J-S22012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTONIO ADAM HOWELL

                            Appellant                No. 1454 MDA 2015


                  Appeal from the Order Entered July 22, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001676-2014


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                                   FILED MAY 27, 2016

        Appellant, Antonio Adam Howell, appeals from the July 22, 2015

aggregate judgment of sentence of 54 months to 16 years’ imprisonment,

imposed by the trial court after Appellant entered a negotiated guilty plea to

21 criminal offenses, including 2 counts of simple assault, 1 count of

aggravated assault, 7 counts of robbery, and 11 counts of conspiracy. 1 With

this appeal, Appellant’s counsel has filed a petition to withdraw and an




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2701, 2702, 3701, and 903, respectively.
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Anders2 brief, stating that the appeal is wholly frivolous.3      After careful

review, we affirm and grant counsel’s petition to withdraw.

        The trial court summarized the relevant factual and procedural history

of this case as follows.

                     On July 31, 2014, [Appellant] and two co-
              conspirators approached John Messner on the street.
              Either [Appellant] or one of his co-conspirators
              pushed a gun into Mr. Messner’s stomach and
              demanded money. When Mr. Messner denied having
              any, the conspirators punched him repeatedly,
              knocking him to the ground. They took two lighters
              from his pocket.       Around the same time, the
              conspirators approached Lenny Roth from behind,
              striking him and causing him to fall to the ground,
              where the conspirators struck and kicked him. He
              was seriously injured, sustaining multiple cuts and
              fractures to his face. He was sent by ambulance to
              Hershey Medical Center. He reported he was robbed
              of his cell phone, wallet, keys and $80.00.

                    On October 28, 2014, the Commonwealth
              charged [Appellant] with 22 counts, including two
              counts of Simple Assault, one count of Aggravated
              Assault, eight counts of Robbery and eleven counts
              of Conspiracy to commit the forgoing crimes. On
              April 29, 2015, the Commonwealth agreed to nolle
              pros one of the robbery charges, and [Appellant]
              entered a guilty plea to all of the remaining counts,
              as charged. On July 22, 2015, [the trial court]
____________________________________________


2
    Anders v. California, 386 U.S. 738 (1967).
3
  In an unpublished memorandum filed on March 4, 2016, we determined
that counsel had failed to include in the certified record the pertinent notes
of testimony as mandated by Commonwealth v. Flowers, 113 A.3d 1246
(Pa. Super. 2015), and remanded the case for counsel to provide the
missing transcripts and file appropriate supplemental pleadings. Counsel
complied on April 26, 2016.



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          imposed a sentence on [Appellant]. In doing so,
          [the trial court] complied with the parties’ plea
          agreement calling for a minimum of 54 months in
          prison.    The trial court also noted numerous
          aggravating factors, including:

               (1)   This was a random           act   of
                     gratuitous violence.

               (2)   All Defendants were young and
                     strong, while one of the victims
                     was elderly and not in good health.

               (3)   One of the victims was injured so
                     severely that he had to be
                     transported to the hospital by
                     ambulance.

               (4)   One of the Defendants possessed a
                     gun and threatened the victims
                     with it.

               (5)   This was [Appellant’s] second
                     robbery.    For his first, he was
                     treated in the juvenile justice
                     system, where he did not take
                     advantage of the rehabilitative
                     opportunities he was offered.

          [The trial court] found that most of the counts
          merged, and only sentenced [Appellant] on Count 1,
          for Robbery of John Messner under 18 P.C.S.A.
          § 3701 § A1ii; Count 2, Criminal Conspiracy to rob
          Mr. Messner under 18 P.C.S.A. § 903 § Aii/18
          P.S.C.A. § 3701 § A1ii; Count 12, Robbery of Lenny
          Roth under 18 P.S.C.A. § 3701 § A1ii; and Count 13,
          Criminal Conspiracy to rob Lenny Roth under 18
          P.S.C.A. § 903 § Aii/18 P.S.C.A. § 3701 § A1ii.

              [The trial court] imposed identical sentences for
          Counts 1 and 12 of 54 months to 16 years in a state
          correctional facility.   Likewise, the sentence on
          Counts 2 and 13 were identical—three to 12 years’
          imprisonment. The sentences imposed on Counts 2,
          12 and 13 were to be served concurrently with the
          sentence imposed on Count 1, for an aggregate

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              sentence of 54 months to 16 years. [The trial court]
              ordered [Appellant] to pay the costs of prosecution
              and a fine of $400. [The trial court] also ordered
              [Appellant] to make restitution to the Estate of Mr.
              Roth in the amount of $267 and pay $1,462.17 to
              the Crime Victims’ Compensation Fund.

                 On August 18th, [2015,] [Appellant’s] counsel filed
              a Notice of Appeal.[4]

Trial Court Opinion, 9/30/15, at 2-4 (footnotes omitted).

       On appeal, Appellant raises the following issues for our review.

              1. Was the sentence imposed so             manifestly
                 excessive as to constitute too          severe a
                 punishment?

              2. Was the sentence imposed manifestly excessive
                 because undue weight was assigned to the gravity
                 of the offenses despite the existence of certain
                 mitigating factors such as [Appellant’s] age and
                 education?

              3. Was    the   sentence     imposed    unreasonably
                 disproportionate to co-defendant’s sentence?

Supplemental Anders Brief at 3.

       “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the
____________________________________________


4
   On August 24, 2015, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant complied on
September 11, 2015. The record does not indicate that Appellant filed a
response to either the Anders brief or supplemental Anders brief.



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requirements set forth by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

                     [W]e hold that in 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.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

              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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation omitted). “Once counsel has satisfied

the above requirements, it is then this Court’s duty to conduct its own

review of the trial court’s proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

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Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

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

“this Court must conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).

      In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Second, counsel

advances relevant portions of the record that arguably support Appellant’s

claims on appeal. Third, counsel concluded, “after a thorough review of the

record and applicable law, undersigned appointed counsel for Appellant

believes this appeal would be wholly frivolous.” Supplemental Anders Brief

at 16.     Lastly, counsel has complied with the requirements set forth in

Millisock.    See Letters from Counsel to Appellant, dated 11/24/15 and

4/26/16.     As a result, we proceed to conduct an independent review to

ascertain if the appeal is indeed wholly frivolous.

      In all three of his issues, Appellant challenges the length of his

sentence, contending it is “too severe,” and the trial court “afforded too

much weight to the aggravating factors that were present and ignored the

mitigating factors,” which resulted in Appellant receiving a sentence that was




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“disproportionate” to that of his co-defendant. Supplemental Anders Brief

at 3, 12-13.

     At the outset, we note that Appellant’s argument pertains to the

discretionary aspects of his sentence.   “Pennsylvania law makes clear that

by entering a guilty plea, the defendant waives his right to challenge on

direct appeal all non[-]jurisdictional defects except the legality of the

sentence and the validity of the plea.”    Commonwealth v. Lincoln, 72

A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d

319 (Pa. 2014). However, when a defendant has entered a plea and it is

apparent from the record that the parties did not agree upon a maximum

term of incarceration, a defendant is entitled to seek appeal of the trial

court’s exercise of discretion in determining the maximum term of the

sentence.   Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super.

2009), appeal denied, 990 A.2d 726 (Pa. 2010).

     Nevertheless, “[t]here is no absolute right to appeal when challenging

the discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant makes an

argument pertaining to the discretionary aspects of the sentence, this Court

considers such an argument to be a petition for permission to appeal.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n

[a]ppeal is permitted only after this Court determines that there is a


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substantial question that the sentence was not appropriate under the

sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (en banc) (internal quotation marks and citation omitted).

      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether   a     petition   for   permission   to   appeal   should   be   granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

              (1) [W]hether appellant has filed a timely notice of
              appeal, Pa.R.A.P. 902, 903; (2) whether the issue
              was properly preserved at sentencing or in a motion
              to reconsider and modify sentence, 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).

Id.

      Instantly, Appellant filed a timely notice of appeal on August 18, 2015.

However, our review of the certified record, including the docket entries,

indicates that Appellant did not file a motion to reconsider or modify

sentence, and did not orally preserve his sentencing issue with the trial court

at sentencing.      N.T., 7/22/15, at 1-13.        We therefore conclude that

Appellant’s sentencing issues are waived. Commonwealth v. Tejeda, 107

A.3d 788, 798-99 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa.


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2015) (we may not review discretionary aspects of sentencing claims when

an appellant fails to preserve them at sentencing or in his post-sentence

motion, even where the appellant has raised the claims in his Pa.R.A.P.

1925(b) statement).

     Accordingly, as Appellant’s sentencing issues are waived, we agree

with counsel that this appeal is wholly frivolous.        Furthermore, our

independent review of the record reveals no additional non-frivolous claims.

We therefore grant counsel’s petition to withdraw and affirm the July 22,

2015 judgment of sentence.

     Judgment of sentence affirmed.       Motion to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2016




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