J-S60020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                      v.

MARK G. REYNOLDS

                            Appellant                         No. 477 MDA 2014


            Appeal from the Judgment of Sentence January 3, 2014
               In the Court of Common Pleas of Luzerne County
            Criminal Division at Nos: CP-40-CR-0000335-2013, and
                            CP-40-CR-0000856-2013


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                              FILED DECEMBER 08, 2014

      Appellant Mark G. Reynolds appeals the Court of Common Pleas of

Luzerne County’s (trial court) January 3, 2014 judgment of sentence.

Appellant’s counsel has filed a petition to withdraw, alleging that this appeal

is wholly frivolous, and filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). For the reasons set forth below, we affirm and grant the petition to

withdraw.

      The     facts   and   procedural     history      underlying    this   appeal   are

undisputed. Briefly, on November 18, 2013, Appellant pled guilty to theft by

deception (18 Pa.C.S.A. § 3922(a)(3)) at docket number 335 and to two

counts   of   terroristic   threats     with   intent    to   terrorize   (18   Pa.C.S.A.

§ 2706(a)(1)) and resisting arrest (18 Pa.C.S.A. § 5104) at docket number
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856. On January 3, 2014, the trial court sentenced Appellant to thirteen to

thirty months’ incarceration in a state correctional institution for his

convictions for theft by deception, and the two counts of terroristic threats.

The trial court also sentenced Appellant to nine to eighteen months’

imprisonment for the resisting arrest conviction. The court ordered the

sentences to run concurrently.

      On January 13, 2014, Appellant filed a motion to modify his sentence,

requesting that he be permitted to serve his sentence at the Luzerne County

Correctional Facility (county facility). The trial court denied the motion on

January 16, 2014. Appellant appealed to this Court.

      Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, in which he argued that the trial court abused its

discretion in refusing to allow him to serve his sentence at the county

facility, the trial court issued a Pa.R.A.P. 1925(a) opinion on April 17, 2014.

In its Rule 1925(a) opinion, the trial court concluded that Appellant’s

challenge to the discretionary aspects of the sentence imposed was

meritless. Specifically, the trial court concluded that Appellant failed to raise

a substantial question.

      On July 10, 2014, Appellant’s counsel filed a motion to withdraw as

counsel and filed an Anders brief, wherein counsel raises a single issue for

our review: “Whether the [t]rial [c]ourt abused its discretion in sentencing

[Appellant].” Anders/Santiago Brief at 1.




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        When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw.    Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).      It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

        Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that he was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

his Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention.   Accordingly, we conclude that counsel has satisfied

the procedural requirements of Anders.

        We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court

held:

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      [I]n 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 on point that have led to the conclusion that
      the appeal is frivolous.

Santiago, 978 A.2d at 361.        Here, our review of counsel’s brief indicates

that he has complied with the briefing requirements of Santiago.                  We,

therefore, conclude that counsel has satisfied the minimum requirements of

Anders/Santiago.

      Once    counsel     has   met   his   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 355 n.5. Thus,

we now turn to the merits of Appellant’s appeal.

      Appellant essentially argues that the trial court abused its discretion in

requiring him to serve his sentence at a state correctional institution, instead

of the county facility.

       It is well-settled that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.”       Commonwealth v. Dunphy, 20 A.3d 1215,

1220 (Pa. Super. 2011).          Rather, where an appellant challenges the

discretionary aspects of a sentence, an appellant’s appeal should be

considered as a petition for allowance of appeal.                Commonwealth v.




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W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).                As we stated in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
       An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test:
          [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. [720]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis.     See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

       Here, Appellant has satisfied the first two requirements of the four-

part Moury test.         Appellant filed a timely appeal to this Court, and

preserved the issue on appeal through his motion to modify the sentence

imposed. Appellant, however, has failed to meet the third prong, because

he failed to include a Pa.R.A.P. 2119(f) statement in his brief.1 Nonetheless,

____________________________________________


1
  Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).



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“[a] failure to include the Rule 2119(f) statement does not automatically

waive     an   appellant’s   argument,”     unless   the   appellee,   i.e.,   the

Commonwealth, objects to such omission. Commonwealth v. Roser, 914

A.2d 447, 457 (Pa. Super. 2006), appeal denied, 927 A.2d 624 (Pa. 2007).

Instantly, the Commonwealth has not objected to the absence of the Rule

2119(f) statement as it did not file an appellate brief and, as a result, we will

review Appellant’s claim.

        Under Section 9762 of the Sentencing Code, 42 Pa.C.S.A. § 9762,
        All persons sentenced three or more years after the effective
        date [(November 24, 2008)] of this subsection to total or partial
        confinement shall be committed as follows:
             ....
           (2) Maximum terms of two years or more but less than five
           years shall be committed to the Department of Corrections
           for confinement, except upon a finding of all of the
           following:
               (i) The chief administrator of the county prison, or
               the administrator’s designee, has certified that the
               county prison is available for the commitment of
               persons sentenced to maximum terms of two or
               more years but less than five years.
               (ii) The attorney for the Commonwealth has
               consented to the confinement of the person in the
               county prison.
               (iii) The sentencing court has approved the
               confinement of the person in the county prison
               within the jurisdiction of the court.

42 Pa.C.S.A. § 9762(b)(2) (emphasis added).

        Here, based on the plain language of Section 9762(b)(2), the trial

court did not abuse its discretion in directing Appellant serve his sentence at

a state correctional institution, instead of the county facility. Moreover, we

note that Appellant provides absolutely no evidentiary support, nor does our


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review of the record reveal any, for how he meets the exceptions under

Section 9262(b)(2). As the trial court found, none of the exceptions apply in

the case sub judice. Trial Court Opinion, 4/17/14, at 6.

     We have conducted an independent review of the record and

addressed Appellant’s issue regarding his state sentence.     Based on our

conclusions above, we agree with counsel that the issue Appellant seeks to

litigate in this appeal is wholly frivolous. Also, we do not discern any non-

frivolous issues that Appellant could have raised.     We, therefore, grant

counsel’s petition to withdraw and affirm the judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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