J-S61018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MICHAEL MONROE

                            Appellant              No. 1853 WDA 2015


             Appeal from the Judgment of Sentence June 30, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009499-2014


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 29, 2016

        Michael Monroe appeals from the judgment of sentence entered in the

Court of Common Pleas of Allegheny County after he pled guilty to one count

of voluntary manslaughter – unreasonable belief.1    Counsel has petitioned

this Court to withdraw her representation of Monroe pursuant to Anders and

Santiago.2      Upon review, we affirm Monroe’s judgment of sentence and

grant counsel’s petition to withdraw.

        On July 6, 2014, Monroe used a butcher knife to stab and kill his

girlfriend’s son, Dereck Frye, after the couple had engaged in a domestic

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1
    18 Pa.C.S.A. § 2503(b).
2
  Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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dispute.    Monroe admitted to the stabbing, but claimed that he had

committed the act because he believed that Frye was in possession of a gun.

Monroe     was   originally   charged   with   one   count   each   of   voluntary

manslaughter and terroristic threats and two counts of simple assault.

However, the remaining charges were withdrawn when Monroe agreed to

plead guilty to voluntary manslaughter.

      On June 30, 2015, the trial court sentenced Monroe to 75 to 200

months of incarceration. In imposing sentence, the court applied the deadly

weapon enhancement contained in the Sentencing Guidelines. Monroe filed

post-sentence motions in which he asserted, inter alia, that his sentence was

illegal pursuant to Alleyne v. U.S., 133 S.Ct. 2151 (2013).                Monroe

ultimately moved to withdraw his motion, which the court allowed.             This

timely appeal followed.

      As stated above, counsel has filed a motion to withdraw from her

representation of Monroe.        In order to withdraw pursuant to Anders,

counsel must: (1) petition the Court for leave to withdraw, certifying that

after a thorough review of the record, counsel has concluded the issues to

be raised are wholly frivolous; (2) file a brief referring to anything in the

record that might arguably support an appeal; and (3) furnish a copy of the

brief to the appellant and advise him of his right to obtain new counsel or file

a pro se brief to raise any additional points that the appellant deems worthy

of review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.


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2001).    In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court held that, in order to withdraw under Anders,

counsel must also state her reasons for concluding her client’s appeal is

frivolous.

       Instantly, counsel’s petition states that she has made an examination

of the record and concluded the appeal is wholly frivolous. Counsel indicates

that she supplied Monroe with a copy of the brief and a letter explaining his

right to proceed pro se,3 or with newly-retained counsel, and to raise any

other issues he believes might have merit.           Counsel has also submitted a

brief, setting out in neutral form one issue of arguable merit and, pursuant

to the dictates of Santiago, explaining why she believes the issue to be

frivolous.   Thus, counsel has substantially complied with the requirements

for withdrawal.

       Counsel having satisfied the above requirements, this Court must

conduct its own review of the proceedings and render an independent

judgment     as    to   whether     the   appeal   is,   in   fact,   wholly   frivolous.

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

       Monroe claims that the trial court imposed an illegal sentence because

the decision of the United States Supreme Court in Alleyne rendered

unconstitutional the deadly weapon sentencing enhancement under which he
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3
 Monroe has not submitted any additional or supplemental filings to this
Court.



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was sentenced. In Alleyne, the Court held that any fact, other than a prior

conviction, that results in the application of a mandatory minimum sentence

is an element of the crime which must be submitted to the jury and found

beyond a reasonable doubt. Monroe is entitled to no relief.

     We begin by noting that, where an appellant challenges the legality of

his sentence, our scope of review is plenary and our standard of review is de

novo. Commonwealth v. McClintic, 909 A.2d 1241, 1245 (Pa. 2006).

     In sentencing Monroe, the trial court applied the deadly weapon

enhancement contained in the Sentencing Guidelines, see 204 Pa. Code §

303.10, which provides that the court “shall consider” imposing the

enhanced sentence suggested by the guidelines where the offender uses a

deadly weapon in a way that threatened or injured another individual. Id.

Here, Monroe utilized a deadly weapon – namely a butcher knife – in the

commission of a voluntary manslaughter.

     In Commonwealth v. Ali, 112 A.3d 1210 (Pa. Super. 2015), this

Court considered the school-zone sentencing enhancement and distinguished

sentencing enhancements from the mandatory minimums contemplated by

Alleyne.   The Court concluded that Alleyne is inapplicable to the former,

reasoning that:

     The parameters of Alleyne are limited to the imposition of
     mandatory minimum sentences, i.e., where a legislature has
     prescribed a mandatory baseline sentence that a trial court must
     apply if certain conditions are met.           The sentencing
     enhancements at issue impose no such floor.         Rather, the
     enhancements only direct a sentencing court to consider a

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        different range of potential minimum sentences, while preserving
        a trial court’s discretion to fashion an individual sentence. By
        their very character, sentencing enhancements do not share the
        attributes of a mandatory minimum sentence that the Supreme
        Court held to be elements of the offense that must be submitted
        to a jury. The enhancements do not bind a trial court to any
        particular sentencing floor, nor do they compel a trial court in
        any given case to impose a sentence higher than the court
        believes is warranted. They require only that a court consider a
        higher range of possible minimum sentences. Even then, the
        trial court need not sentence within that range; the court only
        must consider it. Thus, even though the triggering facts must be
        found by the judge and not the jury—which is one of the
        elements of an Apprendi[4] or Alleyne analysis—the
        enhancements that the trial court applied in this case are not
        unconstitutional under Alleyne.

Commonwealth v.            Ali,   112    A.3d 1210,      1226   (Pa.   Super.   2015),

reargument denied (May 8, 2015), appeal granted in part, 127 A.3d 1286

(Pa. 2015).5

        Consistent with our holding in Ali, we conclude that the trial court’s

application of the deadly weapon enhancement did not render Monroe’s

sentence illegal under Alleyne.                Rather than prescribing a mandatory

minimum sentence that the court is required to impose, the enhancement

simply increases the “range of potential minimum sentences” to be

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4
    Apprendi v. New Jersey, 530 U.S. 466 (2000).
5
    The Court granted allowance of appeal on the following issue:

        Does a sentencing judge have discretion to consider victim
        impact evidence where the offense is not a “crime against a
        person”?

Ali, 127 A.3d at 1287.



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considered by the court. Id. Thus, the trial court retained its discretion to

fashion an individual sentence “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.” See

42 Pa.C.S.A. § 9721(b).     Accordingly, Monroe’s sentence does not violate

the dictates of Alleyne and he is entitled to no relief.

      Judgment of sentence affirmed. Motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2016




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