J-S36005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JUAN CARLOS GONZALEZ

Appellant No. 2072 MDA 2015

Appeal from the Judgment of Sentence November 16, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0002032-2012

 CP-36-CR-0002033-2012

BEFORE: DUBOW, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.: FILED AUGUST 31, 2016

Appellant, Juan Carlos Gonzalez, appeals from the judgment of 

sentence of 17-34 years’ incarceration, imposed after he pled guilty to four 

counts of robbery.1 With this appeal, Appellant’s counsel has filed a petition 

to withdraw and an Anders2 brief, stating that the appeal is wholly frivolous. 

After careful review, we affirm and grant counsel’s petition to withdraw.

Appellant was charged with committing four felony robberies as 

follows: on December 8, 2011, by placing a box cutter to the victim’s throat 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3701(a)(1)(ii).

2 Anders v. California, 386 U.S. 738 (1967).
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(charged at Dkt. No. 2032 of 2012); and between January 4-5, 2012, by 

displaying a BB gun at a flower shop, a jewelry store, and a grocery store 

(charged under three counts at Dkt. No. 2033 of 2012). N.T., 10/10/12, at 

3-4. On October 10, 2012, Appellant appeared before the trial court and 

entered his guilty plea. The Commonwealth explained that at the time of 

the robberies, Appellant was on parole for burglary, and had a history 

involving aggravated assault. Id. at 8. Appellant responded that at 46

years of age, he had been a heroin addict “for about a decade,” expressed 

his remorse, and apologized for his crimes. Id. at 9-11.

In imposing Appellant’s aggregate sentence of 17–34 years’ 

incarceration, the trial court explained:

[Appellant] is 46 years of age which shows sufficient 

maturity to understand the significance of his acts. 

[Appellant] has a limited education; however, certainly 

there’s no indication here that he is incapable of 

understanding the rules of society and complying. He is 

able to read, write and understand the English language.

He has a somewhat limited work history; however, 

there [are] indications that he has held jobs previously so 

it’s certainly indicative of the fact that he is capable of 

following directions.

[Appellant] does have a significant prior criminal history 

from the standpoint of the crime of violence and the 

burglary in there, as referenced by the Assistance District 

Attorney.

I’ve reviewed the presentence report in detail. I’ve also 

considered the guidelines and penalties as authorized by 

the legislature.

Finally, I have considered the character and statement 

of [Appellant], as well as the arguments of counsel.
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[Appellant], I would agree with the assessment of [the 

Commonwealth], there comes a point where one’s 

behavior calls for the most serious remedies. You’ve had 

opportunities in the past to get your life in order, to deal 

with whatever problems are behind this behavior. For 

whatever reason, you’ve failed to take advantage of that 

and I think at this point the protection of society is what’s 

paramount in my mind in terms of this sentence.

N.T., 10/10/12, at 11-12.

Appellant filed a timely direct appeal, after which the Superior Court 

affirmed his judgment of sentence. Commonwealth v. Gonzalez (Pa. 

Super. Sept. 27, 2013) (unpublished memorandum). On July 17, 2014, 

Appellant filed a petition for relief pursuant to the Post Conviction Relief Act 

(PCRA), 3in which he referenced the U.S. Supreme Court’s decision in 

Alleyne v. United States, 133 S.Ct. 2151 (2013). The PCRA court 

appointed PCRA counsel on July 23, 2014. Counsel filed an amended PCRA 

petition on September 9, 2014, and asserted that Appellant was improperly 

sentenced to mandatory minimums in a manner that had been ruled 

unconstitutional pursuant to both Alleyne and Commonwealth v. 

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). The Commonwealth, in 

its June 18, 2015 response, stated it was “constrained to agree” that 

Appellant was entitled to be resentenced because his original sentence under 

Dkt. No. 2033 of 2012 included mandatory minimums pursuant to 42 

____________________________________________

3 42 Pa.C.S. §§ 9541-9546.
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Pa.C.S. § 9712 of the Judicial Code, relating to offenses committed with 

firearms.

The trial court convened a resentencing hearing on November 16, 

2015, and clarified that “the sentences that I previously imposed, now that 

there is no mandatory sentence involved, are actually within the mitigated 

range, if all we use are the guidelines.” N.T., 11/16/15, at 3. The court 

additionally stated that it had reviewed correspondence from Appellant, and 

“re-reviewed the victim impact statements.” Id. at 4. The court then heard 

from Appellant, and re-imposed an aggregate sentence of 17–34 years’ 

incarceration. The court explained that the sentence was 7–14 years at 

Docket No. 2032 of 2012 and, at Docket No. 2033 of 2012, the sentence 

was 5–10 years at “each of Counts 1 through 3,” with “Count 2 to be served 

consecutively to Count 1 [and] Count 3 to be served concurrently with the 

sentence imposed on Count 2.” Id. at 5-6. Appellant filed his timely appeal 

on November 19, 2015. 

In the Anders brief, counsel raises a single issue for our review:

DID THE LOWER COURT IMPOSE A SENTENCE THAT IS 

FREE OF LEGAL ERROR?

Anders Brief at 4.

“When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 

2010) (internal citation omitted). An Anders brief shall comply with the 
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requirements set forth by the Supreme Court of Pennsylvania in 

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

[W]e hold that in the Anders brief that accompanies 

court-appointed counsel’s petition to withdraw, counsel 

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.

Id. at 361.

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 

2005), and its progeny, counsel seeking to withdraw on direct appeal must 

meet the following obligations to his or her client.

Counsel must also 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 the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal 

quotation marks and citation omitted). “Once counsel has satisfied the 

above requirements, it is then this Court’s duty to conduct its own review of 

the trial court’s proceedings and render an independent judgment as to 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting 

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally, 
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“this Court must conduct an independent review of the record to discern if 

there are any additional, non-frivolous issues overlooked by counsel.” 

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) 

(footnotes and citations omitted).

In this appeal, we observe that counsel’s February 6, 2016 

correspondence to Appellant indicates that counsel provided a copy of the 

Anders brief to Appellant and advised Appellant of his right to either retain 

new counsel or proceed pro se on appeal, and to raise “any additional 

points.” 

Further, counsel’s Anders brief complies with prevailing law in that 

counsel has provided a procedural and factual summary of the case with 

references to the record. Counsel additionally advances relevant portions of 

the record that arguably support Appellant’s claims on appeal. Ultimately, 

counsel cites his reasons and conclusion that Appellant’s “claim is frivolous,” 

and that he “finds no non-frivolous issues to present.” Anders Brief at 9.4

We recognize, as did counsel, that “Pennsylvania law makes clear that 

by entering a guilty plea, the defendant waives his right to challenge on 

direct appeal all non[-]jurisdictional defects except the legality of the 

sentence and the validity of the plea.” Commonwealth v. Lincoln, 72 

A.3d 606, 609 (Pa. Super. 2013) (internal citation omitted), appeal denied, 

____________________________________________

4 The Commonwealth has declined to file a brief in this matter.
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87 A.3d 319 (Pa. 2014); see also Anders Brief at 6. Appellant has not 

challenged the validity of his guilty plea, and we agree with counsel that the 

oral colloquy conducted by the trial court at the time of Appellant’s plea was 

sufficient to assure that the plea was properly made.

Appellant generally asserts that his sentence is illegal. Anders Brief 

at 4, 5. “Issues relating to the legality of a sentence are questions of law[.] 

... Our standard of review over such questions is de novo and our scope of 

review is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. 

Super. 2014) (citations omitted).

Our review of the record confirms that Appellant entered a guilty plea 

to four counts of robbery, each with possession or use of a deadly weapon. 

At resentencing, the trial court imposed an aggregate sentence of 17-34 

years’ incarceration. Counsel correctly observed that Appellant’s sentence 

falls “within the maximum penalties permitted by law and . . . within the 

recommended guideline sentencing range for each respective charge.” 

Anders Brief at 6. As noted above, the trial court explained at resentencing 

that “the sentences I previously imposed, now that there is no mandatory 

sentence involved, are actually within the mitigated range if all we use are 

the guidelines.” N.T., 11/16/15, at 3. The court also stated that it had rereviewed information provided at Appellant’s original sentence. Id. at 4. 

It is well-settled that a sentence is illegal when it is not statutorily 

authorized or it exceeds the statutory maximum sentence. Commonwealth 

v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009). Such is not the case 
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before us. Appellant pleaded guilty to robbery under 18 Pa.C.S. § 

3701(a)(1)(ii), which applies to a person who commits a theft while 

“threaten[ing] another with or intentionally put[ting] him in fear of 

immediate serious bodily injury.” A robbery under that provision is a felony 

of the first degree, id. § 3701(b)(1), and the maximum sentence is 20 

years, id. § 1103(1). The trial court imposed a sentence — 7 to 14 years at 

Docket No. 2033 of 2012, and 5 to 10 years on each count at Docket No. 

2034 of 2012, with the third count to run concurrent to the second — that 

was below this statutory maximum. The trial court calculated the standard 

sentence ranges for the robbery convictions by applying deadly weapon 

sentencing enhancements, and at neither docket did the court impose a 

minimum sentence that was more than one-half of the maximum sentence. 

The sentence was therefore lawful under 42 Pa.C.S. § 9756(b)(1).

Based on the foregoing, we agree with counsel that the illegal 

sentence issue raised by Appellant lacks merit. In addition, we have 

reviewed the certified record consistent with Flowers and have discovered 

no additional arguably meritorious issues. Accordingly, we grant counsel’s 

petition to withdraw, and affirm the trial court’s judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2016