J-S28023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN M. CARTER

                            Appellant                 No. 1436 WDA 2016


           Appeal from the Judgment of Sentence September 12, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002434-2015


BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 21, 2017

       Kevin M. Carter appeals from the September 12, 2016 judgment of

sentence entered in the Erie County Court of Common Pleas following his

guilty plea to one count of use/possession of drug paraphernalia.1 Carter’s

appellate counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and a petition for leave to withdraw as counsel. We affirm

and grant counsel’s petition to withdraw.

       On July 11, 2016, Carter pled guilty to the aforementioned charge. On

September 12, 2016, the trial court sentenced Carter to 6 to 12 months’

incarceration, consecutive to any sentence Carter was serving at the time.
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
           35 P.S. § 780-113(a)(32).
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On September 14, 2016, Carter filed a post-sentence motion, which the trial

court denied on September 23, 2016. That same day, Carter filed a timely

notice of appeal.2 On September 27, 2016, the trial court ordered Carter to

file a concise statement of matters complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b). On September 28, 2016,

counsel filed a Rule 1925(c)(4) statement of intent to file an Anders brief.

On September 30, 2016, the trial court entered an order stating that no

opinion was necessary in light of counsel’s statement of intent.

       Because Carter’s appellate counsel has filed a petition to withdraw

pursuant to Anders and its Pennsylvania counterpart, Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), we must address counsel’s petition

before reviewing the merits of Carter’s underlying claims. Commonwealth

v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007).              We first address

whether counsel’s petition to withdraw satisfies the procedural requirements

of Anders. To be permitted to withdraw, counsel 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.
____________________________________________


       2
         Carter’s notice of appeal states that, at the time of filing, the trial
court had not docketed its sentencing order. Our review of the record
reveals that although the order itself is not time-stamped, the docket shows
a filing date of September 12, 2016.



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

banc).

      Here, appellate counsel stated that after conscientious examination of

the record, she found the appeal to be wholly frivolous. Pet. for Leave to

Withdraw as Counsel, 2/7/17, at 1 (unpaginated). Counsel furnished a copy

of the Anders brief to Carter, and advised him that he had “the right to find

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

points that you deem worthy of the court’s attention.”          Ltr. to Carter,

2/7/17.    We conclude that counsel’s petition for leave to withdraw has

complied with the procedural dictates of Anders.

      We    next   address   whether    counsel’s   Anders   brief   meets   the

requirements established by the Pennsylvania 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 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.

Santiago, 978 A.2d at 361.

      The instant brief sets forth counsel’s conclusion that the appeal is

frivolous and counsel’s reasons for her conclusion. The brief also states that

counsel reviewed the record, and refers to Carter’s sentencing hearing,

including Carter’s statements at the hearing and the trial court’s on the

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record reasons for the sentence imposed. However, while the brief provides

a concise summary of the procedural history, it neither discusses the factual

history of this matter nor cites to the record. Because Carter pled guilty to

only one count of possession of drug paraphernalia3 and because the factual

history is not essential to our review, we conclude counsel substantially

complied with the dictates of Anders and Santiago.

       Carter has not filed a pro se brief or a counseled brief with new,

privately-retained counsel. We, therefore, review the sole issue raised in the

Anders brief: “Whether [Carter]’s sentence is manifestly excessive, clearly

unreasonable and inconsistent with the objectives of the Sentencing Code?”

Carter’s Br. at 3.

       “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,




____________________________________________


       3
           When a defendant pleads guilty, he:

            generally waives all defects and defenses except those
            concerning the validity of the plea, the jurisdiction of the
            trial court, and the legality of the sentence imposed.
            However, when the plea agreement is open, containing no
            bargain for a specific or stated term of sentence, the
            defendant will not be precluded from appealing the
            discretionary aspects of his sentence.

Commonwealth v. Guth, 735 A.2d 709, 710 n.3 (Pa.Super. 1999) (internal
citations omitted).




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1064 (Pa.Super. 2011). Before we address such a challenge, we must first

determine:
          (1) whether the appeal is timely; (2) whether [the
          a]ppellant preserved his issue; (3) whether [the
          a]ppellant’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 [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

      Carter filed a timely notice of appeal and preserved his issues in a

post-sentence motion. The Anders brief includes a concise statement of the

reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f).     We must now determine whether Carter’s

issue raises a substantial question for our review.

      Carter claims he has raised a substantial question because (1) the

court applied an incorrect prior record score, and (2) because the court

imposed    an   excessive   sentence   without   considering   the   appropriate

sentencing factors. We evaluate whether a particular sentencing issue raises

a substantial question on a case-by-case basis.          Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011).           A substantial question

exists where a defendant raises a “plausible argument that the sentence

violates a provision of the sentencing code or is contrary to the fundamental

norms of the sentencing process.”       Commonwealth v. Dodge, 77 A.3d


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1263, 1268 (Pa.Super. 2013) (quotation omitted).          A claim that the trial

court erroneously computed a defendant’s prior record score presents a

substantial question.   Commonwealth v. Johnson, 758 A.2d 1214, 1216

(Pa.Super. 2000).     Moreover, “[a]n averment that the trial court failed to

consider relevant sentencing criteria, including the protection of the public,

the gravity of the underlying offense and the rehabilitative needs of

[a]ppellant, as 42 P[a].C.S.[ ] § 9721(b) requires[,] presents a substantial

question for our review in typical cases.”     Commonwealth v. Derry, 150

A.3d 987, 992 (Pa.Super. 2016) (internal quotation omitted) (some

alterations in original).   We conclude that Carter has raised a substantial

question for our review.

      “Sentencing is a matter vested within the discretion of the trial court

and will not     be   disturbed absent    a manifest abuse       of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).

      Carter first challenges the trial court’s calculation of his prior record

score, contending that his prior record score should have been 3, rather than

5. Carter does not explain why his prior record score should have been 3.

Further, after reviewing the record, including the Guideline Sentence Form

and the prior offenses Carter listed in his post-sentence motion, we conclude

that the trial court calculated Carter’s prior record score correctly.

      Carter next contends that the trial court imposed an excessive

sentence without considering the section 9721(b) factors. The record shows


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that the trial court took into account Carter’s history of drug and alcohol

addiction, his criminal history, and his potential to be a danger to both

himself and others. Accordingly, we conclude the trial court considered the

protection of the public, the gravity of the offense, and Carter’s rehabilitative

needs, and did not abuse its discretion in sentencing Carter to 6 to 12

months’ incarceration.

      Judgment of sentence affirmed.        Petition for leave to withdraw as

counsel granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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