J-S05026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
VALLI J. BRANDT,                        :
                                        :
                       Appellant        :     No. 1048 WDA 2014


       Appeal from the Judgment of Sentence Entered May 28, 2014,
               In the Court of Common Pleas of Erie County,
            Criminal Division, at No. CP-25-CR-0002918-2013.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED FEBRUARY 18, 2015

     Appellant, Valli J. Brandt, appeals from the judgment of sentence

entered on May 28, 2014, in the Erie County Court of Common Pleas.

Appellate 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 filed a

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

petition to withdraw and affirm Appellant’s judgment of sentence.
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     On February 27, 2014, Appellant entered a guilty plea to one count of

neglect of a care-dependent person,1 graded as a felony of the first degree.

In consideration of her guilty plea, the Commonwealth agreed to enter a

nolle prosequi on one count of recklessly endangering another person. On

May 28, 2014, the trial court sentenced Appellant to a term of thirty-six to

seventy-two months of incarceration.

     On June 27, 2014, Appellant filed her notice of appeal, and on June

30, 2014, the trial court directed Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, on

July 17, 2014, having concluded that there were no meritorious issues that

could be raised on appeal, Appellant’s counsel filed a statement of intent to

file an Anders brief and withdraw as counsel pursuant to Pa.R.A.P.

1925(c)(4).   Counsel filed his Anders brief and petition to withdraw on

October 7, 2014.

     Before we address the issue Appellant’s counsel 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




1
  The care-dependent person in this case (“the Victim”) was Appellant’s
mother. Guilty Plea Hearing, 2/27/14, at 9. Due to the neglect, the Victim
developed stage four pressure ulcers on her body and required
hospitalization. Id. The Victim died prior to the plea hearing. Id. at 10.

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to withdraw on direct 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.

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 examination

of the record, including the plea colloquy and all other documents of record.

Following that review, counsel 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 advising Appellant that she could

represent herself or that she could retain private counsel to represent her. A

copy of that letter was attached to counsel’s petition to withdraw.

        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


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      on point that have led to the conclusion that the appeal is
      frivolous.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      We are satisfied that counsel has met the requirements set forth in

Santiago.   Counsel’s brief sets forth the factual and procedural history of

this case, cites to the record, and refers to an issue that counsel arguably

believes supports the appeal. Anders Brief at 5-6. Further, the brief sets

forth counsel’s conclusion that the appeal is frivolous, and it contains

pertinent case authority and counsel’s reasons for concluding that the appeal

is frivolous. Id. at 5-8. Accordingly, we address the following issue raised

in the Anders brief:

      Whether the Appellant’s sentence is manifestly excessive, clearly
      unreasonable and inconsistent with the objectives of the
      Pennsylvania Sentencing Code.

Anders Brief at 3.

      In the argument portion of the Anders brief, counsel asserts that the

trial court abused its discretion in sentencing Appellant to such a lengthy

term of incarceration without considering mitigating factors. Anders Brief at

6. Specifically, counsel claims that during Appellant’s sentencing hearing, it

was noted that Appellant’s actions were not “intentional” and, despite the

neglect, Appellant did, in fact, care for the Victim and take responsibility for

her actions. Id. Thus, counsel is purporting to present a challenge to the

discretionary aspects of Appellant’s sentence.


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     It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).      Rather, an appellant’s appeal should be

considered to be a petition for allowance of appeal.   Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).        Before this Court may

review the merits of a challenge to the discretionary aspects of a sentence,

we must engage in a four-pronged analysis:

     [W]e 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 or in a motion to reconsider and modify sentence,
     see Pa.R.Crim.P. [708]; (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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).

     A determination as to whether a “substantial question” exists is made

on a case-by-case basis, and this Court will grant the appeal “only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either:   (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.”   Commonwealth v. Sierra, 752 A.2d 910, 912-913

(Pa. Super. 2000).     “[T]his Court has held that an excessive sentence

claim—in conjunction with an assertion that the court failed to consider



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mitigating factors—raises a substantial question.”        Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation omitted). However,

while Appellant’s claim of sentencing error presents a substantial question,

and while she filed her appeal in a timely manner and included a statement

pursuant to Pa.R.A.P. 2119(f) in her brief, we are constrained to conclude

that this issue was not properly preserved for appellate review.

      It is well settled that “issues challenging the discretionary aspects of a

sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings. Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”

Cartrette, 83 A.3d at 1042 (citation omitted).       Here, Appellant failed to

challenge her sentence in a post-sentence motion or during the sentencing

hearing. Accordingly, this claim is waived.2

      Finally, as noted above, Appellant filed a response to counsel’s petition

to withdraw. In her response, Appellant asserted that she was not negligent

in her care of the Victim, and in fact provided adequate care. Response to

Anders Brief, 10/14/14, at 1-2. She averred that any negligence was due

2
  Had this issue been preserved, we would agree with counsel that the claim
is frivolous. The record reveals that the trial court aptly considered all
relevant factors, including a presentence investigation report, and imposed a
sentence at the lowest end of the standard range of the Sentencing
Guidelines. N.T., Sentencing, 5/28/14, at 8-9; and see 18 Pa.Code §
303.16 (setting forth the sentencing range for neglect of a care-dependent
person, graded as a felony of the first degree, when the defendant has a
prior record score of two and the offense gravity score is ten).


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to being overwhelmed with the duties of caring for the Victim.     Id. at 3.

However, Appellant provided no legal authority and advanced no discernable

argument in support of her position. Accordingly, Appellant has not set forth

any claim that we may address, much less any argument upon which we

could grant relief.

      Finally, we have independently reviewed the record in order to

determine whether there are any non-frivolous issues present in this case.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having

concluded that there are no meritorious issues, we grant Appellant’s counsel

permission to withdraw, and affirm the judgment of sentence.

      Petition of counsel to withdraw is granted.    Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2015




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