J-S66004-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

DARREN ROBINSON

                         Appellant                     No. 42 MDA 2016


        Appeal from the Judgment of Sentence December 18, 2015
            In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0001915-2015


BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                            FILED OCTOBER 19, 2016

      Darren Robinson appeals from the judgment of sentence of twelve to

thirty months imprisonment that was imposed after he pled guilty to

possession of a controlled substance with intent to deliver ("PWID").

Counsel has filed a petition to withdraw from representation and a brief

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                   We grant

counsel’s petition to withdraw and affirm.

      On April 28, 2015, the Wilkes-Barre Anti-Crime Unit and the

Pennsylvania State Police Troop P Vice Unit were conducting a joint drug

interdiction in Wilkes-Barre. The police officers used a confidential informant

("CI") to contact Appellant by phone, and listened in as he negotiated a
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purchase of heroin. Appellant directed the CI, who was given pre-recorded

buy money, to the corner of Puritan Lane and South Meade Street to

consummate      the   sale.   Surveillance officers observed the CI    meet

momentarily with Appellant. The CI then used a pre-arranged signal to alert

police that the exchange had occurred.         Police immediately arrested

Appellant, who was in possession of the pre-recorded currency, while the CI

went directly to police and gave them a quantity of heroin.

       Appellant was charged with a single count of PWID, and tendered an

open guilty plea to that charge on November 2, 2015.             The matter

proceeded to sentencing on December 18, 2015, where the court had the

benefit of a pre-sentence report. Appellant, who was serving a jail term due

to a probation revocation, had a prior record score of two and an offense

gravity score of six, resulting in a standard range of nine to sixteen months

in jail.   The court imposed a standard range sentence of twelve to thirty

months imprisonment. The court proffered that its sentence was premised

upon the serious nature of selling heroin and Appellant's criminal history,

which involved firearms offenses. It also observed that Appellant previously

was given county sentences, and had failed to curb his criminal activities.

The sentence was imposed consecutively to the revocation sentence

Appellant was then serving. Appellant was informed of his post-sentencing

rights. N.T. Sentencing, 12/18/15, at 7. He failed to file a post-sentence

motion, but did file this timely appeal.

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     As noted, counsel has moved to withdraw. Since we do not consider

the merits of an issue raised in an Anders brief without first reviewing a

request to withdraw, we now address counsel’s petition to withdraw.

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).

In order to be permitted to withdraw, counsel must meet three procedural

requirements: 1) file a petition for leave to withdraw and state that, after

making a conscientious examination of the record, counsel has concluded

that the appeal is frivolous; 2) provide a copy of the Anders brief to the

defendant; and 3) inform the defendant that he has the right to retain

private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court’s attention. Id.

     In his motion to withdraw, counsel avers that he examined the record,

determined the appeal was frivolous, and concluded there are no meritorious

issues to be raised in this appeal.     Counsel, as evidenced by a letter

attached to the petition to withdraw, sent Appellant a copy of the withdrawal

motion and brief filed herein and advised Appellant that he had the right to

proceed pro se or with the assistance of privately retained counsel. Thus,

the procedural aspects of Anders are satisfied.

     We now examine the briefing requirements when counsel seeks to

withdraw on direct appeal. Pursuant to Santiago, an Anders 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

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      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, supra at 361.

      Counsel herein complied with the mandates of Santiago by setting

forth the procedural and factual history of the case.     He also establishes,

through legal citation, the lack of merit of Appellant's position raised on

appeal: "Appellant contends that the trial court abused its discretion in

failing to sentence him to the low-end of the Sentencing Guidelines which

constitutes an abuse of discretion and substantial question."      Appellant's

brief at 5.

      This challenge to the discretionary aspects of Appellant’s sentence, as

noted by counsel, has been waived.        Appellant raised no objection to the

sentence when it was imposed, and, despite being informed of his post-

sentence rights, he failed to file a post-sentence motion. Commonwealth

v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003) (citation omitted) (“[I]ssues

challenging the discretionary aspects of sentencing must be raised in a post-

sentence motion or by raising the claim during the sentencing proceedings.

Absent such efforts, an objection to a discretionary aspect of a sentence is

waived.”).    Hence, we concur with counsel’s assessment that this issue

cannot form the basis for appellate relief.




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      We have conducted an independent review of the record, as required

by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),

and have concluded that there are no preserved non-frivolous issues that

can be raised in this appeal.   Hence, we concur with counsel’s conclusion

that this appeal is wholly frivolous and allow him to withdraw.

      Petition of Matthew P. Kelly, Esquire, to withdraw as counsel is

granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




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