J-S20038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JORDAN MICHAEL SPOONHOUR                   :
                                               :
                       Appellant               :       No. 1585 WDA 2018

        Appeal from the Judgment of Sentence Entered October 15, 2018
                  In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000156-2018


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                             FILED MAY 31, 2019

        Appellant, Jordan Michael Spoonhour, appeals from the judgment of

sentence entered in the Erie County Court of Common Pleas, following his

negotiated guilty plea to one count of assault by a prisoner.1 We affirm and

grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows. On

September 1, 2016, while incarcerated at SCI-Albion, Appellant and two

accomplices attacked Victim, another inmate. Appellant and his accomplices

repeatedly punched, kicked, and jumped on Victim until Department of

Corrections’ staff intervened.        As a result of the attack, Victim suffered a

concussion, as well as bruising to his face and head. On August 20, 2018,


____________________________________________


1   18 Pa.C.S.A. § 2703(a).
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Appellant entered a guilty plea to one count of assault by a prisoner.       In

exchange, the Commonwealth agreed to make a sentence recommendation

of forty-eight (48) to ninety-six (96) months’ imprisonment.         The court

followed the recommendation and sentenced Appellant accordingly on October

15, 2018. Appellant did not file post-sentence motions, but he timely filed a

notice of appeal on November 6, 2018. On the same day, counsel filed a

Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders2 brief. Counsel

filed a petition for leave to withdraw as counsel and an Anders brief in this

Court on February 12, 2019.

        As a preliminary matter, counsel seeks to withdraw her representation

pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,

978 A.2d 349 (2009). Anders and Santiago require counsel to: (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 the

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 the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.          Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.



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2   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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2007). After confirming that counsel has met the antecedent requirements to

withdraw, this Court makes an independent review of the record to confirm

that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d

266 (Pa.Super. 2018) (en banc).

     In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

        Neither Anders nor [Commonwealth v. McClendon, 495
        Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
        provide an argument of any sort, let alone the type of
        argument that counsel develops in a merits brief. To repeat,
        what the brief must provide under Anders are references
        to anything in the record that might arguably support the
        appeal.

                                  *    *    *

        Under Anders, the right to counsel is vindicated by
        counsel’s examination and assessment of the record and
        counsel’s references to anything in the record that arguably
        supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

        [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.


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Id. at 178-79, 978 A.2d at 361.

      Instantly, Appellant’s counsel has filed a petition to withdraw.      The

petition states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or to proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention.   In the Anders brief, counsel provides a

summary of the facts and procedural history of the case. Counsel’s argument

refers to relevant law that might possibly support Appellant’s issues. Counsel

further states the reasons for the conclusion that the appeal is wholly

frivolous.   Therefore, counsel has substantially complied with the technical

requirements of Anders and Santiago.

      Appellant has not responded to the Anders brief pro se or with newly-

retained private counsel. Counsel raises the following issue on Appellant’s

behalf:

          WHETHER APPELLANT’S SENTENCE IS MANIFESTLY
          EXCESSIVE, CLEARLY UNREASONABLE AND INCONSISTENT
          WITH THE OBJECTIVES OF THE SENTENCING CODE?

(Anders Brief at 3).

      Appellant argues the court abused its discretion by sentencing Appellant

to a lengthy period of incarceration even though Appellant took responsibility

for his actions and admitted his guilt. Appellant alleges that the objectives of

the Sentencing Code could have been achieved without the imposition of such


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a lengthy sentence. Appellant concludes his sentence is manifestly excessive.

Appellant challenges the discretionary aspects of his sentence.            See

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super. 2002) (stating

claim that sentence is manifestly excessive tests discretionary aspects of

sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545

(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating

allegation court ignored mitigating factors disputes discretionary aspects of

sentencing).

      Generally, objections to the discretionary aspects of a sentence are

waived if they are not raised at the sentencing hearing or in a motion to modify

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

         [W]e 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.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Additionally, although “a guilty plea which includes sentence negotiation

ordinarily precludes a defendant from contesting the validity of his...sentence

other than to argue that the sentence is illegal or that the sentencing court


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did not have jurisdiction, open plea agreements are an exception in which a

defendant will not be precluded from appealing the discretionary aspects of

the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super.

2005) (emphasis in original). “An ‘open’ plea agreement is one in which there

is no negotiated sentence.” Id. at 363 n.1.

     When negotiating a plea bargain, if the Commonwealth promises to

recommend a certain sentence, then the Commonwealth is bound to

recommend that      sentence; the     recommendation, however, does not

necessarily bind the trial court, which can deviate from the recommendation,

provided the defendant has the chance to withdraw his guilty plea, unless the

defendant has expressly waived the right to withdraw the plea. See, e.g.,

Commonwealth v. Wallace, 582 Pa. 234, 242 n.5, 870 A.2d 838, 843 n.5

(2005) (citing Commonwealth v. Zuber, 466 Pa. 453, 458 n.4, 353 A.2d

441, 444 n.4 (1976); Commonwealth v. Wilkins, 442 Pa. 524, 528, 277

A.2d 341, 343 (1971)). Moreover, a plea bargain that includes a “sentence

recommendation,” but no agreement for a “stated term,” does not necessarily

preclude   a   challenge   to   discretionary   aspects   of   sentence.   See

Commonwealth v. Dalberto, 648 A.2d 16 (Pa.Super. 1994), appeal denied,

540 Pa. 594, 655 A.2d 983 (1995), cert. denied, 516 U.S. 818, 116 S.Ct. 75,

133 L.Ed.2d 34 (1995).

     Instantly, Appellant entered a guilty plea to one count of assault by a

prisoner, and the Commonwealth made a sentence recommendation of 48 to


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96 months’ imprisonment.     The court followed the recommendation and

sentenced Appellant accordingly. Appellant did not object to the sentence at

sentencing or file post-sentence motions.      Thus, Appellant waived his

sentencing issue. See Mann, supra. Here, Appellant entered a guilty plea

with a known sentence recommendation, and the court imposed the

recommended sentence.      Absent more, the judgment of sentence stands.

Following an independent review of the record, we agree with counsel that the

appeal is wholly frivolous. See Dempster, supra. Accordingly, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019




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