J-A15022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY CHARLES GUTIERREZ                  :
                                               :
                       Appellant               :   No. 1711 MDA 2017

             Appeal from the Judgment of Sentence October 6, 2017
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0001007-2017

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

MEMORANDUM BY MURRAY, J.:                                  FILED JULY 12, 2018

        Anthony Charles Gutierrez (Appellant) appeals from the judgment of

sentence imposed following the entry of his negotiated guilty plea to

possession with intent to manufacture or deliver a controlled substance.1

Appellant’s    appellate     counsel     (“Counsel”)   seeks   to   withdraw   from

representation pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967) and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).    Upon review, we grant Counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

        The pertinent facts and procedural history of this case are as follows.

On August 22, 2017, Appellant pled guilty to one count of possession with

intent to manufacture or deliver a controlled substance pursuant to a

____________________________________________


1   35 P.S. 780-113(a)(30).
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negotiated plea agreement. The plea agreement, however, was open with

respect to Appellant’s sentence. On October 6, 2017, the trial court sentenced

Appellant to 24 to 48 months of incarceration. The court ordered this sentence

to run consecutively to a sentence Appellant was already serving in an

unrelated matter.

      Appellant did not file any post-sentence motions. Rather, on October

31, 2017, Appellant timely appealed to this Court. On November 2, 2017, the

trial court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate

Procedure. On November 21, 2017, Counsel filed a statement of intent to file

an Anders brief.    See Pa.R.A.P. 1925(c)(4).       On April 6, 2018, Counsel

petitioned for leave to withdraw with this Court.

      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.




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      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:

      [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 at 361. 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.




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      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, he finds this appeal to be wholly frivolous. Petition for

Leave to Withdraw as Counsel, 4/6/18, at ¶ 2. In conformance with Santiago,

Counsel’s brief includes summaries of the facts and procedural history of the

case and discusses the only issue he believes might arguably support

Appellant’s appeal. See Anders Brief at 2-8. Counsel’s brief sets forth his

conclusion that the appeal is frivolous and includes citation to relevant

authority. See id. at 5-8. Finally, Counsel has attached to his petition to

withdraw the letter that he sent to Appellant, which enclosed Counsel’s

petition and Anders brief and 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.

      The lone issue presented by Counsel in the Anders brief is “whether the

imposition of a 24 month to 48 month sentence in a state correctional

institution is harsh and excessive when [Appellant] took responsibility by

pleading guilty.” Anders Brief at 2. This issue challenges the discretionary

aspects of Appellant’s sentence.   Our standard of review when considering

discretionary aspects of sentencing claims is as follows:

      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

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      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:

      (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,


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77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

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

      Importantly, “[i]ssues 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.” Commonwealth

v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006) (citation and

quotations omitted).

      Appellant has waived his discretionary aspects of sentencing claim. Our

review of the certified record reveals that Appellant never filed a post-

sentence motion challenging the discretionary aspects of his sentence.

Additionally, the transcript of the sentencing proceedings reveals that

Appellant did not challenge the discretionary aspects of his sentence during

sentencing.   See N.T., 10/6/17, at 1-5.      Thus, Appellant has waived his

discretionary aspects of sentencing claim. See Shugars, 895 A.2d at 1273-

1274. Counsel is correct that raising this issue on appeal would be frivolous.

      Moreover, even if Appellant had properly preserved his discretionary

aspects of sentencing claim for appellate review, we would conclude that the

claim is frivolous. Section 9721(b) of the Sentencing Code sets forth general

sentencing standards for trial courts and provides, in pertinent part:

         (b) General standards.—. . . the court shall follow the
      general principle that the sentence imposed should call for
      confinement that is consistent with the protection of the public,
      the gravity of the offense as it relates to the impact on the life of

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      the victim and on the community, and the rehabilitative needs of
      the defendant. . . . In every case in which the court imposes a
      sentence for a felony or misdemeanor, modifies a sentence,
      resentences an offender following revocation of probation, county
      intermediate punishment or State intermediate punishment or
      resentences following remand, the court shall make as a part of
      the record, and disclose in open court at the time of sentencing,
      a statement of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b).

      The trial court did not abuse its discretion in sentencing Appellant. The

record reflects that Appellant received a sentence in the standard guideline

range. N.T., 10/6/17, at 1-5. Additionally, the trial court had a presentence

investigation report and acknowledged reviewing it.             Id.      “[W]here the

sentencing court imposed a standard-range sentence with the benefit of a pre-

sentence      report,   we   will    not    consider   the    sentence     excessive.”

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). “In those

circumstances, we can assume the sentencing court was aware of relevant

information     regarding    the    defendant’s   character   and     weighed   those

considerations along with mitigating statutory factors.” Id. (quotations and

citations omitted). Therefore, there is no support for Appellant’s claim that

his sentence was excessive.           Accordingly, we agree with Counsel that

Appellant’s discretionary aspects of sentencing claim is frivolous.

      Finally, after conducting our own independent review of the record, we

have determined that there are no issues of merit and agree with Counsel’s

assessment that Appellant’s direct appeal is frivolous. We thus find this appeal

wholly frivolous and permit Counsel to withdraw.

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     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/18




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