J-S45005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    PAUL THOMAS FRICKER,

                             Appellant                No. 560 EDA 2019


        Appeal from the Judgment of Sentence Entered January 9, 2019
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004845-2010


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 07, 2019

        Appellant, Paul Thomas Fricker, appeals from the judgment of sentence

of 6 to 36 months’ incarceration, followed by 2 years’ probation, imposed after

the court revoked a term of probation he was serving following his guilty plea

to criminal attempt to commit aggravated indecent assault.         On appeal,

Appellant seeks to challenge the discretionary aspects of his sentence.

Additionally, his counsel, Patrick J. Connors, Esq., seeks to withdraw his

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

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

careful review, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      Appellant pled guilty to the above-stated offense on January 1, 2011.

Pursuant to the negotiated plea, he was sentenced to 2½ to 5 years’

incarceration, followed by 5 years’ probation. On January 9, 2019, the court

conducted a revocation of probation and resentencing hearing.             There,

Appellant stipulated to having committed technical violations of the conditions

of his probation. N.T., 1/9/19, at 3. The court resentenced him to a term of

6 to 36 months’ incarceration, with a consecutive term of 2 years’ probation.

      Appellant did not file a post-sentence motion, but he filed a timely notice

of appeal on February 7, 2019.      The court ordered him to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal and, in response,

Attorney Connors filed a Rule 1925(c)(4) statement of his intent to file an

Anders brief and petition to withdraw.      The court issued a Rule 1925(a)

opinion on March 11, 2019.

      On June 14, 2019, Attorney Connors filed with this Court a petition to

withdraw and an Anders brief, discussing the following issue that Appellant

seeks to raise on appeal:

      I) Whether the term of incarceratin [sic] imposed herein is harsh
      and excessive under the circumstances due to the court’s decision
      to render a state sentence prior to [Appellant’s] making any
      statement[?]

Anders Brief at 3 (unnecessary capitalization omitted).

      Attorney Connors concludes that this issue is frivolous, and that

Appellant has no other, non-frivolous claims he could pursue herein.

Accordingly,


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     this Court must first pass upon counsel’s petition to withdraw
     before reviewing the merits of the underlying issues presented by
     [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
     290 (Pa. Super. 2007) (en banc).

     Prior to withdrawing as counsel on a direct appeal under Anders,
     counsel must file a brief that meets the requirements established
     by our Supreme Court in Santiago. The 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, 978 A.2d at 361. 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. Nischan, 928 A.2d 349, 353 (Pa. Super.
     2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct a simple review of the record to

ascertain if there appear on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated.”     Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).




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      In this case, Attorney Connors’ Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history, he refers to portions of the record that could arguably

support Appellant’s claim, and he sets forth his conclusion that Appellant’s

appeal is frivolous.     He also explains his reasons for reaching that

determination, and supports his rationale with citations to the record and

pertinent legal authority.   Attorney Connors also states in his petition to

withdraw that he has supplied Appellant with a copy of his Anders brief.

Additionally, he attached to his petition to withdraw a letter directed to

Appellant, in which he informed Appellant of the rights enumerated in

Nischan. Accordingly, counsel has complied with the technical requirements

for withdrawal. We will now independently review the record to determine if

Appellant’s issue is frivolous, and to ascertain if there are any other, non-

frivolous claims he could pursue on appeal.

      Appellant essentially takes issue with a comment by the court at the

outset of the revocation/resentencing hearing.       Specifically, after defense

counsel requested a “county sentence” of 6 to 23 months’ incarceration, the

court replied, “It is not going to be a county sentence. I’ll tell you that right

off the bat, it is not going to be county.” N.T. at 4, 5. Ultimately, the court

imposed a term of incarceration of 6 to 36 months’ imprisonment, ensuring

that Appellant will serve his incarceration at a state correctional institution.

Appellant now contends that the court’s




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      [o]rdering a state term of incarceration [was] unfair and
      unreasonable to [Appellant] because this determination was made
      by the court prior to granting [Appellant] the opportunity to make
      a statement on his own behalf expressing remorse for his actions.
      Had the court given [Appellant] the chance to express himself with
      his right of allocution prior to its determination that it would
      impose state time, the sentence imposed may have been far more
      lenient, as requested by [Appellant’s] attorney.

                                       ***

            [A]lthough the court allowed [Appellant] to speak…, its
      expression that it was imposing a state sentence “right off the bat”
      indicates that [Appellant’s] opportunity for allocution was
      meaningless.

Anders Brief at 10, 11.

      This Court has held that, while the failure to grant a defendant the right

of allocution constitutes a legal error, such a claim is nevertheless waived if

not raised before the trial court. Commonwealth v. Jacobs, 900 A.2d 368,

377 (Pa. Super. 2006) (en banc). Here, Appellant did not raise before the

trial court at sentencing, or in a post-sentence motion, his argument that his

allocution was “meaningless” because the court had already decided the

sentence it was going to impose.      Accordingly, that issue is waived.     See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”).

      In any event, we would reject Appellant’s argument on the merits.

Initially, the court did permit Appellant to exercise his right to allocution, and

Appellant stated the following:

      [Appellant]: I have had some time to reflect on this and I just like
      I said I have really had time to think about this and I really want
      to be a member of society again. I want to do what is right, get
      a job, pay my taxes, do stuff like that. I want to be able to do

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      what is right for the community for once, instead of just screwing
      up.

N.T. at 5.

      It is apparent that the court concluded that Appellant’s best chance at

becoming a productive member of society was to serve his sentence in state

prison, which has more programs to assist Appellant’s rehabilitation. See id.

at 6 (the court’s declaring that state prison has “a better treatment option,

that is the key”); id. at 7 (the court’s informing Appellant that state prison

was in his “best interest” because “[t]he state has better resources to help

you”).   The court also heard from Appellant’s probation officer, who

recommended a state sentence.        Id. at 7.   After accepting the probation

officer’s recommendation and imposing Appellant’s sentence, the court ended

the proceeding with the following exchange with Appellant:

      THE COURT: If you really want to get better you [have] got to
      push for yourself.

      [Appellant]: And[,] believe it or not[,] that is actually what I have
      been really contemplating in the last four months since I have
      been here.

      THE COURT: Well that is good.

      [Appellant]: I am just tired of repeating the same mistakes. It is
      time I grew up and put on the big boy pants.

      THE COURT: All right, well good luck to you. We really hope you
      take advantage of it.

Id. at 10. As Attorney Connors observes, “[t]he court’s conversation with

[Appellant] during the sentencing hearing indicates that the imposition of his

sentence was not above the recommendation of the Board of Probation and



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Parole and was not made with any partiality, prejudice, bias or ill-will.”

Anders Brief at 11-12.

     In light of the record as a whole, we would agree with Attorney Connors.

Therefore, even had Appellant preserved this claim for our review, we would

conclude that the court did not abuse its sentencing discretion.        See

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (“When

considering the merits of a discretionary aspects of sentencing claim, we

analyze the sentencing court’s decision under an abuse of discretion

standard.”) (citation omitted). As such, we affirm Appellant’s judgment of

sentence and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/19




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