J-S10029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
RICHARD MOORE                          :
                                       :
                  Appellant            :   No. 2822 EDA 2017

            Appeal from the Judgment of Sentence July 20, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                      No(s): CP-23-CR-0002495-2016


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                          FILED MARCH 15, 2018

     Appellant, Richard Moore, appeals from the judgment of sentence

entered on July 20, 2017. On this direct appeal, Appellant’s court-appointed

counsel has filed both a petition for leave 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 has complied with the procedural requirements

necessary to affect withdrawal. Moreover, after independently reviewing the

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

therefore, grant counsel’s petition for leave to withdraw and affirm

Appellant’s judgment of sentence.

     In 2016, the Commonwealth charged Appellant with committing

multiple crimes, including rape, sexual assault, and indecent assault. See

Commonwealth’s Information, 5/25/16, at 1-2.       However, prior to trial,
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Appellant and the Commonwealth entered into an agreement whereby, if

Appellant pleaded guilty to sexual assault,1 the Commonwealth would

dismiss the remaining counts and recommend a sentence of 11 ½ to 23

months in prison, followed by five years of probation.         N.T. Guilty Plea

Hearing, 7/20/17, at 3-4.

        On July 20, 2017, Appellant tendered his guilty plea and the

Commonwealth recommended the agreed-upon sentence.               Id.   The trial

court accepted Appellant’s plea and sentenced Appellant in accordance with

the Commonwealth’s recommendation. Id. at 9. Appellant did not object to

his sentence at the hearing and Appellant did not file a post-sentence motion

with the trial court. Id. at 9-10.

        Appellant filed a timely notice of appeal. On appeal, Appellant’s court-

appointed counsel filed a petition for leave to withdraw and counsel

accompanied this petition with an Anders brief.       The Anders brief raises

one claim:

          Whether the sentence of 11 ½ to 23 [months’]
          imprisonment imposed on [Appellant] was harsh and
          excessive under the circumstances?

Appellant’s Brief at 2.

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

determine whether appointed counsel has fulfilled the necessary procedural


____________________________________________


1   18 Pa.C.S.A. § 3124.1.



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requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

      To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.    First, counsel must “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.”

Miller, 715 A.2d at 1207.      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; (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.

Santiago, 978 A.2d at 361.

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

client and advise the client “of [the client’s] right to retain new counsel,

proceed pro se or raise any additional points worthy of this Court’s

attention.”   Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.

2007).

      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



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

when all of the procedural and substantive requirements are satisfied that

counsel will be permitted to withdraw.

      In the case at bar, counsel complied with all of the above procedural

obligations.    We must, therefore, review the entire record and analyze

whether this appeal is, in fact, wholly frivolous.

      On appeal, Appellant claims that the trial court abused its discretion by

imposing a harsh and excessive sentence. Appellant’s Brief at 2. Appellant’s

claim on appeal is a challenge to the discretionary aspects of his sentence.

      “[S]entencing is a matter vested in the sound discretion of the

sentencing judge, whose judgment will not be disturbed absent an abuse of

discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.

2001). Moreover, pursuant to statute, 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 explained:

        [t]o 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).


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

      In the case at bar, Appellant did not object to his sentence at the

sentencing hearing and Appellant did not file a post-sentence motion.

Therefore, Appellant waived any challenge to the discretionary aspects of his

sentence.   Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) (“[i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal”).

Further, since the claim on appeal is waived, the claim is frivolous under

Anders.     Commonwealth v. Tukhi, 149 A.3d 881, 888-889 (Pa. Super.

2016) (holding that, under Anders, “[a]n issue that is waived is frivolous”);

Commonwealth v. Kalichak, 943 A.3d 285, 291 (Pa. Super. 2008)

(holding: “this issue has been waived. Having been waived, pursuing this

matter on direct appeal is frivolous”).

      We have independently considered the issue raised within Appellant’s

brief and we have determined that the claim is frivolous. In addition, after

an independent review of the entire record, we see nothing that might

arguably support this appeal.      The appeal is therefore wholly frivolous.

Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s

petition for leave to withdraw.

      Petition for leave to withdraw appearance granted.       Judgment of

sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/18




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