J-S15037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JACQUAN CLIFTON CULBERT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1496 MDA 2022

Appeal from the Judgment of Sentence Entered September 13, 2022

In the Court of Common Pleas of Lackawanna County 

Criminal Division at No(s): CP-35-CR-0000336-2022

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 7, 2023

Jacquan Clifton Culbert (“Culbert”) appeals from the judgment of 

sentence imposed after he pleaded guilty to simple assault and false 

imprisonment.1 Additionally, Culbert’s counsel has filed a petition to withdraw 

and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 

(1967). We affirm and grant counsel’s petition to withdraw.

Culbert, after admitting that he punched his wife in her face and did not 

let her leave their bedroom, entered an open guilty plea to the above-stated 

offenses. See N.T., 6/27/22, at 3; see also Affidavit of Probable Cause, 

2/15/22, at 1. On September 13, 2022, the trial court held a sentencing 

hearing, at which the parties discussed a presentence investigation report and 

highlighted the information contained in the report, including Culbert’s mental 

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1 See 18 Pa.C.S.A. §§ 2701(a)(1), 2903(a).
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health issues. See N.T., 9/13/22, at 1-3. Culbert’s counsel at the time argued 

in favor of time-served sentences. See id. at 2-3.

2

 Culbert then apologized 

to the court and his wife, see id. at 4, after which the trial court announced 

its sentence of twelve to twenty-four months of imprisonment for simple 

assault and a consecutive six to twenty-four months of imprisonment for false 

imprisonment. See id. The trial court offered no further statements 

concerning sentencing. See id. 

Culbert timely filed a post-sentence motion for reconsideration of 

sentence and asserted, in relevant part:

. . . [Culbert] suffers from several severe mental health disorders, 

including bipolar disorder, schizophrenia and PTSD that affected 

his thought process and actions on the day of the incident.

. . . Due to the facts and circumstances surrounding the instant 

case, [Culbert] respectfully requests that th[e trial court] 

reconsider the sentence imposed and consider imposing a 

concurrent sentence[,] because both offenses . . . occurred 

essentially simultaneously to each other during the midst of a 

domestic dispute.

Post-Sentence Motion, 9/19/22, at 2.3 

The trial court denied Culbert’s post-sentence motion, and Culbert 

timely appealed. Culbert filed a court-ordered Pa.R.A.P. 1925(b) statement 

claiming that (1) the trial court failed to state the reasons for its sentences

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2 Different attorneys from the Public Defender’s Office represented Culbert

during his guilty plea and sentencing, and in the present appeal. 

3 Culbert’s post-sentence motion also asserted that (1) while he had a prior 

record score of four, his last conviction was in 2011; (2) he had been on parole 

for three years without a violation and was gainfully employed; and (3) he 

was facing a parole violation. See Post-Sentence Motion, 9/19/22, at 1. 
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and (2) the sentences were harsh and excessive given his mental health 

issues. See Rule 1925(b) Statement, 11/10/22, at 1. The trial court filed a 

Rule 1925(a) opinion concluding that Culbert waived his claim that it failed to 

state the reasons for its sentences and Culbert’s claim that the aggregate 

sentence was harsh and excessive does not raise a substantial question for 

review. See Trial Court Opinion, 1/10/23, at 7-8. Culbert’s present counsel 

has filed in this Court an Anders brief and a petition to withdraw from 

representation. 

Before considering the merits of the issues identified by Culbert’s 

counsel, we must first consider her request to withdraw. See 

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en 

banc). Counsel who wishes to withdraw on appeal must:

1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; 2) furnish a copy 

of the brief to the defendant; and 3) advise the defendant that he 

or she has the right to retain private counsel or raise additional 

arguments that the defendant deems worthy of the court’s 

attention.

Id. at 1032 (citation omitted).

In accordance with Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009), the brief accompanying counsel’s petition to withdraw must also

(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 
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case law, and/or statutes on point that have led to the conclusion 

that the appeal is frivolous.

Santiago, 978 A.2d at 361. Once counsel has complied with these procedural 

requirements, we will review the record and render an independent judgment 

as to whether the appeal is wholly frivolous. See Commonwealth v. 

Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

Here, Culbert’s counsel states that she has conscientiously examined 

the record and determined that this appeal is wholly frivolous. See Anders

Brief at 8. Her Anders brief provides a summary of the procedural history 

and facts of the case. See id. at 5. Counsel sets forth her conclusion that

this appeal is frivolous because Culbert has not preserved his intended issues 

for appellate review, and she provides citations to the case law and rules of 

procedure that led to her conclusion. See id. at 7-8. She has also attached 

to her petition to withdraw a letter advising Culbert of her intent to withdraw, 

stating that she enclosed a copy of her Anders brief and apprising Culbert of 

his right to proceed pro se or with private counsel. We conclude that Culbert’s 

counsel has substantially complied with the procedural requirements to 

withdraw.4 Accordingly, we will proceed to an independent review to 

determine if this appeal is frivolous. See Yorgey, 188 A.3d at 1197.

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4 We note, with disapproval, that Culbert’s counsel devotes much of her 

Anders brief to alternative arguments based on her belief that this Court 

should vacate Culbert’s sentences notwithstanding her conclusion that Culbert 

waived his intended claims for review. Such a mixed approach could confuse 

a defendant concerning the actual merits of his appeal and/or the need to 

respond immediately. However, because Culbert’s counsel has clearly advised

(Footnote Continued Next Page)
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Culbert’s counsel identifies the following issues for review:

A. Whether the trial court failed to state on the record the reasons 

for the sentences imposed as required by Pa.R.Crim.P.

[704(C)(2)].5

B. Whether the sentences imposed were harsh and excessive, and 

an abuse of discretion[,] given [Culbert]’s mental health

issues.

Anders Brief at 4.

6

Both issues discussed by Culbert’s counsel concern the discretionary 

aspects of sentencing. See Commonwealth v. Schmidt, 165 A.3d 1002, 

1007 (Pa. Super. 2017) (discussing a harsh-and-excessive claim); 

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003) (discussing 

a claim that the trial court failed to state the reasons for the sentence).

It is well-settled that “[c]hallenges to the discretionary aspects of 

sentencing do not entitle an appellant to review as of right.” Commonwealth 

v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits 

of a discretionary sentencing issue, 

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him of her intent to withdraw, identified waiver as the threshold issue, and 

informed him of his appellate rights, we will not require an amended brief. 

5 Throughout her Anders brief, Culbert’s counsel mistakenly cites Rule 708, 

which governs sentences imposed following the revocation of probation or 

parole. However, the Rule 704, which governs the procedure at the time of 

sentencing, has an identical requirement that the trial court state the reasons 

for the sentence imposed. Compare Pa.R.Crim.P. 704(C)(2) with

Pa.R.Crim.P. 708(D)(2). 

6 Culbert has not responded to his counsel’s petition to withdraw or the 

Anders brief. 
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[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 

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief 

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).

Id. (citation omitted). 

“Issues not raised in the trial court are waived and cannot be raised for 

the first time on appeal.” Pa.R.A.P. 302(a). The failure to preserve an 

objection to the discretionary aspects of sentencing during the sentencing 

proceeding or in a post-sentence motion results in the waiver of the objection, 

and a party cannot preserve a claim for appeal by raising it for the first time 

in a Rule 1925(b) statement. See Commonwealth v. Watson, 835 A.2d 

786, 791 (Pa. Super. 2003).

Our review of the record confirms that Culbert did not object at the 

sentencing hearing. See N.T., 9/13/22, at 4. Although he filed a postsentence motion, the motion did not preserve a claim that the trial court failed 

to state the reasons for its sentence. See Post-Sentence Motion, 9/19/22, at 

1-2. Moreover, Culbert did not assert that the sentences were harsh or 

excessive, nor did he even allege that the trial court had abused its discretion. 

See id. Culbert’s counsel, instead, raised claims that the trial court failed to 

state the reasons for the sentence and imposed harsh and excessive sentences 

for the first time in a Rule 1925(b) statement. Therefore, we agree with 

Culbert’s counsel that Culbert has waived his intended claims and this appeal 
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is frivolous. See Schmidt, 165 A.3d at 1007; Mann, 820 A.2d at 794; see

also Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) 

(noting that the pursuit of a waived claim on appeal is frivolous).

Thus, having conducted an independent review of the record, we agree 

with Culbert’s counsel that this appeal is frivolous because none of Culbert’s 

intended issues have been preserved for review. See Kalichak, 943 A.2d at 

291. Because our independent review of the record reveals no issues of 

arguable merit preserved for this appeal, we affirm the judgment of sentence 

and grant Culbert’s counsel petition to withdraw. 

Judgment of sentence affirmed. Petition to withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2023