J-S74025-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                 : IN THE SUPERIOR COURT OF
                                              :      PENNSYLVANIA
                    Appellee                  :
                                              :
             v.                               :
                                              :
JORGE LUIS SANTIAGO,                          :
                                              :
                    Appellant                 : No. 762 EDA 2014

          Appeal from the Judgment of Sentence November 20, 2012,
                    Court of Common Pleas, Lehigh County,
              Criminal Division at No. CP-39-CR-0002650-2012

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED DECEMBER 22, 2014

       Appellant,   Jorge   Luis   Santiago   (“Santiago”),   appeals   from   the

judgment of sentence entered on November 20, 2012 by the Court of

Common Pleas of Luzerne County, Criminal Division, following his negotiated

guilty plea to persons not to possess, use, manufacture, control, sell or

transfer firearms1 and resisting arrest.2         Santiago’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 Santiago’s judgment of sentence.




1
    18 Pa.C.S.A. § 6105(a)(1).
2
    18 Pa.C.S.A. § 5104.


*Retired Senior Judge assigned to the Superior Court.
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      The trial court summarized the facts and procedural history of this

case as follows:

            On June 6, 2012, Allentown Police Officers were
            attempting to find a wanted individual at 117 South
            4th Street, Allentown, Lehigh County, Pennsylvania.
            They encountered a group of people, including
            [Santiago], who were standing near an automobile
            playing loud music. Officers observed [Santiago]
            walking away from the group and removing a Kel Tec
            .380 caliber handgun from his jacket. He placed it
            behind a tree and walked away. Officers recovered
            the gun and inspected it. They determined it was
            both loaded and stolen.

            Officers approached [Santiago] to place him under
            arrest. At the time of his arrest, he resisted the
            police by pulling away, twisting his body, and
            pushing Allentown Police Officer Michael Mancini,
            which caused cuts and scratches to his arm.
            [Santiago] was arrested and admitted having the
            gun.    Officer Mancini suffered from scrapes and
            bruises, but was not hospitalized as a result of this
            incident.

            Appellant was charged with [p]ersons [n]ot to
            [p]ossess     a    [f]irearm,    [r]eceiving  [s]tolen
            [p]roperty, [f]irearms [n]ot to be [c]arried [w]ithout
            a [l]icense, and [r]esisting [a]rrest.

            On October 19, 2012, [Santiago] entered a [g]uilty
            [p]lea to [p]ersons not to [p]ossess a [f]irearm, a
            [f]elony of the [s]econd [d]egree, and [r]esisting
            [a]rrest, graded as a [m]isdemeanor of the [s]econd
            [d]egree. In exchange for his plea, the other two
            charges were dropped by the Commonwealth.

            When he was interviewed in preparation of a
            [p]resentence [i]nvestigation [r]eport, [Santiago]
            told the investigator that he bought the gun
            approximately two weeks prior from “some crack
            head” for $150.00. He indicated he purchased it for



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          protection due to the unsafe nature of the streets in
          the City of Allentown. He acknowledged resisting
          arrest, explaining that the officers “kept telling me I
          had a warrant, but in all reality, I didn’t have a
          warrant.”

          [Santiago] was nineteen[-]years[-]old at the time of
          this offense and had no exposure to the adult
          system. However, he had a prior record score of
          [five] stemming from juvenile felony adjudications.
          Accordingly, the standard range on the firearms
          charge was [sixty] to [seventy-two] months, plus or
          minus twelve, with a prior record score of [five] and
          an offense gravity score of [ten]. The standard
          range on the resisting charge with a prior record
          score of [five] and an offense gravity score of [two]
          was one to nine months.

          On November 20, 2012, [Santiago] was sentenced to
          not less than [fifty-four] months nor more than [ten]
          years [of] imprisonment in a state correctional
          facility on [p]ersons not to [p]ossess a [f]irearm, and
          not less than [six] months nor more than [twenty-
          four] months on [r]esisting [a]rrest, running
          concurrently with the [c]ount 1 sentence. [Santiago]
          did not file any post-sentence motions or appeal.

          On March 25, 2013, [Santiago] filed a pro se
          [m]otion [pursuant to the Post Conviction Relief Act
          (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.] The Lehigh
          County Office of the Public Defender was appointed
          to represent [Santiago] on March 26, 2013, at which
          time counsel was given sixty days to file an
          [a]mended PCRA [p]etition. Kathryn R. Smith, Esq.
          of the Public Defender’s Office was assigned to
          [Santiago]’s case.   Attorney Smith requested an
          extension of time to file her [a]mended PCRA
          [p]etition, which was granted on May 21, 2013.
          Counsel filed the amended petition on July 25, 2013.

          An evidentiary hearing was held before this [c]ourt
          on September 13, 2013. At that time, [Santiago]
          narrowed his claims under the PCRA to only address



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           his post-sentence motion and appellate rights,
           withdrawing all other allegations of ineffective
           assistance and constitutional violations.       Both
           counsel offered arguments on the issues raised and
           presented the testimony from [Santiago] and
           Gregory R. Noonan, Esquire, [Santiago]’s trial
           counsel. The [n]otes of [t]estimony were ordered at
           the conclusion of that hearing and counsel were
           given ten days following the filing of the [n]otes of
           [t]estimony to submit any supplemental briefs or
           memoranda of law.

           On December 5, 2013, this [c]ourt entered an
           [o]rder and an accompanying [m]emorandum
           [o]pinion denying [Santiago]’s PCRA and finding that
           [Santiago] failed to demonstrate prejudice in support
           of his requested relief.

           On December 16, 2013, [Santiago], by and through
           his counsel, filed a [m]otion for [r]econsideration.
           On December 23, 2013, the [c]ourt entered an order
           vacating the PCRA decision so as to prevent the
           appellate period from running.

           On January 21, 2014, the [c]ourt conducted an oral
           argument on the reconsideration motion. Based on
           case law presented by [Santiago], Commonwealth
           v. Liston, 977 A.2d 1089 (Pa. 2009), the [c]ourt
           granted [Santiago]’s [m]otion for [r]econsideration
           and reinstated his post[-]sentence motion and
           appellate rights nunc pro tunc.

           On February 3, 2014, [Santiago] filed a [m]otion to
           [m]odify [s]entence. That motion was denied on
           February 4, 2014. [Santiago] then filed a timely
           notice of appeal. On March 18, 2014, [Santiago]
           filed  a   [c]oncise  [s]tatement    of   [m]atters
           [c]omplained of on [a]ppeal pursuant to Pa.R.A.P.
           1925(b).

Trial Court Opinion, 3/25/14, at 1-4 (footnotes omitted).




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      On appeal, Counsel has filed a petition to withdraw and brief pursuant

to Anders and Santiago.       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.

            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).

      Moreover, there are requirements as to precisely what an Anders

brief must contain:




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            [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.

      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 to

Withdraw as Counsel, 7/16/14, ¶¶ 3-4.        Counsel has filed a brief setting

forth one issue that he believes might arguably support an appeal.         See

Anders Brief at 7, 11-14. In conformance with Santiago, Counsel’s brief

includes summaries of the facts and procedural history of the case and




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discusses the only issue he believes might support Santiago’s appeal. See

id. at 8, 11-14. Counsel’s brief sets forth his conclusion that the appeal is

frivolous and includes citation to relevant authority.      See id. at 11-15.

Finally, Counsel has attached to his petition the letter that he sent to

Santiago, which enclosed Counsel’s petition and Anders brief and advised

Santiago 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.

Petition to Withdraw as Counsel, 7/16/14, Appendix A.

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

the lower court abused its discretion by imposing a sentence which was

manifestly unreasonable in that the court failed to take into consideration

the age and rehabilitative needs of the defendant in fashioning the

sentence?”    Anders Brief at 7.   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 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



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            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).

       This Court does not review such issues as a matter of right.              “An

appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when     challenging    the       discretionary   aspects     of    a     sentence.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).

The appellant must satisfy all of the following:

            (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 substantial question

exists when, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

       Santiago   argues   that    the   sentencing   court   did   not   take   into

consideration his age and rehabilitative needs when sentencing him.              See




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Santiago’s Brief at 11-14. A claim that a sentencing court failed to consider

the rehabilitative needs of the defendant does not present a substantial

question for our review.    See Commonwealth v. Griffin, 65 A.3d 932,

936-37 (Pa. Super. 2013) (holding that the appellant’s allegation that the

sentencing court failed to take into account his rehabilitative needs entitled

him to no relief), appeal denied, 76 A.3d 538 (Pa. 2013). Likewise, a claim

that a sentencing court failed to take into consideration the age of the

defendant does not raise a substantial question.     See Commonwealth v.

Cannon, 954 A.2d 1222, 1228-29 (Pa. Super. 2008) (finding that a claim

that the trial court did not consider the defendant’s age, rehabilitative needs,

and educational background did not present a substantial question).

Because Santiago has not raised a substantial question, his discretionary

aspects of sentence claim must fail.

      Even if we were to determine that Santiago’s claim did raise a

substantial question, we find no merit to the underlying allegation. Santiago

contends that the trial court abused its discretion in sentencing him because

it failed to consider his age and rehabilitative needs. Santiago’s Brief at 11-

14. Here, however, the record reflects that the trial court in fact considered

his age and rehabilitative needs.

            … I’m going to shave a little bit off. It will be a
            mitigated range but not by much. I’m doing it
            because you’re relatively young.        You have
            accumulated a horrendous record by the age of
            [nineteen]. And I would hope that you’ll take the



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            time while in State Prison to reflect upon what has
            brought you to that point and try to remember what
            your father’s example did for you, and how you’re
            creating the same example for your own children.
            You’ll try not to duplicate that if you have any sense
            at all.

N.T., 11/20/12, at 13.      Therefore, because the trial court took into

consideration each of these factors, Santiago’s argument that the sentencing

court did not contemplate his age and rehabilitative needs is frivolous.

Moreover, we note that the trial court sentenced Santiago in the mitigated

range of the sentencing guidelines, providing further support for the trial

court’s representation that it included both his age and rehabilitative needs

in its sentencing decision. Accordingly, we conclude that the trial court did

not abuse its discretion in sentencing Santiago.

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

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

assessment that Santiago’s direct appeal is frivolous.   Accordingly, we find

this appeal wholly frivolous and permit Counsel to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2014




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