Opinion
J-S59043-16 No. 2542 EDA 2015
09-12-2016
COMMONWEALTH OF PENNSYLVANIA v. SERGIO JACOBS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 16, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0203011-2005 BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Sergio Jacobs, appeals from the judgment of sentence following the revocation of his probation. Counsel has filed a petition to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We grant the petition to withdraw and affirm the judgment of sentence.
We adopt the facts and procedural history set forth in the trial court's opinion. See Trial Ct. Op., 12/1/15, at 1-2. On December 16, 2014, following a hearing, the court revoked Appellant's probation and sentenced him to an aggregate sentence of five to ten years' imprisonment. On December 24, 2014, Appellant filed a timely motion for reconsideration of his violation-of-probation sentence. The court, on December 30, 2014, vacated the sentence pending a hearing on Appellant's post-sentence motion.
The court held a hearing on July 16, 2015, and initially indicated the purpose of the hearing was to address Appellant's post-sentence motion. N.T., 7/16/15, at 2. Appellant's counsel, however, stated that the hearing was for a violation but later noted the court had vacated the prior aggregate sentence of five to ten years' imprisonment. Id. at 2-3. The court also acknowledged granting Appellant's counsel's December 24, 2014 post-sentence motion. Id. at 11. After arguments, the court again sentenced Appellant to an aggregate sentence of five to ten years' imprisonment. Id. at 14. The court, however, did not enter or docket a written sentencing order. Appellant did not file another post-sentence motion.
Appellant, while represented by counsel, filed a pro se, timely notice of appeal on August 11, 2016. On September 2, 2016, the trial court served Appellant's counsel an order directing counsel to comply with Pa.R.A.P. 1925(b). Counsel filed a motion to withdraw on September 9, 2015, which the court denied on October 5, 2015. The court, in its October 5, 2015 order, again instructed counsel to comply with Rule 1925(b). Appellant's counsel timely filed a Rule 1925(b) statement, which challenged the discretionary aspects of Appellant's sentence. Appellant's counsel filed a petition to withdraw with this Court. Appellant did not file a pro se response or another counseled brief.
The pro se notice of appeal is valid although counsel was representing Appellant. Cf. Commonwealth v. Cooper , 27 A.3d 994, 1007 (Pa. 2011) (holding defendant's premature pro se notice of appeal valid despite being represented by counsel and given unique procedural posture of case).
See generally Commonwealth v. Wilson , 911 A.2d 942, 944 n.2 (Pa. Super. 2006) (discussing prisoner mailbox rule).
We first examine whether Counsel complied with the requirements of Anders and Santiago.
This Court must first pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under Anders , counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief 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. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: "(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant
deems worth of the court[']s attention in addition to the points raised by counsel in the Anders brief."Commonwealth v. Orellana , 86 A.3d 877, 879-80 (Pa. Super. 2014) (some citations omitted). If counsel complies with these requirements, "we will make a full examination of the proceedings in the lower court and render an independent judgment [as to] whether the appeal is in fact 'frivolous.'" Id. at 882 n.7 (citation omitted).
Instantly, counsel's petition avers he undertook "a conscientious examination of the record" and concludes the appeal is "wholly frivolous." Mot. Seeking Permission to Withdraw as Counsel, 2/19/16, at 2 (unpaginated). Counsel informed Appellant of his conclusion by letter dated February 18, 2016, which attached counsel's motion to withdraw. The letter informed Appellant of his right to retain new counsel or to proceed pro se and raise any additional arguments for this Court's consideration. Id. at Ex. 1. Counsel provided Appellant with a copy of the Anders brief, which includes a summary of the proceedings and facts of the case, pertinent law, and a discussion explaining why Appellant's issues lack merit. Counsel concluded that he could not discern any non-frivolous issues. Id. We hold Counsel has complied with the mandates of Santiago , and we proceed to our independent analysis. See Orellana , 86 A.3d at 879-80.
The Anders brief raises the following issue:
Whether there are any issues of arguable merit that could be raised on direct appeal presently before this Court and whether the appeal is wholly frivolous?Anders Brief at 3. The brief also addresses whether Appellant's sentence was excessive and concludes Appellant waived the issue by failing to file a second post-sentence motion and preserve the issue in the Rule 1925(b) statement. Id. at 10. Appellant has not raised any additional issues.
Appellant did not file an additional counseled or pro se brief.
As noted above, however, Appellant preserved the issue in the Rule 1925(b) statement.
This Court has stated that
[c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Prior to reaching the merits of a discretionary sentencing issue:
[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. Evans , 901 A.2d 528, 533-34 (Pa. Super. 2006) (some citations and punctuation omitted). We add that a vacated sentence is a legal nullity. Commonwealth v. Wilson , 934 A.2d 1191, 1196 (Pa. 2007).
Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing.
[T]he Rule 2119(f) statement must specify where the sentence falls in relation to the sentencing guidelines and what particular provision of the Code is violated (e.g., the sentence is outside the guidelines and the court did not offer any reasons either on the record or in writing, or double-counted factors already considered). Similarly, the Rule 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm . . . .Commonwealth v. Googins , 748 A.2d 721, 727 (Pa. Super. 2000) (en banc).
Instantly, the court, in response to Appellant's initial post-sentence motion for reconsideration, vacated Appellant's sentence, rendering it a legal nullity. See Wilson , 934 A.2d at 1196. At the second sentencing hearing, the court subsequently imposed the same sentence and Appellant timely appealed. See Evans , 901 A.2d at 533. Appellant, however, did not file a post-sentence motion or otherwise raise the issue at the second hearing. See id. Appellant, therefore, has waived the issue. See Evans , 901 A.2d at 533-34. Accordingly, we deny Appellant permission to appeal. Our independent review of the record reveals no other issue of arguable merit. See Santiago , 978 A.2d at 355 n.5. We conclude that the appeal is frivolous and grant counsel's petition for leave to withdraw.
Counsel also failed to include a Rule 2119(f) statement in the Anders brief but that alone does not preclude review. See Commonwealth v. Bynum-Hamilton , 135 A.3d 179, 184 (Pa. Super. 2016).
Counsel's petition for leave to withdraw granted. Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/12/2016
Image materials not available for display.