Com. v. Brown, M.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

MICHAEL BROWN, : No. 690 EDA 2017

:

Appellant :

Appeal from the Judgment of Sentence, January 20, 2017,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0004152-2016

BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 20, 2017

Michael Brown appeals from the January 20, 2017 judgment of

sentence entered in the Court of Common Pleas of Delaware County after his

conviction in a waiver trial of transfer of firearms -- materially false written

statement and unsworn falsification to authorities.1 The trial court imposed

a sentence of 13 to 26 months of imprisonment followed by 2 years of

state-supervised probation. Assistant Public Defender Patrick J. Connors has

filed a petition to withdraw, alleging that the appeal is frivolous,

accompanied by an Anders2 brief. After careful review, we grant counsel’s

petition to withdraw and affirm the judgment of sentence.

1 18 Pa.C.S.A. §§ 6111(g)(4)(ii) and 4904(a)(1), respectively.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

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

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The trial court set forth the following relevant findings of fact:

[O]n May 6, 2004, [appellant] was convicted in

Philadelphia of Possession with Intent to Deliver, an

ungraded felony, and Carrying a Firearm in a Public

Street. Possession with Intent to Deliver is

punishable by more than one year in prison.

On February 2, 2015, [appellant] attempted to

purchase a firearm, via the internet, from Double

Action located on Industrial Drive in the Borough of

Yeadon, Delaware County, Pennsylvania 19050.

In order to purchase the firearm, [appellant]

completed Pennsylvania State Police form SP-4-113,

Application/Record of Sale.

As to question[s] 31 and 32, pertaining to prior

convictions, [appellant] checked “No.”

Both questions direct the applicant to “read

information on back prior to answering.”

[Appellant] also completed the federal ATF form

4473: Firearms Transaction Record -- Part I.

Questions 11b and 11c of this form pertain to felony

convictions which could result in imprisonment for

more than one year. It also states “see instructions

for question 11b and 11c.”

[Appellant] checked “No” to questions 11b and 11c.

After the required criminal background check, as

[appellant] was convicted of one of the enumerated

offenses that prohibit ownership of a firearm, his

application and attempt to purchase were denied.

[Appellant] then filed a Pennsylvania Instant Check

Challenge where he indicated that he has never been

arrested in Pennsylvania or convicted.

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[Appellant], after being advised of his constitutional

rights, knowingly, intelligently and voluntarily elected

to testify.

[Appellant] testified that he pled guilty to the above

charges; that his lawyer never told him what the

possible penalties could be or what the guidelines

were; and did not remember his lawyer telling him

he would be a felon.

With regard to the instructions on both forms,

[appellant] testified as follows: (1) he understood

what the question said without reading the

instructions; (2) he does not recall whether he read

the instructions; or (3) he believes he did read the

instructions.

With regard to the challenge he filed, [appellant]

contends that Philadelphia and Pennsylvania are two

different places, which is why he answered “No” as

to being arrested in Pennsylvania.

Trial court opinion, 3/20/16 1-2, ¶¶ 7-20 (paragraph numbering and exhibit

references omitted).

The record reflects that appellant filed a timely notice of appeal. The

trial court then ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). In lieu of filing a

Rule 1925(b) statement, Attorney Connors filed a statement of intent to file

an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

Appellant raises the following issue for our review: “Whether the

sentence of 13 to 26 months [of] incarceration imposed on [appellant] is

harsh and excessive under the circumstances?” (Appellant’s brief at 1

(italics omitted).)

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As Attorney Connors has filed an Anders brief and a petition to

withdraw as counsel alleging that the appeal is frivolous in accordance with

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), we begin as follows:

A request by appointed counsel to withdraw pursuant

to Anders and Santiago gives rise to certain

requirements and obligations, for both appointed

counsel and this Court. Commonwealth v.

Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.

2015).

These requirements and the significant

protection they provide to an Anders

appellant arise because a criminal

defendant has a constitutional right to a

direct appeal and to counsel on that

appeal. Commonwealth v. Woods,

939 A.2d 896, 898 (Pa.Super. 2007).

This Court has summarized these

requirements as follows:

Direct appeal counsel seeking

to withdraw under Anders

must file a petition averring

that, after a conscientious

examination of the record,

counsel finds the appeal to be

wholly frivolous. Counsel

must also file an Anders brief

setting forth issues that might

arguably support the appeal

along with any other issues

necessary for the effective

appellate presentation

thereof.

Anders counsel must also

provide a copy of the Anders

petition and brief to the

appellant, advising the

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appellant of the right to retain

new counsel, proceed pro se

or raise additional points

worthy of the Court’s

attention.

Woods, 939 A.2d at 898 (citations

omitted).

There are also requirements as to the

precise content of an Anders brief:

The Anders brief that

accompanies court-appointed

counsel’s petition to withdraw

. . . 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.

Santiago, 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed

counsel has met these obligations, it is then our

responsibility “to make a full examination of the

proceedings and make an independent judgment to

decide whether the appeal is in fact wholly frivolous.”

Id. at 1248. In so doing, we review not only the

issues identified by appointed counsel in the Anders

brief, but examine all of the proceedings to “make

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certain that appointed counsel has not overlooked

the existence of potentially non-frivolous issues.”

Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Our review of Attorney Connors’ application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel provided a copy of the

brief to appellant and advised him of his right to retain new counsel, proceed

pro se, and/or raise any additional points that he deems worthy of this

court’s attention. In addition, Attorney Connors attached a copy of the

letter sent to appellant to his petition as required under Commonwealth v.

Millisock, 873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v.

Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are

quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”). As Attorney Connors

has complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.

Once counsel has satisfied his 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.

Therefore, we now turn to the merits of appellant’s appeal.

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Appellant raises a challenge to the discretionary aspects of his

sentence.

Challenges to the discretionary aspects of sentencing

do not entitle an appellant to review as of right.

Commonwealth v. Sierra, [752 A.2d 910, 912

(Pa.Super. 2000)]. An appellant challenging the

discretionary aspects of his sentence must invoke

this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to

determine: (1) whether appellant has

filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the

issue was properly preserved at

sentencing or in a motion to reconsider

and modify sentence, see 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. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation

omitted; brackets in original).

Here, appellant filed a timely notice of appeal, and appellant’s brief

contains a Pa.R.A.P. 2119(f) statement. The record, however, reflects that

appellant did not properly preserve his discretionary sentencing challenge for

appeal because he did not file a motion to reconsider and modify sentence

and he did not raise the issue at his sentencing hearing. Nevertheless,

under our Anders review, we will consider the merits of the issue. See

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009), citing

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Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001)

(finding that Anders requires review of issues which otherwise would be

waived on appeal).

[T]he proper standard of review when considering

whether to affirm the sentencing court’s

determination is an abuse of discretion. . . . [A]n

abuse of discretion is more than a mere error of

judgment; thus, a sentencing court will not have

abused its discretion unless the record discloses that

the judgment exercised was manifestly

unreasonable, or the result of partiality, prejudice,

bias or ill-will. In more expansive terms, our Court

recently offered: An abuse of discretion may not be

found merely because an appellate court might have

reached a different conclusion, but requires a result

of manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so

as to be clearly erroneous.

The rationale behind such broad discretion and the

concomitantly deferential standard of appellate

review is that the sentencing court is in the best

position to determine the proper penalty for a

particular offense based upon an evaluation of the

individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted; brackets in original).

Here, appellant claims that the trial court imposed a harsh and

excessive sentence. The record reflects that appellant was convicted of

transfer of firearms, a third-degree felony punishable by up to 7 years of

imprisonment. See 18 Pa.C.S.A. § 1103(3). The trial court sentenced

appellant to 13 to 26 months of imprisonment on that count. The record

further reflects that appellant was also convicted of unsworn falsification to

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authorities, a second-degree misdemeanor, punishable by up to 2 years of

imprisonment. See 18 Pa.C.S.A. § 1104(3). The trial court sentenced

appellant to 2 years of probation on that count. Accordingly, although

appellant faced a maximum statutory period of incarceration of 9 years, the

trial court imposed a substantially lower term of imprisonment.

The record further reflects that the trial court explained the reasons for

the sentences that it imposed as follows:

I looked at the Pre-Sentence Investigation Report

[(“PSI”)], you don’t help yourself in the [PSI]. And I

have to consider that the nature of the crime, the

impact on society, the [PSI], and the guidelines.

Now the guidelines for a firearm when you do a

materially false written statement, in the standard

range are 15 to 21 months in a state correctional

institution. The mitigated range is six months and

the aggravated range is 30 months. For the

unsworn falsification, the standard is restorative

sanctions to three months in prison. Now based on

the information I have, and I know [the

Commonwealth] has asked for 20 months, I’m not

going to give 20 months. I’m going to sentence you

to 13 to 26 months in a state correctional institution.

. . . And you’re going to be followed on Count Two,

unsworn falsifications for two years [of] probation.

Notes of testimony, 1/20/17 at 8.

In addition to being well below the statutory maximum, the record

reflects that the term of incarceration imposed on appellant fell within the

guidelines and was consistent with the broad purposes of our penal system.

See Lilley, 978 A.2d 999, citing Commonwealth v. Williams, 652 A.2d

283, 285 n.1 (Pa. 1994) (noting “five broad purposes of the penal system:

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protection of society, general deterrence . . . , individual deterrence,

rehabilitation, and retribution”). Therefore, we find no abuse of discretion.

Finally, after a careful independent review of the record, we have not

disclosed any potentially non-frivolous issues. Accordingly, we grant

counsel’s petition to withdraw, and we affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/20/2017

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