J-S14020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RICHARD EVANS                              :
                                               :   No. 1539 EDA 2017
                       Appellant               :

          Appeal from the Judgment of Sentence Entered May 5, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014114-2009


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED APRIL 20, 2018

       Appellant Richard Evans appeals from the judgment of sentence entered

on May 5, 2017 for possession with intent to deliver a controlled substance

(“PWID”); knowing and intentional possession of a controlled substance; use

or possession of drug paraphernalia; and possession of an instrument of crime

(“PIC”).1 In addition to this appeal, appellate counsel has filed a petition to

withdraw his representation and an Anders brief. See Anders v. California,

386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We grant counsel’s petition to withdraw and affirm the judgment of

sentence.

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.
135 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), and 18
Pa.C.S.A. § 907(a), respectively.
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        Following a bench trial on June 12, 2012, Evans was found guilty of the

above-referenced crimes. The trial court sentenced him to the then-

mandatory minimum sentence of five to ten years’ of incarceration for the

charge of PWID for being in possession or control of a firearm at the time of

the offense. See 42 Pa.C.S.A. § 9712.1.2 The court also sentenced him to five

years of probation for the charge of PIC, and imposed no further penalty on

the remaining charges.

        Evans filed a post-sentence motion, which the trial court denied on

January 3, 2013. On December 30, 2013, he filed a petition under the Post

Conviction Relief Act3 seeking reinstatement of his right to file a direct appeal.

Evans direct appeal rights were reinstated on September 29, 2015 and he

subsequently filed a timely Notice of Appeal on October 29, 2015. This Court

vacated Evans’ sentence finding that it was illegal in light of Alleyne, and

remanded for re-sentencing. See Commonwealth v. Evans, 159 A.3d 576

(Pa.Super. 2016) (unpublished memorandum).

        On May 5, 2017, the trial court resentenced Evans to concurrent terms

of nine to 23 months of incarceration for the PWID and PIC charges, with

credit for time served and immediate parole. No further penalty was imposed

for the remaining charges. Having served just under five years in custody,
____________________________________________


2 This Court held that pursuant to Alleyne v. United States, 570 U.S. 99,
103 (2013), section 9712.1 was unconstitutional. Commonwealth v.
Newman, 99 A.3d 86, 88 (Pa.Super. 2014) (en banc), appeal denied, 121
A.3d 496 (Pa. 2015)

3   42 Pa.C.S.A. §§ 9541-9546.

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Evans had completed his maximum sentence at the time he was resentenced.

Evans then filed a Notice of Appeal, pro se, the same day. The court ordered

Evans to file a Concise Statement of Matters Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b). He did not comply with that order. On June

22, 2017 the trial court filed its opinion. Counsel then filed with this Court his

petition to withdraw as counsel as well as an Anders brief.

      We first must address counsel’s request to withdraw as Evans’ counsel

before addressing the merits of the issue raised on appeal. Commonwealth

v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005). Pursuant to Anders and

Santiago, when requesting to withdraw 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 file a pro se brief raising additional arguments. Commonwealth

v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013).

      Here, counsel’s petition to withdraw states that he reviewed the record

thoroughly and could find no non-frivolous argument. Additionally, counsel

mailed Evans a copy of the Anders brief and advised him that he had the

right to retain private counsel or raise additional arguments to the court. We

therefore   conclude   that   counsel    has   complied   with   the   procedural

requirements of Anders.




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      We now determine whether counsel’s Anders brief meets the

substantive standards under Santiago. In an Anders brief, 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.” Santiago, 978 A.2d at 361.

      Here, counsel provides a summary of the procedural history and facts

with citations to the record, refers to the sentencing claim as an issue that

could arguably support the appeal, and explains his reasons for concluding

that the appeal is frivolous. Thus counsel has complied with Santiago.

      We now proceed to examine the merits of the issue presented by Evans’

counsel in the Anders brief:

      I.    The trial court abused its discretion by imposing a sentence
            that was at the upper limit of the standard range of the
            sentencing guidelines.

Appellant’s Brief at 2.

      Evans asks us to review the discretionary aspects of his sentence.

However, there is no absolute right to appeal the discretionary aspects of a

sentence. Cartrette 83 A.3d at 1042. Rather, we follow a four-part analysis

before addressing a challenge to discretionary aspects of 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 or modify sentence; (3) whether appellant’s brief includes a concise

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

the discretionary aspects of sentence; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code. See 42 Pa.C.S.A. § 9781(b); Commonwealth v. Austin,

66 A.3d 798, 808 (Pa.Super. 2013). Failure to raise an objection to the

discretionary aspects of a sentence at the sentencing hearing or in a post-

sentence motion results in waiver of the issue. Commonwealth v. Moury,

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

        Here, Evans’ notice of appeal was timely as he filed it the same day that

he was sentenced. However, Evans waived his challenge to discretionary

aspects of sentencing. He did not raise the issue at the sentencing hearing or

in a post-sentence motion. Id.; See Pa.R.A.P. 302 (issues not presented to

the trial court cannot be raised for the first time on appeal). When given the

opportunity to address the trial court, Evans claimed he was not guilty and

made no mention of the sentence imposed. N.T., Re-Sentencing, 5/05/2017

at 7.

        Additionally, even if Evans had preserved the issue, his challenge to his

sentence is moot as he completed his sentence on May 5, 2017. By the date

of his resentencing, May 5, 2017, Evans had served just under five years in

custody, which is more than the nine to 23 months to which he was

resentenced. Id. at 5. Evans claims no civil or criminal consequences from his

sentence, and we are aware of none. His appeal is therefore moot. See

Commonwealth v. King, 786 A.2d 993, 996 (Pa.Super. 2001) (finding

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appellant’s challenge to sentence moot where sentence imposed had expired

and   there     were   no   criminal   or    civil   consequences);   compare

Commonwealth v. Kelly, 418 A.2d 387, 388 (Pa.Super. 1980) (stating when

a criminal defendant appeals his conviction after he has completed his

sentence, appeal is not moot if collateral civil or criminal consequences are

possible).

     Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/18




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