J-S24012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYQUAN J. SMITH : : Appellant : No. 1437 MDA 2022 Appeal from the Judgment of Sentence Entered July 12, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002677-2020 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYQUAN JAMEL SMITH : : Appellant : No. 1438 MDA 2022 Appeal from the Judgment of Sentence Entered July 12, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000413-2021 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYQUAN J. SMITH : : Appellant : No. 1439 MDA 2022 Appeal from the Judgment of Sentence Entered July 12, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0004015-2021 J-S24012-23

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.* MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 07, 2023 Appellant, Tyquan J. Smith, appeals from the aggregate judgment of sentence of 36 to 84 months’ incarceration, and a concurrent term of 6 months’ probation, imposed after he pled guilty, in three separate cases, to aggravated assault (18 Pa.C.S. § 2702(a)(4)), carrying a firearm without a license (18 Pa.C.S. § 6106(a)(1)), unauthorized use of a motor vehicle (18 Pa.C.S. § 3928(a)), and driving without a license (75 Pa.C.S. § 1501(a)). On appeal, Appellant seeks to challenge the discretionary aspects of his sentence, arguing that the court abused its discretion by failing to consider mitigating factors in fashioning a sentence at the high end of the standard guideline range. Additionally, Appellant’s counsel, Matthew P. Kelly, Esq., seeks to withdraw his representation of Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of sentence and grant counsel’s petition to withdraw.

The facts of Appellant’s underlying convictions are not pertinent to our disposition of his present appeal. We need only note that Appellant pled guilty to the above-stated offenses and was sentenced on July 12, 2022, to the term set forth supra. He filed a timely, post-sentence motion, which the court

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* Former Justice specially assigned to the Superior Court.

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denied. Appellant then filed timely, pro se notices of appeal.1 After conducting a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988), the court appointed Attorney Kelly to represent Appellant herein. Attorney Kelly subsequently filed a Pa.R.A.P. 1925(b) statement on Appellant’s behalf, preserving the following, single issue for our review: “Whether the trial court abused its discretion in failing to consider that [Appellant pled] guilty to the above offenses and accepted responsibility for his actions. [Appellant] alleges that the trial court committed an abuse of discretion in sentencing him to the high end of the standard range of the sentencing guidelines.” Pa.R.A.P. 1925(b) Statement, 11/4/22, at 1 (single page). The trial court filed its Rule 1925(a) opinion on December 2, 2022. ____________________________________________

1 On October 11, 2022, Appellant filed three pro se notices of appeal, each listing all three trial court docket numbers. On October 14, 2022, this Court received from the trial court clerk of courts three notices of appeal docketed at Nos. 1437-39 MDA 2022. On November 18, 2022, this Court granted Appellant’s November 16, 2022 motion to consolidate the appeals. In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), the Pennsylvania Supreme Court held that appellants are required to file separate notices of appeal when a single order resolves issues arising on more than one lower court docket. The decision applies to all cases filed after June 1, 2018.

However, in Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019), this Court concluded that a breakdown in the courts occurs when a PCRA court advises petitioners that they can pursue appellate review by filing a single notice of appeal, even though the order disposes of petitions pending at multiple docket numbers. See also Commonwealth v. Larkin, 235 A.3d 350, 352-54 (Pa. Super. 2020) (en banc) (reaffirming Stansbury). Upon review of the record, the September 13, 2022 order denying Appellant’s post- sentence motions gave notice that “he has the right to appeal this Order by filing a Notice of Appeal[.]” Trial Court Order, 9/13/22 (emphasis added).

Accordingly, we find that there was a breakdown in the courts as per Stansbury and Larkin, and we allow this appeal to proceed.

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On April 12, 2023, Attorney Kelly filed with this Court a petition to withdraw from representing Appellant. That same day, counsel also filed an Anders brief, discussing the sentencing claims that Appellant preserved in his Rule 1925(b) statement. Attorney Kelly concludes that these challenges are frivolous, and that Appellant has no other, non-frivolous issues he could pursue herein. Accordingly, this Court must first pass upon counsel’s petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).

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 worthy of the court[’]s attention in addition to the points raised by counsel in the Anders brief.”

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, … 936 A.2d 40 ([Pa.] 2007).

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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After determining that counsel has satisfied these technical requirements of Anders and Santiago, this Court must then “conduct a simple review of the record to ascertain if there appear[s] on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

In this case, Attorney Kelly’s Anders brief complies with the above- stated requirements. Namely, he includes a summary of the relevant factual and procedural history, he refers to portions of the record that could arguably support Appellant’s claims, and he sets forth his conclusion that Appellant’s appeal is frivolous. He also explains his reasons for reaching that determination, and he supports his rationale with citations to the record and pertinent legal authority. Attorney Kelly also states in his petition to withdraw that he has supplied Appellant with a copy of his Anders brief. Additionally, counsel filed with this Court a separate copy of a letter directed to Appellant, in which he informed Appellant of the rights enumerated in Nischan.

Accordingly, counsel has complied with the technical requirements for withdrawal. We will now independently review the record to determine if Appellant’s sentencing challenges are frivolous, and to ascertain if there are any other, non-frivolous issues he could pursue on appeal.

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In reviewing Appellant’s sentencing arguments, we have considered Attorney Kelly’s Anders brief,2 the certified record, and the applicable law.

We have also assessed the opinion authored by the Honorable David W. Lupas of the Court of Common Pleas of Luzerne County. We conclude that Judge Lupas’ well-reasoned decision adequately addresses Appellant’s sentencing arguments, and demonstrates that Appellant’s raising these claims on appeal would be frivolous. See Trial Court Opinion, 12/2/22, at 2-5. Additionally, our review of the record reveals no other, non-frivolous claims that Appellant could pursue herein. Thus, we affirm his judgment of sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/07/2023

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2 The Commonwealth filed a letter notifying this Court that it would not be filing an appellee’s brief in this case.

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