Com. v. Wright, C. (memorandum)

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J-S31041-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. CONAL IRVIN JAMES WRIGHT, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3428 EDA 2013 Appeal from the Judgment of Sentence entered on November 12, 2013 in the Court of Common Pleas of Montgomery County, Criminal Division, No. CP-46-CR-0002598-2013 BEFORE: BOWES, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JULY 18, 2014 appeals from the judgment of sentence imposed following his guilty plea to criminal attempt and invasion of privacy. See 18 Pa.C.S.A. §§ 901, 7507.1. Timothy Peter Wile, Esquire an accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744 On August 14, 2013, Wright tendered an open plea of guilty to one count each of criminal attempt and invasion of privacy. Wright admitted to planting a video recorder in a faculty restroom of Souderton Vantage Academy, a school that serves at-risk students. The trial judge deferred sentencing for ninety days and ordered a pre-sentence investigation (PSI) J-S31041-14 report, a psychological evaluation, a probation and parole intervention (PPI) evaluation, and a sexually violent predator (SVP) assessment. At the sentencing hearing on November 12, 2013, the judge stated that she had reviewed the PSI report and that Wright had undergone a psychological evaluation. However, the judge also stated that the PPI report had not yet been delivered to the court. Nevertheless, both the sentencing absent the PPI evaluation. The trial court sentenced Wright to an aggregate term of six to twelve months in prison. Wright filed a timely Notice of Appeal. Anders that raises when it imposed an aggregate sentence of six (6) to twelve (12) months of total confinement upon [Wright] with respect to his convictions for [] Anders Brief at 5 (capitalization omitted). Wile filed a separate Petition to Withdraw as counsel with this Court on March 26, 2014. Wright filed neither a pro se brief, nor retained alternate counsel for this appeal. Anders brief, this Court may not review the merits of the underlying issues without first passing on Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) (citation, brackets, and quotation marks omitted). -2- J-S31041-14 Pursuant to Anders, when counsel believes an appeal is frivolous and wishes to withdraw from representation, he must do the following: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points Commonwealth v. Curry, 931 A.2d 700, 701 (Pa. Super. 2007) (citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the second requirement of Anders, i.e., the contents of an Anders brief, and set forth the following requirements for Anders briefs: (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) and (4) g 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 e [Anders] -3- J-S31041-14 Edwards, 906 A.2d at 1228 (citation omitted). Here, we conclude that Wile has substantially complied with each of the requirements of Anders. See Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel needs to substantially comply with the requirements of Anders). Wile has provided this Court with the pertinent issues Wright seeks to raise, and stated that the appeal is Santiago. By letter dated March 25, 2014, Wile also advised Wright of his rights to proceed pro se or retain alternate counsel and file additional claims, Wile has complied with the procedural requirements for withdrawing from representation, and we will review the record to determine whether the appeal is frivolous. Initially, Wright contends that the trial court abused its discretion by imposing the sentence without considering the PSI report. Wright hallenges to the discretionary aspects of sentencing do not entitle an appellant to review as Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing issue, [this Court conducts] 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 -4- J-S31041-14 sentence, see Pa.R.Crim.P. [720]; (3) has a fatal defect, [see] 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, [see] 42 Pa.C.S.A. § 9781(b). Moury, 992 A.2d at 170 (citation omitted). Here, our review of the record discloses that Wright did not object at sentence motion.1 Accordingly, Wright has waived this claim. See Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (stating that in order to preserve a challenge to the discretionary aspects of sentencing for appellate review, the appellant must have raised the claim either during sentencing or in a timely post-sentencing motion); see also Commonwealth v. Barnhart, 933 A.2d 1061, 1066-67 (Pa. Super. 2007) (holding that the appellant had waived his challenge to the discretionary aspects of his sentence since he did not raise this claim at sentencing or in a post-sentence motion). Moreov would lack merit because the record indicates that the sentencing court considered the PSI report. See Trial Court Opinion, 11/12/13, at 4; N.T., 11/12/13, at 3-4; see also Commonwealth v. Ventura, 975 A.2d 1128, benefit of a presentence investigation report, it will be presumed that he or 1 Indeed, Wile concedes that Wright failed to preserve his challenge to his sentence for appellate review. See Anders Brief at 17. -5- J-S31041-14 character and weighed those considerations along with mitigating statutory circumstances of the crimes, the impact on the community, and the psychological evaluation performed on Wright.2 See Trial Court Opinion, 11/12/13, at 30, 33. connection with Souderton Vantage Academy is wholly frivolous. Indeed, Moreover, Wright does not point to any evidence to demonstrate that the judge acted with bias. wholly frivolous and that there are no non-frivolous issues to be considered. Petition to Withdraw as counsel under the precepts of Anders and its progeny. Judgment of sentence affirmed; Petition to Withdraw as counsel granted. 2 At sentencing, the parties agreed that Wright and treatment served the same purpose as a PPI evaluation. 11/12/13, at 3-4. -6- See N.T., J-S31041-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/18/2014 -7-

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