J-S36023-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

HAYLEY NICHOLE BUTLER

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1709 WDA 2019

Appeal from the Judgment of Sentence December 21, 2015

In the Court of Common Pleas of Cambria County

Criminal Division at No(s): CP-11-CR-0002382-2014

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.* MEMORANDUM BY KING, J.: FILED SEPTEMBER 18, 2020

Appellant, Hayley Nichole Butler, appeals nunc pro tunc from the

judgment of sentence entered in the Cambria County Court of Common Pleas,

following her open plea of nolo contendere to third-degree murder.1 We affirm

and grant counsel’s petition to withdraw.

A prior panel of this Court set forth the relevant facts of this case as

follows:

On October 5, 2015, [Appellant] entered a plea of nolo

contendere to one count of third-degree murder for the

death of her boyfriend’s nine-month-old child. The child

died from head trauma and other bodily injuries while under

[Appellant’s] sole and exclusive care. The plea agreement

did not contain a recommended or negotiated sentence. On

December 21, 2015, the trial court sentenced [Appellant] to

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2502(c).
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10 to 25 years’ incarceration.

[Appellant] filed timely post-trial motions to reconsider her

sentence and to withdraw her plea. On February 11, 2016,

the trial court denied both motions. [Appellant] filed a

timely notice of appeal.

Commonwealth v. Butler, No. 367 WDA 2016, unpublished memorandum

at 1-2 (Pa.Super. filed August 11, 2017). This Court affirmed the judgment

of sentence on August 11, 2017, and Appellant did not seek further review.

On July 30, 2018, Appellant timely filed a pro se petition pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The court

appointed counsel, who filed an amended PCRA petition on February 26, 2019.

The amended petition raised two claims, asserting ineffective assistance of

counsel in conjunction with the plea proceedings. The court conducted an

evidentiary hearing on March 13, 2019. At that time, Appellant testified that

she did not actually want to overturn her conviction. Rather, Appellant was

“just asking for a lesser sentence” in light of underlying mental health issues.

(N.T. Hearing, 3/13/19, at 4). Appellant further argued that prior counsel was

ineffective for failing to present evidence of Appellant’s mental health issues

at her sentencing hearing, because this information would have resulted in a

more favorable sentence. (See id. at 11). Consequently, Appellant asked

the court to review her mental health records, which she had yet to obtain, and “decide whether ... those documents would result in ... a new sentencing

[hearing] being granted.” (Id. at 12).

Following the hearing, the court continued the matter for sixty (60) days
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to provide Appellant with additional time to obtain the mental health records

and file a supplemental PCRA petition. Appellant, however, failed to comply

with the sixty-day deadline. On June 3, 2019, the court entered an opinion

and order “construing [Appellant’s claims] as a nunc pro tunc request for

Sentence Modification.” (Order, entered 6/3/19, at 1). Consequently, the

court denied Appellant’s sentencing claims without prejudice. On June 10,

2019, Appellant filed a motion to vacate the June 3, 2019 order, explaining

she was still attempting to obtain her mental health records. The court denied

Appellant’s motion to vacate on June 12, 2019. Again, the court explained

that “nothing herein shall prevent counsel from submitting a nunc pro tunc

request for Sentence Modification, should he obtain supportive medical

documentation.”2 (Order, entered 6/12/19, at 1).

On July 1, 2019, Appellant filed her motion to modify sentence nunc pro

tunc. Appellant asserted that she had finally obtained her mental health

records, which confirmed the diagnoses of “depressive disorder, posttraumatic stress disorder and nightmares.” (Motion, filed 7/1/19, at ¶5).

Appellant argued that the “information about [her] mental health conditions

was not considered at her sentencing,” and “her sentence would have been

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2 A PCRA court can reinstate a petitioner’s post-sentence rights nunc pro tunc

if the petitioner successfully pleads and proves she was deprived of the right

to file and litigate post-sentence motions as a result of ineffective assistance

of counsel. Commonwealth v. Liston, 602 Pa. 10, 19 n.9, 977 A.2d 1089,

1094 n.9 (2009).
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lower if the court had this information at her sentencing.” (Id. at ¶6, ¶7).

The court conducted a hearing on October 15, 2019. Appellant testified,

admitting that she was aware of her mental health issues at the time of

sentencing. Appellant did not bring up her issues because she was

embarrassed, and she did not want her mother to know about her mental

health. (See N.T. Hearing, 10/15/19, at 7). On October 16, 2019, the court

denied Appellant’s motion to modify sentence nunc pro tunc. On November 13, 2019, Appellant timely filed a notice of appeal. The

court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal on November 22, 2019. On December 11, 2019,

counsel timely filed a Rule 1925(c)(4) statement of intent to file an Anders3

brief. Counsel subsequently filed a petition to withdraw and an Anders brief

with this Court.

As a preliminary matter, counsel seeks to withdraw representation

pursuant to Anders and Commonwealth v. Santiago, 602 Pa. 159, 978

A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition the

Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; (2)

file a brief referring to anything in the record that might arguably support the

appeal; and (3) furnish a copy of the brief to the appellant and advise her of

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3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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her right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61. Substantial compliance with these requirements is

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to confirm

that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d

266 (Pa.Super. 2018) (en banc).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor [Commonwealth v. McClendon, 495

Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief

provide an argument of any sort, let alone the type of

argument that counsel develops in a merits brief. To repeat,

what the brief must provide under Anders are references

to anything in the record that might arguably support the

appeal.

* * *

Under Anders, the right to counsel is vindicated by

counsel’s examination and assessment of the record and

counsel’s references to anything in the record that arguably

supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n 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
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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 178-79, 978 A.2d at 361.

Instantly, appellate counsel has filed a petition to withdraw. The petition

states counsel performed a thorough review of the record and concluded the

appeal is wholly frivolous. Counsel supplied Appellant with a copy of the

Anders brief. Counsel also provided Appellant with a letter explaining her

right to retain new counsel to pursue the appeal or to proceed pro se to raise

any points Appellant deems worthy of this Court’s attention.

In the Anders brief, counsel provided a statement of facts and

procedural history of the case. Counsel’s argument refers to relevant law and

portions of the record that might arguably support Appellant’s sentencing

issue. Counsel further states the reasons for his conclusion that the appeal is

wholly frivolous. Therefore, counsel has substantially complied with the

technical requirements of Anders and Santiago. Appellant has not responded to the Anders brief pro se or with newly

retained private counsel. Counsel raises the following issue on Appellant’s

behalf:

The Sentencing Court abused its discretion in sentencing by

not lowering Appellant’s sentence pursuant to her “Motion

to Modify Sentence Nunc Pro Tunc.”
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(Anders Brief at 10).

On appeal, Appellant argues the sentencing court should have imposed

a lesser sentence in light of her mental health records. As presented,

Appellant’s challenge implicates the discretionary aspects of her sentence.4

See Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010) (reiterating

that claim that certain factors justified lesser sentence implicates discretionary

aspects of sentencing).

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

sentencing issue:

[W]e conduct 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, 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, 42

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4 “At the outset, we note that in terms of its effect upon a case, a plea of nolo

contendere is treated the same as a guilty plea.” Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa.Super. 2018) (internal quotation marks omitted).

“[W]hile a guilty plea which includes sentence negotiation ordinarily precludes

a defendant from contesting the validity of [a] sentence other than to argue

that the sentence is illegal or that the sentencing court did not have

jurisdiction, open plea agreements are an exception in which a defendant will

not be precluded from appealing the discretionary aspects of the sentence.”

Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005). “An

‘open’ plea agreement is one in which there is no negotiated sentence.” Id.

at 363 n.1. Here, Appellant’s plea was “open” as to sentencing, so she can

challenge the discretionary aspects of her sentence.
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Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by, inter alia, including in her

brief a separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617,

621-22 (2002); Pa.R.A.P. 2119(f). “The determination of what constitutes a

substantial question must be evaluated on a case-by-case basis.”

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003). A

substantial question exists “only when the appellant advances a colorable

argument that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.” Sierra, supra

at 913 (quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super.

1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).

As a general rule, “[a]n allegation that a sentencing court ‘failed to

consider’ or ‘did not adequately consider’ certain factors does not raise a

substantial question that the sentence was inappropriate.” Commonwealth

v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544

Pa. 653, 676 A.2d 1195 (1996) (quoting Commonwealth v. Urrutia, 653
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A.2d 706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873

(1995)). Moreover, where the sentencing court had the benefit of a pre- sentence investigation (“PSI”) report, the law presumes the court was aware

of and weighed relevant information regarding a defendant’s character along

with mitigating statutory factors. Tirado, supra at 366 n.6.

Instantly, Appellant’s post-sentence motion nunc pro tunc and Rule

2119(f) statement preserved her claim that the court did not consider her

history of mental illness. Nevertheless, Appellant’s claim does not raise a

substantial question. See Cruz-Centeno, supra. Moreover, the court had

the benefit of a PSI report. (See N.T. Sentencing, 12/21/15, at 3). Therefore,

we can presume the court considered the relevant information and mitigating

factors. For these reasons, we conclude Appellant is not entitled to relief on

her challenge to the discretionary aspects of sentencing. See Sierra, supra. Accordingly, we affirm the judgment of sentence and grant counsel’s petition

to withdraw. Judgment of sentence affirmed. Petition to withdraw is granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/18/2020
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