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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
ANTHONY CIANCI,                         :         No. 1132 EDA 2014
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, March 13, 2014,
             in the Court of Common Pleas of Delaware County
              Criminal Division at No. CP-23-CR-0003800-2008


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
ANTHONY CIANCI,                         :         No. 1172 EDA 2014
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, March 13, 2014,
             in the Court of Common Pleas of Delaware County
              Criminal Division at No. CP-23-CR-0005205-2010


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 29, 2015

      Appellant appeals the judgment of sentence imposed following a

finding that he was in violation of probation for two separate prior sentences

of probation. Finding no merit in the issue raised on appeal, we affirm.

      On August 18, 2008, at trial court docket number CP-23-CR-0003800-

2008, appellant pleaded guilty to criminal mischief and was sentenced to a


* Former Justice specially assigned to the Superior Court.
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term of probation.    On September 15, 2010, at trial court docket number

CP-23-CR-0005205-2010, appellant pleaded guilty to recklessly endangering

another person and resisting arrest and was sentenced to a term of

probation. On March 13, 2014, following a Gagnon II hearing,1 appellant

was found to be in violation of both sentences of probation by a February 5,

2014 conviction for aggravated assault. Immediately thereafter, the court

imposed an aggregate sentence of 18 to 36 months’ imprisonment.           This

timely appeal followed.

        On appeal, counsel for appellant, Patrick J. Conners, Esq., has filed a

petition to withdraw and accompanying Anders brief.2         Counsel raises a

single issue, questioning whether appellant’s sentence was excessive.       As

counsel has filed a petition to withdraw, we note that “[w]hen presented

with an Anders brief, this court 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) (citation

omitted).

             In order for counsel to withdraw from an appeal
             pursuant to Anders, certain requirements must be
             met, and counsel must:



1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).


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           (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.

Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

     Upon review, we find that Attorney Conners has complied with all of

the above requirements. In addition, Attorney Conners served appellant a

copy of the Anders brief, and advised him of his right to proceed pro se or

hire a private attorney to raise any additional points he deemed worthy of

this court’s review.   Appellant has not responded to counsel’s motion to

withdraw. As we find the requirements of Anders and Santiago are met,

we will proceed to the issue on appeal.

                 With respect to discretionary aspect of
           sentencing challenges, the Pennsylvania Rules of
           Appellate Procedure require that:

                 An    appellant   who    challenges   the
                 discretionary aspects of a sentence in a
                 criminal matter shall set forth in his
                 brief a concise statement of the reasons
                 relied upon for allowance of appeal with
                 respect to the discretionary aspects of a


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                    sentence.       The    statement    shall
                    immediately precede the argument on
                    the    merits   with   respect   to   the
                    discretionary aspects of sentence.

            Pa.R.A.P. 2119(f) (emphasis added). Appellant has
            failed to include the requisite Rule 2119(f)
            statement. A failure to include the Rule 2119(f)
            statement does not automatically waive an
            appellant’s argument; however, we are precluded
            from reaching the merits of the claim when the
            Commonwealth lodges an objection to the omission
            of the statement. Commonwealth v. Hudson, 820
            A.2d 720, 727 (Pa.Super. 2003).

Commonwealth v. Bruce, 916 A.2d 657, 666 (Pa.Super. 2007), appeal

denied, 932 A.2d 74 (Pa. 2007).

      Appellant’s brief on appeal does not include a Rule 2119(f) statement;

however, as the Commonwealth has failed to object, we do not find this

issue to be waived. Additionally, it does not appear that appellant filed any

post-sentence motion challenging his sentence.        However, as this is an

Anders matter, in the interest of judicial economy we will review the

sentencing claim.

      Appellant’s argument is as follows:

                  Counsel believes an issue of arguable merit
            exists as to whether that [sentence] is excessive
            under the circumstances.

                  But in light of [appellant’s] agreement to not
            only the violation but the recommendations of the
            parole/probation officer [as to the sentence], this
            issue is clearly frivolous.

Appellant’s brief at 4.



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     Appellant effectively “pleaded guilty” and accepted the 18 to 36-month

sentence recommended by the probation officer.         A challenge to the

discretionary aspects of sentence may be mounted following a guilty plea, so

long as the plea did not include a negotiated sentence. Commonwealth v.

Boyd, 835 A.2d 812, 816 (Pa.Super. 2003). Here, however, appellant did

not oppose the proposed sentence:

           [DEFENSE COUNSEL]: Your Honor, we would ask
           that – well, we don’t oppose the 18 to 36. We’d ask
           that it run concurrent, Your Honor. My client is
           currently – he has about five and a half years to do
           before his minimal time on the case he’s in now,
           Your Honor. And probably won’t get out any time
           around that time, probably after that. While he’s in
           prison, Your Honor, he is attempting to get his GED.
           He is on the list to try to get work there. He does
           have a four-year-old daughter, who lives with her
           mother right now. He is a resident – when he’s
           here, a resident of Upper Darby where his family is
           at right now. We’d ask the Court to consider that,
           Your Honor, in evaluating this.

           THE COURT: All right. Would your client like to be
           heard?

           [DEFENSE COUNSEL]: Would you like to be heard,
           Mr. Cianci?

           THE DEFENDANT: No, I believe you covered it.

Notes of testimony, 3/13/14 at 5-6.

     While appellant requested that the 18 to 36-month sentence be

imposed concurrently to his present sentence, his acceptance of the




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sentence clearly was not contingent upon concurrent sentencing.3 Thus, we

find that appellant effectively pleaded guilty and accepted the proposed

sentence of 18 to 36 months’ imprisonment. Under these circumstances, he

cannot now be heard to complain that the sentence is excessive. Upon our

independent review, we find that the issue raised on appeal is frivolous, and

that there are no other issues of arguable merit.

      Judgment of sentence affirmed. Counsel permitted to withdraw.

Judgment Entered.




Joseph                   D.                   Seletyn,                  Esq.
Prothonotary

Date: 5/29/2015




3
  The 18 to 36-month sentence was imposed consecutively to appellant’s
present sentence. (Notes of testimony, 3/13/14 at 7.)


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