                                       :      PENNSYLVANIA
                 Appellee              :
                                       :
           v.                          :
                                       :
JOJAN CASANOVA-CRUZ,                   :
                                       :
                 Appellant             : No. 656 EDA 2014

         Appeal from the Judgment of Sentence January 22, 2013,
                  Court of Common Pleas, Lehigh County,
            Criminal Division at No. CP-39-CR-0002741-2012

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                  FILED FEBRUARY 27, 2015

     Jojan Casanova-Cruz (“Casanova-Cruz”) appeals from the judgment of

sentence imposed following his conviction, by virtue of guilty plea, of

involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123.   His court-

appointed counsel (“Counsel”) has filed a motion seeking permission to

withdraw and a brief in support thereof pursuant to Anders v. California,

386 U.S. (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). Following our review, we affirm the judgment of sentence and grant

Counsel’s petition to withdraw.

     Counsel seeking to withdraw pursuant to Anders must fulfill certain

requirements.    These requirements and the significant protection they

provide to an Anders appellant arise because a criminal defendant has a

constitutional right to a direct appeal and to counsel on that appeal.
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Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).             We

have summarized these requirements as follows:

            Direct appeal counsel seeking to withdraw under
            Anders must file a petition averring that, after a
            conscientious examination of the record, counsel
            finds the appeal to be wholly frivolous. Counsel must
            also file an Anders brief setting forth issues that
            might arguably support the appeal along with any
            other issues necessary for the effective appellate
            presentation thereof.

            Anders counsel must also provide a copy of the
            Anders petition and brief to the appellant, advising
            the appellant of the right to retain new counsel,
            proceed pro se or raise any additional points worthy
            of this Court's attention.

Id. (citations omitted).

      Moreover, there are requirements as to precisely what an Anders

brief must contain:

            [T]he Anders brief that accompanies court-appointed
            counsel’s petition to withdraw … 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. If counsel has met these obligations, “it then

becomes the responsibility of the reviewing court to make a full examination

of the proceedings and make an independent judgment to decide whether



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the appeal is in fact wholly frivolous.”         Id. at 354 n.5; see also

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.”).

      We conclude that Counsel has complied with these requirements. He

has filed an application with this Court stating that after reviewing the

record, he finds this appeal to be frivolous and without merit.                In

conformance with Santiago, the brief filed by Counsel includes a summary

of the procedural history and sets forth one issue that could arguably support

an appeal.    Counsel also discusses why it would be frivolous to raise this

issue on appeal and states his conclusions to that effect. Counsel states that

he can find no non-frivolous issues that could be raised on appeal. Finally,

Counsel has appended to his petition the letter that he sent to Casanova-

Cruz, which enclosed his application to withdraw and Anders brief, and

advised Casanova-Cruz that he may proceed pro se or with private counsel.

Accordingly, we undertake our independent review to determine whether this

appeal is wholly frivolous.

      The trial court summarized the facts underlying Casanova-Cruz’s

conviction as follows:

             On April 17, 2012, Allentown Police Department
             detectives received a report that a twenty-one year-
             old male, [Casanova Cruz], was engaging in sexual



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          intercourse with a fifteen-year-old female, G.P. The
          same day, G.P.’s mother took her to Sacred Heart
          Hospital in Allentown to be examined upon learning
          that G.P. was having sexual contact with [Casanova-
          Cruz]. A sexual assault kit was utilized and G.P.'s
          underwear was obtained from the hospital.

          Theresa Rentko, a child interview specialist,
          interviewed G.P. During the interview, G.P. admitted
          that she and [Casanova-Cruz] had a “relationship”
          throughout the course of which they engaged in anal
          intercourse approximately ten times between
          February 7, 2012 and April 16, 2012. She indicated
          that after the anal intercourse, she had “white stuff”
          in her underwear, and noted that on two occasions,
          she experienced anal bleeding. She also indicated
          that [Casanova-Cruz] digitally penetrated her vagina
          and had her perform oral sex on him, after which he
          ejaculated in her mouth. G.P. reported that these
          incidents occurred at her residence. She portrayed
          the contact as consensual. [Casanova-Cruz] is G.P.'s
          step-cousin. When G.P. explained the existence of
          the relationship to her mother, her mother did not
          want them together and reported [Casanova-Cruz’s]
          activities to the police.

          [Casanova-Cruz] was interviewed and admitted to
          having sexual relations with G.P. He claimed she was
          still a virgin because he only penetrated her anally.
          He later asserted that he thought she was seventeen
          at first, and learned during their second sexual
          encounter that she was only fifteen. He learned that
          G.P. liked him and the two of them had a
          relationship.

          On May 2, 2012, [Casanova-Cruz] was charged with
          [i]nvoluntary [d]eviate [s]exual [i]ntercourse with a
          [p]erson [l]ess than [sixteen] [y]ears of [a]ge,
          graded as a [f]elony of the [f]irst [d]egree[;]
          [s]tatutory [s]exual [a]ssault, graded as a [f]elony
          of the [s]econd [d]egree[;] [a]ggravated [i]ndecent
          [a]ssault, graded as a [f]elony of the [s]econd
          [d]egree[;] [i]ndecent [a]ssault on a [p]erson less



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            than [sixteen] [y]ears of [a]ge, graded as a
            [m]isdemeanor of the [s]econd [d]egree, and
            [c]orruption of [m]inors, graded as a [f]elony of the
            [t]hird [d]egree. The charges were bound over to the
            Court of Common Pleas on June 19, 2012.
            [Casanova-Cruz] was represented by Attorney
            Gregory R. Noonan, privately retained counsel for all
            relevant proceedings.

            On October 19, 2012, [Casanova-Cruz] entered a
            negotiated guilty plea to [c]ount [o]ne, [i]nvoluntary
            [d]eviate [s]exual [i]ntercourse. On January 22,
            2013, following a sentencing hearing, the Court
            sentenced [him] to a period of six-and-a-half (6½)
            to fifteen (15) years [of incarceration] in a State
            Correctional   Institute,   an    aggravated     range
            sentence. [Casanova-Cruz] did not file any post-
            sentence motions or an appeal.

Trial Court Opinion, 3/20/14, at 1-3 (footnotes omitted).

      Casanova-Cruz filed a pro se PCRA petition and counsel was appointed.

By virtue of an agreement with the Commonwealth, Casanova-Cruz’s post-

sentence and direct appeal rights were reinstated.       Casanova-Cruz filed a

post-sentence motion challenging his sentence as excessive and arguing that

the trial court failed to state sufficient reasons for the sentence on the record

at the time of sentencing. Corrected Motion to Modify Sentence, 2/4/14, at

3.   The trial court denied Casanova-Cruz’s motion, and this timely appeal

follows.

      Counsel presents only one issue of potential merit: Whether the

sentence imposed was manifestly excessive and unreasonable.             Anders

Brief at 7. This claim is addressed to the discretionary aspects of Casanova-




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Cruz’s sentence. The discretionary aspects of a sentence are not appealable

as of right.    Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super.

2000). Before we may review the merits of a challenge to the discretionary

aspects of a sentence, we must determine: (1) whether appellant has filed a

timely notice of appeal; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence; (3) whether

appellant's brief has a fatal defect; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Evans, 901

A.2d 528, 533 (Pa. Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303

(2006).

      The record reveals that Casanova-Cruz’s notice of appeal was timely

filed and that he raised this claim in a post-sentence motion, and so the first

two requirements as set forth above have been satisfied.            We further

conclude that Casanova-Cruz’s brief does not suffer from a fatal defect, as

Counsel has included the requisite statement pursuant to Pa.R.A.P. 2119(f)

in the brief he has filed on appeal. The fourth factor of the Evans test as

set forth above requires that we consider whether the issue presented by

Counsel raises a substantial question requiring us to review the discretionary

aspects of the sentence.         “The determination of what constitutes a

substantial    question   must   be   evaluated   on   a   case-by-case   basis.”

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).                    A



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substantial question exists only when an appellant advances a colorable

argument that the sentence is either inconsistent with a specific provision of

the Sentencing Code or contrary to the fundamental norms which underlie

the sentencing process.    Id.   Presently, Counsel alleges that Casanova-

Cruz’s sentence is inappropriate because the trial court imposed his sentence

without giving “meaningful consideration to any of the relevant factors as is

[sic] set forth in [§ 9721(b) of] the Sentencing Code or set[ting] forth

reasons to justify the length of the minimum sentence.” Anders Brief at 10.

These claims raise substantial questions so as to invoke our review. See

Commonwealth       v.   Riggs,   63   A.3d   780,   786   (Pa.   Super.   2012);

Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003).

      Section 9721(b) of the Sentencing Code provides, in relevant part, as

follows:

            In selecting from the alternatives set forth in
            subsection (a), the court shall follow the general
            principle that the sentence imposed should call for
            confinement that is consistent with the protection of
            the public, the gravity of the offense as it relates to
            the impact on the life of the victim and on the
            community, and the rehabilitative needs of the
            defendant. The court shall also consider any
            guidelines for sentencing and resentencing adopted
            by the Pennsylvania Commission on Sentencing and
            taking effect under section 2155 (relating to
            publication of guidelines for sentencing, resentencing
            and parole and recommitment ranges following
            revocation).    In every case in which the court
            imposes a sentence for a felony or misdemeanor, …
            the court shall make as a part of the record, and
            disclose in open court at the time of sentencing, a



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           statement of the reason or reasons for the sentence
           imposed.

42 Pa.C.S.A. § 9721(b) (footnote omitted). The transcript reveals that the

mother of the victim provided a victim impact statement which indicated

that because of Casanova-Cruz’s actions, the victim and her family have

been in therapy; the victim’s father abandoned the victim and her family;

and the family moved because “of the constant reminder because everything

happened in our home.” N.T., 1/22/13, at 6-7. The trial court considered

the sentencing guideline ranges, as agreed upon by both parties, as well as

the pre-sentence investigation report and the fact that the SOAB Board

determined that Casanova-Cruz is not a sexually violent predator. Id. at 9,

34. The record also reveals the following:

           [Trial court]: Mr. Casanova-Cruz, your casualness
           with how you address the way you victimized the
           young girl [as expressed in the pre-sentence
           investigation report], who is a family member, is so
           disturbing that it is without a doubt a case where you
           do not deserve a mitigated[-]range sentence. For
           you to justify your anal rape of a [fifteen] year old
           girl on the grounds that she was still a virgin
           because of a lack of vaginal penetration is
           astounding and shows a lack of your comprehension
           of how wrong your behavior was.

           [Casanova-Cruz]: May I say something?

           [Trial court]: All right.

           [Casanova-Cruz]: Everything that happened there –
           every time I arrived in the evening – she was not an
           innocent girl. She enticed me all the time. Every
           time that she arrived home, she was wearing [] long



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            pants, and then she would go up to her bedroom and
            change that – wearing a skirt with no pants
            underneath, and she was always getting close to me,
            like, all the time wanting to be with me. And I told
            her that the mother wasn’t going to take this lightly
            because she was a minor, and that I was a cousin of
            her husband, and I appreciate the help she gave me
            allowing me to stay in her house, but on my part, if
            she wouldn’t have provoked me, nothing would have
            happened. That’s all.

            [Trial court]: I think you just confirmed my earlier
            statement. You are a grown man; and to describe
            yourself as being incapable of sexually violating a
            [fifteen][-]year[-]old girl – not once, but as many as
            ten times – leads me to conclude that nothing but an
            aggravated[-]range sentence can convey to you the
            seriousness of what you did. I was going to grant
            you some deference that you spared the victim from
            having to testify at trial, but had you gone to trial,
            you’d probably be going to jail for most of your
            natural life.

Id. at 10-11.

      In this statement, we can discern that the trial court imposed an

aggravated range sentence precisely because of the gravity of the offense as

it relates to the victim, as well as the need to protect the public and what

the trial court perceived as Casanova-Cruz’s incapacity for rehabilitation, in

that Casanova-Cruz attempted to blame the victim for his actions. The trial

court considered the factors it was required to pursuant to § 9721(b), and it

also expressly explained why it imposed a minimum sentence in the

aggravated range of the sentencing guidelines. Accordingly, we agree with

Counsel that these challenges are without merit.




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     Finally, our independent review of the record does not reveal any issue

that would arguably support an appeal.     Accordingly, we grant Counsel’s

petition and affirm Casanova-Cruz’s judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2015




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