J-S20022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL WOLFORD,

                            Appellant               No. 1097 WDA 2015


            Appeal from the Judgment of Sentence of June 12, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002161-2014


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED MARCH 15, 2016

       Appellant, Michael Wolford, appeals from the judgment of sentence

entered on June 12, 2015, as made final by the denial of post-sentence

motions on July 6, 2015, following his guilty plea to third-degree murder,

robbery, conspiracy, and carrying a firearm without a license.1   In this direct

appeal, Appellant’s court-appointed counsel filed both a petition to withdraw

as counsel and an accompanying brief pursuant to Anders v. California,

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

2009). We conclude that Appellant’s counsel complied with the procedural

requirements necessary for withdrawal.         Moreover, after independently

reviewing the record, we conclude that the instant appeal is wholly frivolous.
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 3701(a)(1)(i), 903(c) and 6106(a)(1),
respectively.



*Retired Senior Judge assigned to the Superior Court.
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We therefore grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

       We summarize the factual and procedural history of this case as

follows. On January 8, 2014, police responded to a shooting in a parking lot

at the Waterfront, a business district in Homestead, Pennsylvania.               Upon

further investigation, police learned from witnesses that Appellant and two

co-defendants planned a drug deal and, during that transaction, Appellant

shot and killed the victim.             On June 12, 2015, Appellant and the

Commonwealth appeared before the trial court to propose a negotiated plea

agreement. Appellant agreed to plead guilty to third-degree murder, as well

as the additional aforementioned charges. The parties' plea agreement also

included    a   negotiated     aggregate       sentence   of   30   to   60   years   of

imprisonment.       The parties placed these terms on the record.              After a

colloquy with Appellant, the trial court accepted the negotiated plea and

sentence and entered judgment of sentence by order dated June 12, 2015.

This timely appeal resulted.2

       On appeal, Appellant’s counsel included one issue in his Anders brief:

____________________________________________


2
  Appellant filed post-sentence motions that the trial court denied on July 6,
2015. Appellant filed a timely notice of appeal on July 20, 2015. On July
21, 2015, the trial court ordered defense counsel to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant’s counsel complied on July 23, 2015 by filing a concise statement
alleging a frivolous appeal pursuant to Pa.R.A.P. 1925(c)(4). The trial court
issued an opinion conforming to Pa.R.A.P. 1925(a) on November 3, 2015.



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          Whether the trial court erred and/or abused its discretion by
          imposing a harsh sentence and not granting a motion to
          reconsider    sentence,     when     Appellant    and     the
          Commonwealth after a lengthy negotiation session asked
          the trial court to sentence Appellant to an aggregate
          sentence of thirty (30) to sixty (60) years of incarceration
          for third-degree murder and other non-homicide charges,
          when the facts of the case overwhelmingly support a
          conviction of second-degree murder which, alone, would
          have resulted in a life sentence without the possibility of
          parole and the trial court actually accepted the guilty plea
          and sentenced Appellant to the negotiated sentence?

Anders Brief at 6.

        Before reviewing the merits of this appeal, however, this Court must

first   determine      whether   counsel    fulfilled   the   necessary      procedural

requirements     for     withdrawing   as     counsel.        Commonwealth           v.

Washington, 63 A.3d 797, 800 (Pa. Super. 2013).                    To withdraw under

Anders,      court-appointed      counsel     must      satisfy    certain    technical

requirements. First, counsel must “petition the court for leave to withdraw

and state that after making a conscientious examination of the record, he

has determined that the appeal is frivolous.”                     Commonwealth v.

Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an

Anders brief, in which counsel:

          (1) provide[s] a summary of the procedural history and
          facts, with citations to the record;

          (2) refer[s] to anything in the record that counsel believes
          arguably supports the appeal;




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         (3) set[s] forth counsel’s conclusion that the appeal is
         frivolous; and

         (4)    state[s] 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.

Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.

       Finally, counsel must furnish a copy of the Anders brief to his client

and “advise[] him of his right to retain new counsel, proceed pro se or raise

any additional points that he deems worthy of the court’s attention, and

attach[] to the Anders petition a copy of the letter sent to the client.”

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation

omitted).

       If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5 (citation

omitted). It is only when both the procedural and substantive requirements

are satisfied that counsel will be permitted to withdraw. In the case at bar,

counsel has met all of the above procedural obligations.3 We now turn to

the issue raised in the Anders brief.

____________________________________________


3
    Appellant has not filed a response to counsel’s Anders brief.




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     The Anders brief contends that the trial court abused its discretion by

imposing a harsh and excessive sentence. This claim does not challenge the

trial court’s acceptance of Appellant’s guilty plea or the legality of his

sentence. Rather, Appellant’s claim challenges the discretionary aspects of

his sentence. See Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.

Super. 2015).

      “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion.” Commonwealth v. Clarke, 70 A.3d 1281,

1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an

automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).     Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

     As this Court has explained:

        To reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        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).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

     As previously noted, Appellant filed a timely notice of appeal and the

issue was properly preserved in a post-sentence motion. Counsel’s Anders


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brief also has a statement pursuant to Pa.R.A.P. 2119(f). Thus, we turn to

whether the appeal presents a substantial question.

      As we have explained:

        The determination of whether a particular case raises a
        substantial question is to be evaluated on a case-by-case
        basis. Generally, however, in order to establish that there
        is a substantial question, the appellant must show actions
        by the sentencing court inconsistent with the Sentencing
        Code or contrary to the fundamental norms underlying the
        sentencing process.

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted).

      This   Court    has   recently   reaffirmed   that    a   “challenge   to   the

discretionary aspects of [a] negotiated sentence [] is unreviewable.”

Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015), citing

Commonwealth v. O'Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008)

(“One who pleads guilty and receives a negotiated sentence may not then

seek discretionary review of that sentence.”). Indeed, we have found this

precise issue wholly frivolous in the Anders context. See O’Malley, supra.

Here, upon review of the record Appellant and the Commonwealth agreed

upon the terms of the plea deal, including the negotiated sentence, and the

trial court accepted the parties’ plea agreement.          Thus, Appellant fails to

raise a substantial question for our review.

      Moreover, after an independent review of the entire record, we see

nothing that might arguably support this appeal. The appeal is, therefore,



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wholly frivolous.    Accordingly, we affirm Appellant’s judgment of sentence

and grant counsel’s petition for leave to withdraw appearance.

      Petition for leave to withdraw as counsel granted.         Judgment of

sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




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