J-S62003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

BRENTON ANDRE JOSEPHS

                      Appellant                 No. 54 MDA 2016


       Appeal from the Judgment of Sentence November 23, 2015
             in the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0005777-2014



COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

BRENTON ANDRE JOSEPHS

                      Appellant                 No. 55 MDA 2016


       Appeal from the Judgment of Sentence November 23, 2015
             in the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0001735-2015


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                   FILED AUGUST 19, 2016

     Brenton Andre Josephs (“Appellant”) appeals from the November 23,

2015 judgment of sentence entered in the Berks County Court of Common
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Pleas following his guilty plea convictions for criminal mischief1 at Docket No.

CP-06-CR-0005777-2014, and delivery of a controlled substance2 at Docket

No. CP-06-CR-0001735-2015.             Appellant’s counsel has filed an Anders3

brief, together with a petition to withdraw as counsel.          We affirm the

judgment of sentence and grant counsel’s petition to withdraw.

        On November 23, 2015, Appellant entered an open guilty plea to one

count of criminal mischief and one count of delivery of a controlled

substance stemming from separate incidents.          On the same day, the trial

court sentenced Appellant to one to seven years’ incarceration on the

delivery of a controlled substance conviction and a concurrent sentence of

six to twelve months’ incarceration on the criminal mischief conviction.

Appellant filed a post-sentence motion requesting reconsideration or

modification of the sentence imposed. The trial court denied the post-trial

motion on December 9, 2016. On January 8, 2016, Appellant filed a timely

notice of appeal,4 and on May 23, 2016, counsel filed the Anders brief

together with an application to withdraw as counsel.          Appellant filed no

further submissions either pro se or through privately-retained counsel.

____________________________________________


1
    18 Pa.C.S. § 3304.
2
    35 P.S. § 780-113(a)(30).
3
    Anders v. California, 386 U.S. 738 (1967).
4
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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        As previously noted, Appellant’s counsel has filed an application

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.5              Before

addressing the merits of Appellant’s underlying issues presented, we must

first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa.Super.2007) (en banc).

        Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established by our

Supreme Court in Santiago. The 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
        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. Counsel must also provide the appellant with a

copy of the Anders brief, together with a letter that advises the appellant of

his or her right to “(1) retain new counsel to pursue the appeal; (2) proceed

pro se on appeal; or (3) raise any points that the appellant deems worthy of

the court’s attention in addition to the points raised by counsel in the

Anders     brief.”     Commonwealth v. Nischan, 928            A.2d 349, 353

(Pa.Super.2007).         Substantial compliance with these requirements is
____________________________________________


5
    978 A.2d 349 (Pa.2009).



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sufficient.    Commonwealth        v.   Wrecks,     934   A.2d    1287,   1290

(Pa.Super.2007). “After establishing that the antecedent requirements have

been met, this Court must then make an independent evaluation of the

record to determine whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).

      Instantly, counsel contemporaneously filed a petition to withdraw as

counsel with the Anders brief. The petition states counsel’s determination

that no non-frivolous appellate issues exist.    See Petition to Withdraw As

Counsel, ¶ 4. The petition further explains that counsel notified Appellant of

the withdrawal request and forwarded a copy of the brief to Appellant

together with a letter explaining his right to proceed pro se or with new,

privately-retained counsel to raise any additional points or arguments that

Appellant believed had merit. See id. at ¶ 5; see also Letter to Appellant,

May 17, 2016.     In the Anders brief, counsel provides a summary of the

facts and procedural history of the case with citations to the record, refers to

evidence of record that might arguably support the issue raised on appeal,

provides citations to relevant case law, and states her conclusion that the

appeal is wholly frivolous and her reasons therefor. See Anders Brief, pp.

6-17. Accordingly, counsel has substantially complied with the requirements

of Anders and Santiago.

      As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issue of

arguable merit raised in the Anders brief:

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      Whether the sentencing court abused its discretion in imposing a
      sentence of one (1) to seven (7) years of incarceration for
      [d]elivery of [m]arijuana and a concurrent sentence of six (6) to
      twelve (12) months incarceration for [c]riminal [m]ischief where
      the sentence was manifestly excessive and fails to consider the
      fundamental norms underlying the Sentencing Code, including
      mitigating factors such as the Appellant’s good work history, his
      care for two minor children and his taking responsibility for his
      actions in entering a guilty plea?

Anders Brief, p. 5.

      This claim raises a challenge to the discretionary aspects of Appellant’s

sentence.   “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.”   Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011).      Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Allen, 24 A.3d at 1064.

      Here, Appellant filed a timely notice of appeal and preserved his

discretionary aspects of sentencing issue in a motion for reconsideration of

sentence.   Further, Appellant’s brief includes a concise statement of the

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).

See Anders Brief, pp. 11-12.       Accordingly, we now determine whether


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Appellant has raised a substantial question for review and, if so, proceed to

a discussion of the         merits of the     claim.     See Pa.R.A.P. 2119(f);

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).

       “A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental

norms    which   underlie    the   sentencing    process.”      Commonwealth         v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a

substantial question on a case-by-case basis.”            Id.      A bald or generic

assertion that a sentence is excessive does not, by itself, raise a substantial

question justifying this Court’s review of the merits of the underlying claim.

Id.;    see   also   Commonwealth        v.     Harvard,      64    A.3d   690,   701

(Pa.Super.2013).     Further, “[t]his Court has held on numerous occasions

that a claim of inadequate consideration of mitigating factors does not raise

a substantial question for our review.”         Commonwealth v. Disalvo, 70

A.3d 900, 903 (Pa.Super.2013); see also Commonwealth v. Ratushny,

17 A.3d 1269, 1273 (Pa.Super.2011) (“argument that the sentencing court

failed to adequately consider mitigating factors in favor of a lesser sentence

does not present a substantial question appropriate for our review.”);

Commonwealth v.         Ladamus,       896    A.2d     592,   595    (Pa.Super.2006)

(“[A]ppellant’s contention that the trial court did not adequately consider a

mitigating    circumstance    when   imposing     sentence      does   not   raise   a

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substantial question sufficient to justify appellate review of the merits of

such claim.”).

       “[A] substantial question exists when a sentencing court imposed a

sentence in the aggravated range without considering mitigating factors.”

Commonwealth v. Rhoades, 8 A.3d 912, 919 n.12 (Pa.Super.2010) (citing

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.2003))

(emphasis in original). However, “where a sentence is within the standard

range of the guidelines, Pennsylvania law views the sentence as appropriate

under the Sentencing Code.”           Commonwealth v. Moury, 992 A.2d 162,

171 (Pa.Super.2010).

       In his Pa.R.A.P. 2119(f) statement and his brief, Appellant alleges that

the trial court abused its discretion by sentencing him without considering

certain mitigating factors. See Anders Brief, p. 9.6 Such a claim does not

raise a substantial question for review. See Disalvo, supra.7


____________________________________________


6
  The mitigating factors Appellant claims the trial court failed to consider
include his good work history, his care for his children and his niece and
nephew, his statement of remorse at his sentencing, and his taking
responsibility by pleading guilty. See Anders Brief, p. 14.
7
  We further note Appellant’s claim does not allege that the sentencing court
departed from the standard range and sentenced Appellant in the
aggravated range of the sentencing guidelines. It alleges merely that
Appellant received a sentence at the higher end of the standard range.
Therefore, this claim does not present a substantial question for this Court’s
review as an unexplained departure from the sentencing guidelines coupled
with a claim of excessiveness. See Moury, supra.



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      Moreover, even had Appellant stated a substantial question for review,

we would affirm on the merits. We review discretionary aspects of sentence

claims under the following standard of review:

      [S]entencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias
      or ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

      Initially, where a sentencing judge had the benefit of a presentence

investigation report, it is presumed that the judge was aware of all relevant

information   regarding   the   defendant’s   character   and   weighed       those

considerations along with any mitigating factors.          Commonwealth v.

Boyer, 856 A.2d 149, 154 (Pa.Super.2004).

      Additionally, the sentencing guidelines are merely advisory in nature.

See Commonwealth v. Walls, 926 A.2d 957, 964 (Pa.2007) (“[T]he

guidelines have no binding effect, create no presumption in sentencing, and

do not predominate over other sentencing factors – they are advisory

guideposts that are valuable, may provide an essential starting point, and

that must be respected and considered; they recommend, however, rather

than require a particular sentence.”).        “[I]t is well-established that a

sentencing court can impose a sentence that is the maximum period

authorized by the statute, 42 Pa.C.S. § 9756(a).”          Commonwealth v.

Saranchak, 675 A.2d 268, 277 n. 17 (Pa.1996).

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       Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion. See generally N.T. 11/23/2015. Instead, the trial

court imposed a sentence that was consistent with the protection of the

public, took into account the gravity of the offense as it related to the impact

on the life of the victim and on the community, and considered the

Appellant’s rehabilitative needs, as required by 42 Pa.C.S. § 9721(b). Id.

       The trial court explained that, in sentencing Appellant to a standard

range sentence, it took into consideration the nature and circumstances of

the offense, the history and characteristics of Appellant, the Sentencing

Guidelines, the pre-sentence investigation report, and the testimony from

the sentencing hearing.8        See Trial Court Pa.R.A.P. 1925(a) Opinion, filed

March 29, 2016, pp. 4-5; N.T. 11/23/2015, p. 15.

       We find no abuse of discretion in the trial court’s imposition of

Appellant’s standard range sentence. Accordingly, Appellant’s excessiveness

claim fails on the merits.

       We agree with counsel that Appellant’s claim is wholly frivolous.

Moreover, our independent review of the record has revealed no other

preserved issues of arguable merit. Accordingly, we affirm the judgment of

sentence.


____________________________________________


8
  Defense counsel expressly informed the trial court that Appellant cared for
his two children, his niece, and his nephew. See N.T. 11/23/2015, pp. 11-
12.



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J-S62003-16



     Judgment of sentence affirmed.    Counsel’s petition to withdraw

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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