J-S10022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
            v.                              :
                                            :
                                            :
JOSE OTERO                                  :
                                            :
                    Appellant               :     No. 1848 EDA 2017

            Appeal from the Judgment of Sentence April 4, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002819-2016


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                                     FILED MAY 30, 2018

     Appellant, Jose Otero, appeals from the judgment of sentence entered

on April 4, 2017, as made final by the denial of his post-sentence motion on

April 17, 2017.    In this direct appeal, Appellant’s court-appointed counsel

filed both a petition to withdraw as counsel and an accompanying brief

pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981),

and its federal predecessor, Anders v. California, 386 U.S. 738 (1967).

We   conclude     that   Appellant’s   counsel    complied   with   the   procedural

requirements necessary to withdraw.              Furthermore, after independently

reviewing the record, we conclude that the appeal is wholly frivolous. We,

therefore, grant counsel’s petition to withdraw and affirm the judgment of

sentence.
J-S10022-18


        The factual background and procedural history of this case are as

follows. During the week of January 28, 2016, Appellant sold narcotics to a

confidential informant on six occasions.         When police executed search

warrants related to the drug investigation, they recovered a handgun with

an altered serial number and a utility bill bearing Appellant’s name.

        On March 22, 2016, the Commonwealth charged Appellant via criminal

information with possession with intent to deliver a controlled substance,1

possession of a controlled substance by an unauthorized person,2 possession

of a firearm by a prohibited person,3 possessing an instrument of crime,4

and possessing a firearm with an altered serial number.5      On January 30,

2017, Appellant was convicted of possession with intent to deliver a

controlled substance, possessing a firearm with an altered serial number,

and possession of a firearm by a prohibited person. On April 4, 2017, the

trial court sentenced Appellant to an aggregate term of three to ten years’

imprisonment.      On April 10, 2017, Appellant filed a post-sentence motion.



____________________________________________


1   35 P.S. § 780-113(a)(30).

2   35 P.S. § 780-113(a)(16).

3   18 Pa.C.S.A. § 6105(a) (1).

4   18 Pa.C.S.A. § 907.

5   18 Pa.C.S.A. § 6110.2(a).



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The trial court denied that motion on April 17, 2017.      This timely appeal

followed.6

       Appellant’s counsel raises two issues in his Anders brief:

       1. Was the sentence imposed upon [Appellant] by the [trial]
          court manifestly excessive?

       2. Was [Appellant] denied effective assistance of counsel due to
          the fact that his trial counsel failed to preserve a claim that
          the verdict is against the weight of the evidence?

Anders Brief at 8.

       Before reviewing the merits of this appeal, we must first determine

whether counsel has fulfilled the necessary procedural requirements for

withdrawing as counsel. See Commonwealth v. Blauser, 166 A.3d 428,

431 (Pa. Super. 2017) (citation omitted).        To withdraw under Anders,

court-appointed counsel

       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. 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.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (cleaned

up).

____________________________________________


6 Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.



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        If counsel meets all of the above 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.” Commonwealth v. Santiago, 978 A.2d

349, 355 n.5 (Pa. 2009), quoting McClendon, 434 A.2d at 1187. It is only

when both the procedural and substantive requirements are satisfied that

counsel will be permitted to withdraw. In the case at bar, counsel has met

all of the above procedural obligations. We now turn to whether this appeal

is wholly frivolous.7

        The first issue in counsel’s Anders brief challenges the discretionary

aspects of Appellant’s sentence.          Pursuant to statute, Appellant does not

have an automatic right to appeal the discretionary aspects of his sentence.

See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

        As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

        we must engage in a four part analysis to determine: (1)
        whether the appeal is timely; (2) whether Appellant preserved
        his [or her] issue; (3) whether Appellant’s brief includes a
        concise statement of the reasons relied upon for allowance of
        appeal with respect to the discretionary aspects of sentence; and
        (4) whether the concise statement raises a substantial question
        that the sentence is appropriate under the [S]entencing [C]ode.

____________________________________________


7   Appellant did not file a response to counsel’s Anders brief.



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Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa. Super. 2017)

(citation omitted).   Appellant filed a timely notice of appeal and preserved

the issue in his post-sentence motion.     Although counsel did not include a

Pennsylvania Rule of Appellate Procedure 2119(f) statement in his Anders

brief, we turn to whether this case raises a substantial question.       See

Commonwealth v. Bynum–Hamilton, 135 A.3d 179, 184 (Pa. Super.

2016).

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d

1086, 1090 (Pa. Super. 2017) (citation omitted).      “A substantial question

exists 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. Grays, 167

A.3d 793, 816 (Pa. Super. 2017), appeal denied, 178 A.3d 106 (Pa. 2018)

(citation omitted).

      In his post-sentence motion, Appellant argued that the trial court

failed to adequately consider certain mitigating factors. Moreover, Appellant

was sentenced in the middle of the applicable sentencing guidelines range

and the three sentences were ordered to run concurrently. Thus, Appellant’s

argument is a bald assertion that the trial court failed to consider certain

mitigating factors.    This Court has held “that a claim of inadequate


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consideration of mitigating factors does not raise a substantial question for

our review.” Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa. Super.

2018) (cleaned up). Hence, any argument that Appellant is entitled to relief

on his discretionary aspects claim is wholly frivolous.

      In his second issue, Appellant argues that trial counsel was ineffective

by failing to preserve a claim that the verdict was against the weight of the

evidence. Except in limited circumstances not present in this case, claims of

ineffective assistance of counsel may not be raised on direct appeal. Cook,

175 A.3d at 351 n.3 (citation omitted). Thus, any argument related to the

ineffectiveness of Appellant’s trial counsel is wholly frivolous for purposes of

this direct appeal.

      In sum, we conclude that the issues raised in counsel’s Anders brief

are wholly frivolous. Furthermore, after an independent review of the entire

record, we conclude that no other issue of arguable merit exists. Therefore,

we grant counsel’s request to withdraw. Having determined that the issues

raised on appeal are wholly frivolous, we affirm the judgment of sentence.

      Petition to withdraw as counsel granted.            Judgment of sentence

affirmed.




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J-S10022-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/18




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