J-S04004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PATRICIA OSTERWEIL                         :
                                               :
                       Appellant               :   No. 1411 MDA 2018

       Appeal from the Judgment of Sentence Entered August 13, 2018
     In the Court of Common Pleas of Luzerne County Criminal Division at
                       No(s): CP-40-CR-0000222-2018


BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 11, 2019

       Patricia Osterweil (“Appellant”) appeals from the judgment of sentence

entered on August 13, 2018, following her open guilty plea to one count of

delivery of a controlled substance (heroin), one count of conspiracy to commit

delivery, and one count of possession with intent to deliver.1 Additionally,

Appellant’s counsel has filed a petition seeking to withdraw his representation

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a

withdrawal from representation on direct appeal. Appellant has not filed a

response to counsel’s petition.          After careful review, we grant counsel’s

petition to withdraw and affirm Appellant’s judgment of sentence.

____________________________________________


1  35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903(a), and 35 P.S. § 780-
113(a)(30), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      The prosecutor presented the following factual basis for Appellant’s

guilty plea:

            On or about November 20th of 2017, detectives with the
      Kingston Borough Police Department along with members of the
      Luzerne County Drug Task Force set up a controlled purchase of
      heroin with a confidential informant at 80 Green Street in
      Edwardsville Borough. On that date [Appellant] did knowingly
      deliver heroin to a confidential informant, which is a Schedule I
      controlled substance. Additionally, the Commonwealth alleges
      that [Appellant] conspired and agreed with Cordel Rowe that they
      or one or more of them would engage in conduct constituting said
      crime.

N.T. (Guilty Plea), 6/11/18, at 5. Following acceptance of Appellant’s guilty

plea, the trial court sentenced Appellant to incarceration for an aggregate term

of twenty-four to forty-eight months.    Appellant filed a timely appeal and,

along with the trial court, complied with Pa.R.A.P. 1925. On appeal, counsel

presents the following question on Appellant’s behalf: “Whether the trial court

abused its discretion in sentencing the Appellant.” Anders Brief at 1.

      Before we address the question raised on appeal, we must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc).        There are procedural and

briefing requirements imposed upon an attorney who seeks to withdraw on

appeal. The procedural mandates are that 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.

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Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted a conscientious review of the

record and concluded that the present appeal is wholly frivolous. Counsel sent

Appellant a copy of the Anders brief and the petition to withdraw, as well as

a letter, a copy of which is attached to the brief. In the letter, counsel advised

Appellant that she could represent herself or that she could retain private

counsel to represent her.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

      in 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 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; Cartrette, 83 A.3d at 1032.

      Counsel’s brief is sufficiently compliant with Santiago. It sets forth the

history of this case, outlines pertinent case authority, cites to the record, and

refers to issues of arguable merit. Anders Brief at 6-7. Further, the brief

sets forth counsel’s conclusion that the appeal is frivolous and the reasons for

counsel’s conclusion. Id. at 7-8.    Accordingly, we proceed to examine the

issue counsel identified in the Anders brief, and then we conduct “a full



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examination of all the proceedings, to decide whether the case is wholly

frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super.

2018) (en banc).

      The trial court held that Appellant waived this issue because her

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal

lacked sufficient specificity. Trial Court Opinion, 10/5/18, at unnumbered 2

(citing Commonwealth v. Eichinger, 108 A.3d 821, 850 (Pa. 2014)). We

affirm the trial court’s waiver ruling, but on a different basis.             See

Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010) (“It

is well-settled that this Court may affirm on any basis.”) (citation omitted).

      The issue presented challenges the discretionary aspects of Appellant’s

sentence. We note that “[t]he right to appellate review of the discretionary

aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d

127, 132 (Pa. Super. 2014).      Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a petition

for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.

Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      [a]n appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

            We 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


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      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 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)).

      Herein, two of the first three requirements of the four-part test are met:

Appellant brought a timely appeal and included in her appellate brief the

necessary separate concise statement of the reasons relied upon for allowance

of appeal pursuant to Pa.R.A.P. 2119(f).      Anders Brief at 3.      However,

Appellant did not preserve this issue at the sentencing proceeding or by filing

a post-sentence motion. Thus, it is waived. Moury, 992 A.2d at 170.

      Even if we were to determine that Appellant’s claim was not waived, we

would find no merit to the underlying allegation. When reviewing a challenge

to the discretionary aspects of sentencing, this Court will determine whether

the trial court has abused its discretion. Commonwealth v. Caldwell, 117

A.3d 763, 770 (Pa. Super. 2015).

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and 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.

Id. (quoting Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.

2014)).


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      Here, the trial court concluded that, even if Appellant’s sentencing claim

were considered, “it would be without merit” because she failed to raise a

substantial question “and no evidence exists of record to support such a

claim.” Trial Court Opinion, 10/5/18, at unnumbered 2, 3. The trial court

continued:

           Had [Appellant] raised a substantial question regarding the
      sentence imposed, her appeal must fail.

                                    * * *

            The standard range of the guidelines for the delivery,
      possession with intent [to deliver] and conspiracy is twenty-one
      to twenty-seven months. [Appellant’s] sentence of twenty-four to
      forty-eight months on each charge is within the standard range.
      These sentences were imposed to run concurrently. Application
      of the guidelines under the facts of this case was appropriate. An
      aggregate sentence of twenty-four to forty-eight months is neither
      unreasonable nor excessive. No abuse of discretion occurred. As
      a result, the judgment of sentence imposed by this [c]ourt on
      August 13, 2018 should be affirmed.

Id. at 4-5.

      Based on the foregoing, we would conclude that Appellant failed to

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. Caldwell,

117 A.3d at 770.

      Finally, we have independently reviewed the record in order to

determine if counsel’s assessment about the frivolous nature of the present

appeal is correct. Yorgey, 188 A.3d 1190, 1195. After review of the issues


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raised by counsel and our independent review of the record, we conclude that

an appeal in this matter is frivolous. Accordingly, we grant counsel’s petition

to withdraw and affirm the judgment of sentence.

      Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2019




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