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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYQUAN J. SMITH

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

v.

TYQUAN JAMEL SMITH

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

v.

TYQUAN J. SMITH

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

- 2021J

- S24012

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- 2

-

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. § 3 928(a)) , and driving without a license ( 75 Pa.C.S. § 1501(a))

. On appeal, Appellant seeks to challenge the discretionary as pects 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

wit hdraw 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 fil ed a timely , post

- sentence motion, which the court

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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denied. Appellant then filed timely, pro se notice s 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 Ap pellant 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) S tatement, 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 fr om 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), th e 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. 2 019), 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 t he 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

s entence 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 th at there was a breakdown in the courts as per Stansbury and Larkin , and we allow this appeal to proceed.J

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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 claim s that Appellant preserved in his
Rule 1925(b) statement. Attorney Kelly concludes that th ese challenges are

frivolous , and that Appellant has no other, non

- frivolous issues he could
pursue herein. Accordingl y, 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 o n 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 anyth ing 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 fact s 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 Ander s brief.” Commonwealth v. Nischan , 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied , ... 936 A.2d 40 ( [Pa.] 2007).J

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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 arguab ly 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 i ncludes a summary of the relevant factual and procedural history, he refers to portions of the record that could arguably support Appellant’s claim s , and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for r eaching 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 suppl ied Appellant with a copy of his Anders brief. Additionally,

cou nsel 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.J

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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 cl aims 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 p etition to withdraw. Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/07 /2023

_________________ __________ ______ ____ _______

2 The Commonwealth filed a letter notifying this Court that it would not be filing an appellee’s brief in this case.Circulated 08/17/2023 01:32 PM