Commonwealth v. Anderson

1

COMMONWEALTH OF PENNSYLVANIA v. ISAIAH ANDERSON Appellant

No. 2842 EDA 2022

No. J-A21029-23

Superior Court of Pennsylvania

November 29, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered May 20, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007955-2019

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM

DUBOW J.

Appellant Isaiah Anderson, appeals from the December 16, 2022 Judgment of Sentence entered in the Philadelphia County Court of Common Pleas following his open guilty plea to Burglary Strangulation, and Unlawful Restraint.^[1] Appellant's counsel, James Lloyd, Esquire, has filed a Petition to Withdraw as Counsel and an Anders^[2] Brief, to which Appellant has filed a response. Upon review, we grant counsel's Petition to Withdraw and affirm Appellant's Judgment of Sentence.

A.

We glean the following facts from the Commonwealth's recitation during Appellant's plea hearing and the certified record:

[O]n September 22, 2019, the complainant, a Ms. Frannie Poland, was at her home on the 1100 block of Ruby Street in the city and county of Philadelphia. Around 9 p.m., she went to go upstairs to bed. At the top of the stairs, she saw [Appellant]. He was completely naked. He came down the steps. He pushed her down, lifted up her shirt, touched her breasts, and straddled her. He put his hand over her mouth. She was able to get him off of her. She screamed. And the neighbors called the police. There was no permission for [Appellant] to enter her home.

N.T. Guilty Plea H'rg, 12/17/21, at 9.

The Commonwealth arrested Appellant and charged him with, inter alia, Burglary, Strangulation, and Unlawful Restraint. On December 17, 2021, Appellant, represented by Jason Kadish, Esquire, entered an open guilty plea to one count each of the above offenses.^[3] During the plea hearing, the court reviewed Appellant's written plea colloquy and completed a verbal plea colloquy. On the written colloquy, the Commonwealth indicated that Appellant's prior record score ("PRS") was 3 and that the offense gravity scores ("OGS") for Burglary and Strangulation were both 9, for a standard guideline range sentence of 30 to 42 months, plus or minus 12 months, on each charge. The court did not discuss the sentencing guidelines during the verbal colloquy but informed Appellant that the maximum possible sentence was 35 years of incarceration. The court ordered presentence and mental health reports, and deferred sentencing.

On May 20, 2022, the trial court held a sentencing hearing. At the hearing, the Commonwealth clarified that the proper OGS for Burglary was 10,^[4] resulting in a guideline range of 42 to 54 months, plus or minus 12 months. The court sentenced Appellant to an aggregate term of 7 to 20 years of incarceration, followed by 10 years of probation.^[5]

On May 31, 2022, Appellant filed a post-sentence motion seeking reconsideration of his sentence. He did not challenge his guilty plea. On October 28, 2022, the court denied the motion, permitted Attorney Kadish to withdraw, and appointed James Lloyd, Esquire as appellate counsel.

This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

B.

On May 19, 2023, Attorney Lloyd filed an Anders Brief. On June 16, 2023, Appellant filed a response to the Anders Brief.

In the Anders Brief, counsel indicated that Appellant wished to raise the following issues on appeal:

1. Was the sentence imposed upon [Appellant] by the lower court manifestly excessive?

2. Is the guilty plea in this matter valid - that is, should [Appellant] be permitted to withdraw his guilty plea?

3. Did plea counsel provide ineffective assistance to [Appellant] causing him to enter a guilty plea that was not knowing, intelligent and voluntary?

Anders Brief at 5.

In Appellant's response to the Anders Brief, he purports to challenge the sufficiency of the evidence supporting his Strangulation conviction. Appellant's Pro Se Response, 6/16/23, at 1.

C.

When counsel files an Anders Brief, and the appellant files a pro se or counseled response, this Court will first determine whether counsel has complied with the dictates of Anders and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). See Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa. Super. 2015) (outlining the proper procedure where counsel files an Anders Brief and the appellant files a response). If counsel has complied with Anders and Santiago, we address the issues raised in the Anders Brief. Bennett, 124 A.3d at 333.

If we determine that those issues are without merit, we examine the allegations Appellant raised in his pro se reply. Id. We treat this filing as an advocate's brief and review it "as we do any advocate's brief." Id. We are mindful that this Court is limited to examining only those issues raised and developed in the pro se reply. Id. "We do not act as, and are forbidden from acting as, appellant's counsel." Id.

In interpreting Anders, our Supreme Court in Santiago held that counsel seeking to withdraw from representing an appellant must file a brief that: "(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." Santiago, 978 A.2d at 361. In particular, "[c]ounsel 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.

Counsel's brief meets the Anders requirements. Additionally, in his Application to Withdraw, counsel confirms that, on May 19, 2023, he sent Appellant a copy of the Anders Brief as well as a letter explaining to Appellant that he has the right to retain new counsel, proceed pro se, or to raise any additional points. Application to Withdraw as Counsel, 5/19/23, at ¶ 8; App'x A. See Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (describing notice requirements).

Having confirmed counsel's compliance with the above requirements, we turn to the issues counsel raised in his Anders Brief. We will then address Appellant's response to counsel's Anders Brief.

Issues Raised in Counsel's Anders Brief

In the Anders brief, counsel indicates Appellant seeks to challenge his sentence as excessive, thus implicating the discretionary aspects of his sentence. Anders Br. at 19. A challenge to the discretionary aspects of a sentence is not reviewable as a matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a post-sentence motion; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence; and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.; Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

Appellant timely appealed and preserved his claim in a Post-Sentence Motion. Further, Counsel included a Rule 2119(f) Statement in the Anders Brief.^[6] We will proceed, therefore, to consider whether Appellant's claim presents a substantial question.

We determine whether a substantial question has been raised on a case-by-case basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). "A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms [that] underlie the sentencing process." Id. (citation and quotation marks omitted).

Here, Appellant asserts that the trial court imposed an excessive sentence because the court either "purported to sentence within the sentencing guidelines but applied the guidelines erroneously; sentenced within the [] guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or sentenced outside the [] guidelines and the sentence is unreasonable." Anders Br. at 31-32.

Generally, "[a] claim that the sentencing court imposed an unreasonable sentence by sentencing outside the guideline ranges presents a 'substantial question' for our review." Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001) (citations omitted); see 42 Pa.C.S. § 9781(c)(3) (providing that we shall vacate an unreasonable sentence falling outside the guidelines). Since Appellant asserted that the sentence imposed was "outside the guidelines" and "unreasonable," we conclude he has raised a substantial question. We thus proceed to address the merits of his sentencing challenge.

An appellate court will not disturb the sentencing court's judgment absent a manifest abuse of discretion. To constitute an abuse of discretion, "a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion." Commonwealth v Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008) (citation omitted). To demonstrate that the sentencing court abused its discretion, "the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or...