J-S28010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RANDY A. KIMBLE

                            Appellant                No. 963 WDA 2016


           Appeal from the Judgment of Sentence February 9, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0009706-2014
                           CP-02-CR-0010820-2014
                           CP-02-CR-0013586-2014



BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED MAY 23, 2017

       Appellant, Randy A. Kimble, appeals from the judgment of sentence

entered on February 9, 2015, following his guilty plea to one count each of

simple assault, terroristic threats, and resisting arrest.1    In this direct

appeal, Appellant’s court-appointed counsel filed both a petition to withdraw

as counsel and an accompanying brief pursuant to Anders v. California,

386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We conclude that Appellant’s counsel complied with the procedural

requirements necessary for withdrawal.         Moreover, after independently


____________________________________________


1
    18 Pa.C.S.A. §§ 2701(a)(1), 2706(a)(1), and 5104, respectively.



* Retired Senior Judge assigned to the Superior Court.
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reviewing the record, we conclude that the instant appeal is wholly frivolous.

We therefore grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

      The trial court set forth the facts and procedural history of this case as

follows:

           Appellant [] was charged by criminal information (CC
           201409706) with three counts of terroristic threats, one
           summary count of disorderly conduct, and one summary
           count of harassment.

           Appellant was charged by criminal information           (CC
           201410820) with one count of aggravated assault.

           Appellant was charged by criminal information (CC
           201413586) with one count of simple assault, one count of
           resisting arrest, and one summary count of public
           drunkenness.

           On February 9, 2015, Appellant entered a negotiated plea
           agreement. In exchange for Appellant's guilty plea, the
           Commonwealth withdrew: two counts of terroristic threats,
           disorderly conduct, and harassment at CC 201409706;
           amended aggravated assault to simple assault at CC
           201410820; and withdrew simple assault and public
           drunkenness at CC 201413586.

           That same day, Appellant was sentenced by the [t]rial
           [c]ourt as follows:

              CC 201410820 count one: simple assault — one year
              probation;

              CC 201409706 count one: terroristic threats — two
              years probation to be served consecutive to the
              period of probation imposed at CC 201410820;




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              CC 201413586 count two: resisting arrest — one
              year probation to be served consecutive to the
              period of probation imposed at CC 201409706.

              Thus, Appellant's aggregate sentence was four years
              [of] probation.

         On July 31, 2015, Appellant filed a pro se PCRA Petition.
         The [t]rial [c]ourt appointed counsel for Appellant, and
         granted Appellant's PCRA [p]etition to reinstate his
         appellate rights on May 6, 2016.

         On May 20, 2016, Appellant filed a post sentence motion to
         reconsider his sentence, which was denied by the [t]rial
         [c]ourt on June 1, 2016.

Trial Court Opinion, 11/1/2016, at 2-4 (footnotes omitted).           This timely

appeal resulted.2

       “When presented with an Anders brief, [we] 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), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). We must first determine whether counsel completed the

necessary      procedural      requirements      for   withdrawing   as   counsel.

Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013).
____________________________________________


2
   Appellant filed a notice of appeal on June 29, 2016. On July 14, 2016,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days of
receipt of requested trial transcripts. It is unclear from a review of the
record when Appellant received those transcripts. However, Appellant filed a
Rule 1925(b) concise statement on October 4, 2016, which the trial court
deemed timely. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on November 1, 2016.



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Court-appointed counsel must satisfy certain requirements to withdraw

under Anders.

         First, counsel must petition the court for leave to withdraw
         and state that after making a conscientious examination of
         the record, he has determined that the appeal is frivolous;
         second, he must file a brief referring to any issues in the
         record of arguable merit; and third, he must furnish a copy
         of the brief to the [appellant] and advise him of his right to
         retain new counsel or to himself raise any additional points
         he deems worthy of [our] attention.

Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012),

quoting Santiago, 978 A.2d at 361. In the submitted Anders brief, 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.

Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.

       If counsel meets these requirements, it is then our responsibility “to

make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is wholly frivolous.” Santiago, 978

A.2d at 355 n.5, citing Commonwealth v. McClendon, 434 A.2d 1185,

1187 (Pa. 1981).      Counsel will be permitted to withdraw if both the

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procedural and substantive requirements are satisfied.           In addition, we

“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)

(footnote and citation omitted). In the case at bar, we find counsel has met

all the above requirements. We now turn to an examination of the Anders

brief.

         On appeal, the Anders brief identifies one potential issue for our

review:

           1. Whether the trial court imposed an unduly harsh
              sentence in imposing consecutive sentences considering
              the nature of [A]ppellant’s mental health condition?

Anders Brief at 4.        Appellant suggests his aggregate sentence was harsh

and that the trial court abused its discretion by failing to consider his mental

health and by imposing consecutive sentences. Id. at 16-18.

         It is well settled that,

           with regard to the discretionary aspects of sentencing, there
           is no automatic right to appeal. Before [this Court may]
           reach the merits of [a challenge to the discretionary aspects
           of a sentence], we must engage in a four part analysis to
           determine: (1) whether the appeal is timely [filed]; (2)
           whether Appellant preserved his issue; (3) whether
           Appellant's brief includes a concise statement of the reasons
           relied upon for allowance of appeal with respect to the
           discretionary aspects of sentence; and (4) whether the
           concise statement raises a substantial question that the
           sentence is appropriate under the sentencing code.... [I]f
           the appeal satisfies each of these four requirements, we will
           then proceed to decide the substantive merits of the case.


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Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Here, Appellant filed a timely appeal and preserved his issue by filing a

post-sentence motion for reconsideration of his sentence.                  Counsel for

Appellant explained that he “ha[d] not fully complied with Pa.R.A.P. 2119(f)

by setting forth in a separate section of the [b]rief for Appellant a concise

statement of the reasons relied upon for allowance of appeal with respect to

the   discretionary   aspects   of   a   sentence[,]”       because   “[p]ursuant   to

Santiago, counsel has simultaneously addressed why a substantial question

pursuant to Rule 2119(f) cannot be established and why the merits of the

claim raised are frivolous.” Appellant’s Brief at 14. The Commonwealth has

not objected to Appellant’s failure to file a separate, concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of sentence.

      Appellant, however, fails to raise a substantial question for our review.

“A court's exercise of discretion in imposing a sentence concurrently or

consecutively    does    not    ordinarily     raise    a    substantial    question.”

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citation

omitted).   “Rather, the imposition of consecutive rather than concurrent

sentences will present a substantial question in only ‘the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.’” Id.


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(citation omitted).   In this case, Appellant received mitigated consecutive

sentences resulting in an aggregate sentence of four years of probation for

three crimes that occurred during three separate criminal episodes.        This

sentence does not present a substantial question that the aggregate

sentence was unduly harsh.       Further, regarding Appellant’s mental health

claim, “this Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.”    Id. at 339.    Regardless, the trial court heard

testimony from Maria Palmer, a supervisor with the community treatment

team at Mercy Behavioral Health. N.T., 2/9/2015, at 9. Initially diagnosed

with schizoaffective disorder, Appellant is currently receiving mental health

services from Mercy Behavioral Health including anger management, impulse

control, and medication monitoring. Id. at 10.      The trial court specifically

stated it imposed probation so that Appellant could participate in community

treatment programs. Id. at 14. Hence, we conclude that Appellant fails to

raise a substantial question regarding the trial court’s consideration of

Appellant’s mental health status in fashioning sentence, but that the trial

court, in fact, considered it.    For all of the foregoing reasons, we find

Appellant’s sentencing issues frivolous.

      Moreover, after an independent review of the entire record, we see

nothing that might arguably support this appeal. The appeal is, therefore,




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wholly frivolous.    Accordingly, we affirm Appellant’s judgment of sentence

and grant counsel’s petition for leave to withdraw appearance.

      Petition for leave to withdraw as counsel granted.         Judgment of

sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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