J-S15034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOSEPH C. CORBETT, III

                            Appellant              No. 1155 MDA 2014


             Appeal from the Judgment of Sentence May 20, 2014
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0000892-2010
                                         CP-40-CR-0000893-2010
                                         CP-40-CR-0002655-2010



BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED MARCH 09, 2015

        Appellant Joseph C. Corbett, III (“Appellant”) appeals from the May

20, 2014 judgment of sentence in the Luzerne County Court of Common

Pleas following his guilty plea convictions for firearms not to be carried

without a license1 and possession of a controlled substance with intent to

deliver (“PWID”)2 on Docket No. CP-40-CR-0002655-2010, one count of

resisting arrest3 on Docket No. CP-40-CR-0000892-2010, and one count of

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1
    18 Pa.C.S. § 6106.
2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S. § 5104.
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resisting arrest on Docket No. CP-40-CR-0000893-2010. Appellant’s counsel

has filed an Anders4 brief, together with a petition to withdraw as counsel.

We affirm the judgment of sentence and grant counsel’s petition to

withdraw.

        Appellant’s convictions arise from three separate incidents: (1) on

March 5, 2010, Appellant resisted police after receiving notification that he

was under arrest on a South Carolina warrant; (2) on March 9, 2010,

Appellant fled police on foot during an automobile stop; and (3) on July 23,

2010, upon observing a firearm protruding from his pants, police detained

Appellant and discovered an unlicensed firearm and marijuana.      See N.T.

5/20/2014, pp. 8-9.

        Appellant pleaded guilty to the aforementioned charges stemming

from these incidents on May 20, 2014. The trial court sentenced Appellant

to 15 to 36 months’ incarceration on the firearms not to be carried without a

license conviction, 2 years’ consecutive probation on the PWID conviction,

and one year of probation for each of the resisting arrest convictions to be

served concurrently to the PWID probation.       On May 28, 2014, Appellant

filed a post-trial motion to modify sentence that the trial court denied on




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4
    Anders v. California, 386 U.S. 738 (1967).



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June 10, 2014. Appellant filed a notice of appeal on July 7, 2014. Appellant

complied with Pa.R.A.P. 1925,5 as did the trial court.6

        As previously noted, Appellant’s counsel has filed an application

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.7              Before

addressing the merits of Appellant’s underlying issue presented, we must

first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa.Super.2007) (en banc).

        Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established by our

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

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5
 Although styled as a Pa.R.A.P. 1925(b) statement of matters complained of
on appeal, Appellant’s filing indicated that counsel intended to file an
Anders brief in this matter.     It was therefore technically a Pa.R.A.P.
1925(c)(4) statement.
6
   In light of Appellant’s Pa.R.A.P. 1925(b) filing, the trial court’s 1925(a)
filing determined Appellant had failed to preserve any issues for review.
See Trial Court’s July 22, 2014 filing pursuant to Pa.R.A.P. 1925(a). The
trial court further explained that the sentencing hearing transcript contains
the court’s reasons for the sentence imposed. Id.
7
    978 A.2d 349 (Pa.2009).



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       case law, and/or statutes on point that have led to the
       conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. Counsel must also provide the appellant with a

copy of the Anders brief, together with a letter that advises the appellant of

his or her right to “(1) retain new counsel to pursue the appeal; (2) proceed

pro se on appeal; or (3) raise any points that the appellant deems worthy of

the court’s attention in addition to the points raised by counsel in the Anders

brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super.2007).

Substantial      compliance       with     these   requirements   is   sufficient.

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After

establishing that the antecedent requirements have been met, this Court

must then make an independent evaluation of the record to determine

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm,

903 A.2d 1244, 1246 (Pa.Super.2006).

       Instantly, counsel contemporaneously filed a petition to withdraw as

counsel with the Anders brief. The petition states counsel’s determination

that no non-frivolous issues exist to be raised on appeal.        See Petition to

Withdraw As Counsel, ¶ 3. The petition further explains that counsel notified

Appellant of the withdrawal request and sent Appellant a letter explaining his

right to proceed pro se or with new, privately-retained counsel to raise any

additional points or arguments that Appellant believed had merit. 8 See id.
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8
  The letter further makes clear that counsel supplied Appellant with a copy
of the Anders brief. See Letter to Appellant, December 3, 2014.



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at ¶ 4; see also Letter to Appellant, December 3, 2014.        In the Anders

brief, counsel provides a summary of the facts and procedural history of the

case with citations to the record, refers to evidence of record that might

arguably support the issue raised on appeal, provides citations to relevant

case law, and states his conclusion that the appeal is wholly frivolous and his

reasons therefor.     See Anders Brief, pp. 4-8.    Accordingly, counsel has

substantially complied with the requirements of Anders and Santiago.

      As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issue of

arguable merit raised in the Anders brief:

      1. Whether the Trial Court abused its discretion in sentencing
      Appellant[?]

Anders Brief, p. 7.

      This claim raises a challenge to the discretionary aspects of Appellant’s

sentence.   “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.”   Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011).      Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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. [720]; (3) whether
      appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)

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        whether there is a substantial question that the sentence
        appealed from is not appropriate under the Sentencing Code.

Allen, 24 A.3d at 1064. “The determination of whether a particular issue

raises a substantial question is to be evaluated on a case-by-case basis.”

Commonwealth           v.   Fiascki,    886    A.2d   261,   263   (Pa.Super.2005).

“Generally, however, in order to establish a substantial question, the

appellant must show actions by the sentencing court inconsistent with the

Sentencing Code or contrary to the fundamental norms underlying the

sentencing process.”         Commonwealth v. Titus, 816 A.2d 251, 255

(Pa.Super.2003).

        Here, Appellant filed a timely notice of appeal and preserved his issues

in a motion for reconsideration of sentence.              Further, Appellant’s brief

includes a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).9                See Appellant’s Brief, p. 3.

Accordingly, we now determine whether Appellant has raised a substantial

question for review and, if so, proceed to a discussion of the merits of the

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9
    Appellant’s Rule 2119(f) statement states:

        The trial court abused its discretion in failing to sentence the
        Appellant to time served. The court failed to consider that
        Appellant had already served substantial time, and that he
        intended to relocate to North Carolina, and that said sentence
        will cause him expense and great inconvenience. Appellant
        alleges that these issues constitute a substantial question.

Appellant’s Brief, p. 3.




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claim. See Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa.1987).

       “A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental

norms    which   underlie    the   sentencing    process.”    Commonwealth          v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a

substantial question on a case-by-case basis.”          Id.       A bald or generic

assertion that a sentence is excessive does not, by itself, raise a substantial

question justifying this Court’s review of the merits of the underlying claim.

Id.;    see   also   Commonwealth        v.     Harvard,     64    A.3d   690,   701

(Pa.Super.2013). Additionally, “[t]his Court has held on numerous occasions

that a claim of inadequate consideration of mitigating factors does not raise

a substantial question for our review.”         Commonwealth v. Disalvo, 70

A.3d 900, 903 (Pa.Super.2013); see also Commonwealth v. Ratushny,

17 A.3d 1269, 1273 (Pa.Super.2011) (“argument that the sentencing court

failed to adequately consider mitigating factors in favor of a lesser sentence

does not present a substantial question appropriate for our review.”);

Commonwealth v.         Ladamus,       896    A.2d   592,    595    (Pa.Super.2006)

(“[A]ppellant’s contention that the trial court did not adequately consider a

mitigating    circumstance   when    imposing     sentence    does    not   raise   a




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substantial question sufficient to justify appellate review of the merits of

such claim.”).

      In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial

court abused its discretion in failing to sentence him to time served because

he   (1)   had   already   served   substantial   time,   and   (2)   probationary

requirements would hinder his intended relocation to North Carolina.          See

Appellant’s Brief, p. 3.    Appellant’s claim effectively requests this Court to

substitute our judgment for that of the sentencing court and to determine

whether the alleged mitigating factors warrant an alteration of sentence.

Therefore, this claim does not present a substantial question for this Court’s

review.

      Even had Appellant stated a substantial question for review, we would

affirm on the merits.      We review discretionary aspects of sentence claims

under the following standard of review:

            If this Court grants appeal and reviews the sentence, the
      standard of review is well-settled: sentencing is vested in the
      discretion of the trial court, and will not be disturbed absent a
      manifest abuse of that discretion.        An abuse of discretion
      involves a sentence which was manifestly unreasonable, or
      which resulted from partiality, prejudice, bias or ill will. It is
      more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

      Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion.     Instead, the trial court imposed a sentence that



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was consistent with the protection of the public, took into account the

gravity of the offense as it related to the impact on the life of the victim and

on the community, and considered the Appellant’s rehabilitative needs, as

required by 42 Pa.C.S. § 9721(b).

       In imposing sentence, the trial court considered the sentencing

guidelines, the pre-sentence investigation report,10 the arguments of

counsel, Appellant’s testimony, the            testimony of Appellant’s mother,

Appellant’s age, his criminal history, his rehabilitative needs, and his

acceptance of responsibility.        N.T. 5/20/2014, pp. 10-37.   The trial court

then sentenced Appellant to a standard range sentence11 with a reporting

date 20 days in the future to allow him to aid his grandmother in a real

estate transaction in North Carolina on June 2, 2014. See N.T. 5/20/2014,

pp. 22-25, 32-34.12        We find no abuse of discretion in the trial court’s

sentencing.
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10
   We note that where a sentencing court had the benefit of a presentence
investigation report, we can assume the sentencing court was aware of
relevant information contained therein and weighed that information along
with any mitigating factors. Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010).
11
  See Moury, 992 A.2d at 171 (“[W]here a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.”).
12
  We further note the trial court stated it had no objection to transferring
Appellant’s probationary supervision to another jurisdiction in the event
Appellant relocates. See N.T. 5/20/2014, p. 24.




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      Given the foregoing, Appellant has not raised a substantial question

regarding the appropriateness of his sentence.       Further, even if he had

raised a substantial question for review, his claim would fail on the merits.

Accordingly, we agree with counsel that Appellant’s claim is wholly frivolous.

Moreover, our independent review of the record has revealed no other

preserved issues of arguable merit. Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.         Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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