J-S58024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EMMANUEL MILLER                            :
                                               :
                       Appellant               :   No. 410 WDA 2018

            Appeal from the Judgment of Sentence February 9, 2018
     In the Court of Common Pleas of Crawford County Criminal Division at
                       No(s): CP-20-CR-0000465-2017


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 16, 2018

        Emmanuel Miller (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to driving under the influence (DUI) and driving

without a license.1 Appellant’s counsel, Emily M. Merski, Esquire (Counsel),

seeks to withdraw from representation pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009). Upon review, we affirm Appellant’s judgment of sentence and grant

Counsel’s petition to withdraw.

        The trial court recounted the factual and procedural history of this case

as follows:

        [Appellant] entered a plea on [ ] November 6, 2017. The plea
        was to two counts[:] Count 4, [DUI], as a Tier III, first offense
        with a minor occupant in the vehicle and Count 5, Drivers Required
        to be Licensed. The violation section pled to by [Appellant] was
____________________________________________


1   75 Pa.C.S.A. §§ 3802(d)(3), 1501(a).
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      3802(d)(3) for a combination of Alcohol and Controlled Substance
      or a Combination of Controlled Substances. The offense was
      graded as a misdemeanor of the first degree because at the time
      of the incident [Appellant] was operating a motor vehicle with a
      minor present while under the influence pursuant to 75 Pa.C.S.A.
      [§] 3804(C.1)(1). [Appellant’s] plea involved a Commonwealth
      Sentencing recommendation of a low-end standard range.

      A Guideline Form was prepared in advance of sentencing and
      [Appellant] underwent a drug and alcohol assessment as required
      and also a CRN evaluation. The Drug and Alcohol Assessment
      recommended a level of care and [Appellant] was to commence
      treatment on [November 22, 2017,] and it was then adjusted on
      [November 22, 2017] to start outpatient treatment. The Mortimer
      Filkins score on [Appellant’s] CRN was a 56 and [Appellant’s]
      Offense Gravity Score for the applicable DUI was a five.
      [Appellant’s] Prior Record Score was also a five.

      His prior record stemmed from a number of significant criminal
      offenses including a juvenile robbery for which he was adjudicated
      delinquent, multiple misdemeanors in Erie County as well as
      Escape as a felony and most recently a Firearms Not to be Carried
      Without License charge as a felony. A review of [Appellant’s]
      Guideline Report indicated that he had served a significant
      sentence as a result of a conviction in 2002 and a 36-72 month
      SCI sentence in 2011.

      At the time of [Appellant’s] sentencing, there were issues that
      suggested ongoing mental health and drug and alcohol issues and
      other issues including indications of instability in the community.
      [Appellant] had just completed his state sentence at the time he
      committed the offense before the Court. He was also operating a
      motor vehicle at the time without a valid license.

      Applying the Offense Gravity Score and prior record score of five,
      the applicable standard range was a minimum in the range of 12-
      18 months.

Trial Court Opinion, 5/7/18, at 1-2.




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      The trial court sentenced Appellant to 12 to 36 months of incarceration.

Appellant filed a timely post-sentence motion which the trial court denied.

Thereafter, Appellant filed this timely appeal.

      On appeal, Counsel has filed a petition for leave to withdraw as counsel

in addition to an Anders brief. There are particular mandates that counsel

seeking to withdraw pursuant to Anders must follow. These mandates and

the significant protection they provide to an Anders appellant arise because

a criminal defendant has a constitutional right to a direct appeal and to counsel

on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.

2007). We have summarized these requirements as follows:

      Direct appeal counsel seeking to withdraw under Anders must file
      a petition averring that, after a conscientious examination of the
      record, counsel finds the appeal to be wholly frivolous. Counsel
      must also file an Anders brief setting forth issues that might
      arguably support the appeal along with any other issues necessary
      for the effective appellate presentation thereof.

      Anders counsel must also provide a copy of the Anders petition
      and brief to the appellant, advising the appellant of the right to
      retain new counsel, proceed pro se or raise any additional points
      worthy of this Court’s attention.

      If counsel does not fulfill the aforesaid technical requirements of
      Anders, this Court will deny the petition to withdraw and remand
      the case with appropriate instructions (e.g., directing counsel
      either to comply with Anders or file an advocate’s brief on
      Appellant’s behalf).

Id. (citations omitted).

      Additionally, there are requirements as to precisely what an Anders

brief must contain:


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      [T]he Anders brief that accompanies court-appointed counsel’s
      petition to withdraw … 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 349, 361 (Pa. 2009).         When faced with a purported

Anders brief, we may not review the merits of the underlying issues without

first deciding whether counsel has properly requested permission to withdraw.

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation

omitted).   If counsel has met these obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.

      Instantly, we conclude that Counsel has complied with the requirements

outlined above. Counsel has filed a petition with this Court stating that after

reviewing the record, she finds this appeal to be wholly frivolous. Petition for

Leave to Withdraw as Counsel, 7/24/18, at ¶ 3.            In conformance with

Santiago, Counsel’s brief includes summaries of the facts and procedural

history of the case, and discusses the issues she believes might arguably

support Appellant’s appeal. See Anders Brief at 4-9. Counsel’s brief sets

forth her conclusion that the appeal is frivolous and includes citation to

relevant authority.   See id. at 9-10.   Finally, Counsel has attached to her


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petition to withdraw the letter that she sent to Appellant, which enclosed

Counsel’s petition and Anders brief. Counsel’s letter advised Appellant of his

right to proceed pro se or with private counsel and to raise any additional

issues that he deems worthy of this Court’s consideration.

      Counsel’s Anders brief advances Appellant’s overarching argument

challenging the discretionary aspects of Appellant’s sentence. We recognize:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law, exercised
      its judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.”     Id.   We conduct this four-part test to determine

whether:

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      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
      raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth 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 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

      Here, Appellant has complied with the first three prongs of the

discretionary aspect test to invoke our jurisdiction by raising his issue in a

timely post-sentence motion, filing a timely notice of appeal, and including in

his appellate brief a Rule 2119(f) concise statement. In addition, by asserting

that his sentence beyond the standard range is unreasonable given the

mitigating circumstances, he has raised a substantial question. See, e.g.,

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en

banc) (stating that a substantial question is raised where an appellant alleges

that the sentencing court imposed a sentence in the aggravated range without

adequately considering mitigating circumstances).

      In his argument, Appellant recounts the procedural history of his case,

and cites case law for general propositions relating to the discretionary aspects



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of sentencing. See Anders Brief at 8-9. With regard to the specifics of his

claim, Appellant argues:

      Specifically, the Appellant argues that the court failed to consider
      the mitigating factors of the Appellant’s case. The Appellant
      contends that the trial court did not take into consideration the
      fact that he has significant mental health issues that he was
      currently treating in Crawford County with both therapy and
      medication management. The Appellant suffers from longtime
      various mental health diagnoses which significantly motivated the
      actions taken by the Appellant for the current conviction and those
      in the past. The Appellant respectfully argued to the trial court
      that his ability to continue with the services that he currently uses
      and trusts – and will utilize upon his parole – was only visible if
      the court imposed a county-length sentence.

      The Appellant argues that given the mitigating factors of his case
      his sentence is excessive.

Id.

      The Commonwealth, in response, states that the trial court considered

“all of the necessary factors” and acted within its discretion in imposing

Appellant’s sentence. Commonwealth Brief at 13.

      We review a challenge to a sentence that falls outside of the guidelines

mindful of the following:

      The sentencing guidelines are not mandatory, and sentencing
      courts retain “broad discretion in sentencing matters, and
      therefore, may sentence defendants outside the [g]uidelines.”
      [Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 620-
      21 (2002); see 42 Pa.C.S. §9721(b)] (citing Commonwealth v.
      Ellis, 700 A.2d 948, 958 (Pa.Super.1997)). “In every case where
      the court imposes a sentence ... outside the guidelines adopted
      by the Pennsylvania Commission on Sentencing ... the court shall
      provide a contemporaneous written statement of the reason or
      reasons for the deviation from the guidelines.” 42 Pa.C.S. §
      9721(b). However, “[t]his requirement is satisfied ‘when the judge
      states his reasons for the sentence on the record and in the

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      defendant’s presence.’” Commonwealth v. Widmer, 446 Pa.
      Super. 408, 667 A.2d 215, 223 (1995), reversed on other
      grounds, 547 Pa. 137, 689 A.2d 211 (1997). Consequently, all
      that a trial court must do to comply with the above procedural
      requirements is to state adequate reasons for the imposition of
      sentence on the record in open court. See Robinson, 931 A.2d
      at 26 (quoting Commonwealth v. Walls, 846 A.2d 152, 158
      (Pa.Super.2004), reversed on other grounds, 592 Pa. 557, 926
      A.2d 957 (2007)) (“If a court chooses to sentence a defendant
      outside of the sentencing guidelines, it should state on the record
      adequate reasons for the deviation.”).

      “When imposing sentence, a court is required to consider ‘the
      particular circumstances of the offense and the character of the
      defendant.’” Commonwealth v. McClendon, 403 Pa.Super. 467,
      589    A.2d 706, 712–13           (1991) (en banc) (quoting
      Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158,
      159 (1985)). “In considering these factors, the court should refer
      to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.” Id.

Commonwealth v. Antidormi, 84 A.3d 736, 760–61 (Pa. Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014).

      Consistent with the foregoing, and upon review of the record, we agree

with the Commonwealth that Appellant’s sentencing claim does not merit

relief. The crux of Appellant’s argument – that the trial court disregarded

mitigating factors – is not supported by the record.

      Contrary to Appellant’s argument, the record belies Appellant’s claim

that the trial court failed to consider mitigating factors when it imposed

Appellant’s sentence.   In addition to its commentary about other statutory

considerations, the court addressed Appellant:

      . . . I understand where you are. I really do. And I’m pausing
      because I’m really trying to think of other options. But everything
      goes back to the same answer for me, and that is that the

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     sentence that I’m going to impose here is the right one. I’ll
     explain it to you in a minute, okay? I don’t do it lightly. It’s not
     like I’m wishing to send you away for a long time. By definition,
     in the standard range, I’m at 12 months. That’s a long time.
     House arrest is always an option in certain cases, but it just
     doesn’t fit this case. I mean for a lot of reasons. And so then I’m
     looking at whether 12 months in a county facility makes sense
     where you’re not going to get any programming, you’re not going
     to get a halfway house upon release. You’re not going to get
     anything.

     And I really think that you have the wish to do better, right? And
     you have kind of the sense in your head of what you got to do to
     get there. You think you need to find a job. And I would tell you
     that while finding a job is a big deal to staying on the right path,
     finding an income stream, whether it’s a disability income stream
     or whatever is equally important. It’s hard to find work if you
     can’t get yourself cleaned up and show up for an interview on time
     and all those things. There is nothing wrong with getting some
     assistance when you need it to get yourself on stable footing, so
     then you can work from there. I agree with you. I don’t want you
     for 30 years to not be looking for work. But, you know, let’s get
     you squared and started, and I think part of that process will come
     from some programming that’s available upon release that the
     state has that we just don’t have in our county jail. It makes no
     sense to put you there.

     I also have a pretty firm starting point whenever I see someone
     that has a standard range state area and has been in state before
     that, generally speaking, the county does not serve any major
     deterrent type of effect from an incarceration standpoint. But,
     ultimately, what it comes down to is this: I think that the best
     chance for you to get stability and get on your feet right is to do
     the time and then come out with some programming that’s laid
     out well for you. And that’s not going to happen . . . with a local
     sentence.

N.T., 1/30/18, at 10-12.

     Based on the foregoing, we find no merit to Appellant’s claims that the

trial court abused its discretion by disregarding mitigating factors when it

imposed Appellant’s sentence.    See, e.g., Felmlee, supra (judgment of

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sentence in aggravated range affirmed where court noted mitigating factors

and “carefully reviewed all the facts and made an intelligent decision as to

sentencing”); cf. Commonwealth v. Hyland, 875 A.2d 1175 (Pa. Super.

2005) (judgment of sentence vacated where court “focused exclusively” on

aggravating factors and “virtually ignored” mitigating factors such as

appellant’s lack of prior criminal record, his age, his personal characteristics,

and his life situation).     Accordingly, we affirm the judgment of sentence.2

       Judgment of sentence affirmed. Petition to withdraw granted. Motion

denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2018




____________________________________________


2 On August 20, 2018, Appellant filed with this Court a pro se Application for
Immediate Release, seeking to have this Court order his immediate release
from incarceration. Appellant’s motion is denied.

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