J-S39020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GERALD WOLFE,

                            Appellant                No. 1237 MDA 2015


              Appeal from the Judgment of Sentence June 9, 2015
                in the Court of Common Pleas of Luzerne County
              Criminal Division at Nos.: CP-40-CR-0003522-2014
                            CP-40-CR-0003526-2014


BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 06, 2016

        Appellant, Gerald Wolfe, appeals from the judgment of sentence

imposed following his open guilty plea.         Appellant’s counsel seeks to

withdraw from representation pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

We deny counsel’s petition to withdraw, affirm in part, vacate in part, and

remand for resentencing consistent with this decision.1

        We take the following facts from the trial court’s opinion and our

independent review of the certified record.      On April 7, 2015, Appellant
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  In response to counsel’s petition to withdraw, Appellant filed an application
for relief. Based on our disposition, we deny the application as moot.
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entered an open guilty plea to the charge of burglary at docket number

3522-2014, and to burglary and receiving stolen property at docket number

3526-2014.      The charges related to Appellant’s theft of jewelry from the

victims’ homes.

       On June 9, 2015, the trial court sentenced Appellant at docket number

3522-2014 to not less than three nor more than six years of incarceration.

At docket number 3526-2014, the court sentenced Appellant to consecutive

terms of not less than two nor more than four years’ incarceration on the

burglary conviction, and not less than two nor more than four years of

incarceration on the receiving stolen property conviction. On June 11, 2015,

Appellant filed a motion to modify his sentence, which the court denied on

June 15, 2015. Appellant timely appealed.2 On January 28, 2016, counsel

filed his petition to withdraw and Anders brief on the basis that the appeal


____________________________________________


2
  On July 21, 2015, the court ordered Appellant to file a statement of errors
complained of on appeal within twenty-one days. See Pa.R.A.P. 1925(b).
On September 8, 2015, Appellant’s counsel filed a Rule 1925(c) statement
advising the court of his intent to file an Anders brief, and in which he
alleges that, on August 11, 2015, the court granted him an extension of time
within which to file the statement. (See Rule 1925(c) Statement, 9/08/15);
see also Pa.R.A.P. 1925(c)(4). Our review of the certified record and the
docket in this matter does not reveal that such an order was filed. However,
the court filed an opinion on December 11, 2015 in which it addressed the
discretionary aspects of Appellant’s sentence, and did not recommend
waiver. (See Trial Court Opinion, 12/11/15, at unnumbered pages 2-3);
see also Pa.R.A.P. 1925(a). Therefore, we will not find Appellant’s appeal
waived for his counsel’s failure to file the statement in a timely manner.
See Commonwealth v. Veon, 109 A.3d 754, 762 (Pa. Super. 2015).



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is frivolous.   On February 16, 2016, Appellant responded to counsel’s

petition to withdraw.

      The standard of review for an Anders brief is well-settled.

      Court-appointed counsel who seek to withdraw from
      representing an appellant on direct appeal on the basis that the
      appeal is frivolous 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) file a brief
            referring to anything that arguably might support the
            appeal but which does not resemble a “no-merit”
            letter or amicus curiae brief; and (3) furnish a copy
            of the brief to the defendant and advise the
            defendant of his or her right to retain new counsel or
            raise any additional points that he or she deems
            worthy of the court’s attention.

            [T]his Court may not review the merits of the underlying
      issues without first passing on the request to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations

and some quotation marks omitted). Further, our Supreme Court ruled in

Santiago, supra, that Anders briefs must contain “a discussion of

counsel’s reasons for believing that the client’s appeal is frivolous[.]”

Santiago, supra at 360.

      Instantly,   counsel’s   Anders   brief   and   application   to   withdraw

substantially comply with the applicable technical requirements and reveal

that he has made “a conscientious examination of the record [and]

determined that the appeal would be frivolous[.]”        Lilley, supra at 997

(citation omitted). Additionally, the record establishes that counsel served

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Appellant with a copy of the Anders brief and application to withdraw, and a

letter of notice, which advised Appellant of his right to retain new counsel or

to proceed pro se and raise additional issues to this Court. See id.; (see

also Petition to for Leave to Withdraw as Counsel, 1/28/16, Exhibit A, at 1).

Further, the application and brief cite “to anything that arguably might

support the appeal[.]”     Lilley, supra at 997 (citation omitted); (see also

Anders Brief, at 2-4).     As noted by our Supreme Court in Santiago, the

fact that some of counsel’s statements arguably support the frivolity of the

appeal does not violate the requirements of Anders. See Santiago, supra

at 360-61.    Accordingly, we conclude that counsel complied with Anders’

technical requirements. See Lilley, supra at 997.

      Having concluded that counsel’s petition and brief substantially comply

with the technical Anders requirements, we must “conduct [our] own review

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

whether the appeal is, in fact, wholly frivolous.”      Lilley, supra at 998

(citation omitted). We conclude that it is not.

      The Anders brief raises one question for our review:       “Whether the

imposition of consecutive sentences of [three] to [six] years; [two] to [four]

years; [two] to [four] years (aggregate [seven] to [fourteen] years [of

imprisonment]) on two charges of burglary and one charge of receiving

stolen   property   is   harsh   and   excessive[?]”   (Anders   Brief,   at   1)

(unnecessary capitalization omitted).      However, in his pro se reply to the


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Anders brief, Appellant argues that he intended to challenge the legality of

his sentence3 because the convictions of burglary and receiving stolen

property at docket number 3526-2014 should have merged for sentencing

purposes. (See Appellant’s Application for Relief, 2/16/16, at 1-2 ¶¶ 3-5).

We agree with Appellant.4

       It is well-settled that “questions of merger relate to the legality of

sentence.” Commonwealth v. Rodriguez, 673 A.2d 962, 967 (Pa. Super.

1996), appeal denied, 692 A.2d 565 (Pa. 1997) (citation omitted). “Issues

relating to the legality of sentence are questions of law, and thus, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted).      Finally, “in construing

statutes, [we must] . . . ascertain and effectuate the intent of the

[legislature], a task that is best accomplished by considering the plain

language of the [statutes] at issue.” Id.; see also 1 Pa.C.S.A. § 1903.

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3
 Although Appellant did not challenge the legality of his sentence in the trial
court, the issue cannot be waived. Commonwealth v. Dickson, 918 A.2d
95, 99 (Pa. 2007) (“[I]f the sentence clearly implicates the legality of
sentence, whether it was properly preserved below is of no moment, as a
challenge to the legality of sentence cannot be waived.”) (citation omitted).
4
   We note that “the Commonwealth concedes that the receiving stolen
property conviction should have merged into the burglary conviction at
information [number] . . . 3526-2015.” (Commonwealth’s Letter, 2/29/16,
at 1) (unnecessary capitalization omitted).




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       Section 3502 of the Crimes Code provides, in pertinent part, that: “A

person may not be sentenced both for burglary and for the offense which it

was his intent to commit after the burglarious entry . . . unless the

additional offense constitutes a felony of the first or second degree.”       18

Pa.C.S.A. § 3502(d); see also Commonwealth v. Benedetto, 462 A.2d

830, 832 (Pa. Super. 1983) (holding that “receiving stolen property should

have merged with burglary for sentencing purposes.”) (citation omitted).

       Here, at docket number 3526-2014, the court sentenced Appellant on

both burglary, as a felony of the second degree, and receiving stolen

property, as a felony of the third degree. (See N.T. Sentencing, 6/09/15,

at 13; see also N.T. Guilty Plea, 4/07/15, at 3). Therefore, based on the

plain language of the Crimes Code, see Clarke, supra at 1284, we are

constrained to conclude that the trial court committed an error of law where

the two charges should have merged for sentencing purposes.              See 18

Pa.C.S.A. § 3502(d); Benedetto, supra at 832.

       Accordingly, we disagree with Appellant’s counsel that there is no non-

frivolous issue in Appellant’s case.           We vacate Appellant’s sentence for

burglary and receiving stolen property at case number 3526-2014 only, and

we remand for resentencing.5

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5
  Because of our disposition, and Appellant’s representation that it was never
his intent to challenge the discretionary nature of his sentence or the
sentence imposed at docket number 3522-2014, (see Appellant’s
(Footnote Continued Next Page)


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      Judgment of sentence vacated in part, affirmed in part, and remanded

for resentencing.         Counsel’s petition to withdraw denied.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




                       _______________________
(Footnote Continued)

Application for Relief, at 1 ¶¶ 3-5), we will not address the discretionary
aspects of sentence issue raised in the Anders brief.



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