J-S37025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMAL LOUIS PAGE,

                        Appellant                  No. 1501 WDA 2015


        Appeal from the Judgment of Sentence September 2, 2015
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0000116-2015


BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JUNE 03, 2016

     Appellant, Jamal Louis Page, appeals from the judgment of sentence

entered on September 2, 2015, in the Erie County Court of Common Pleas.

Appellate counsel has filed a petition seeking to withdraw her representation

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a

withdrawal from representation on direct appeal.    After careful review, we

grant counsel’s petition to withdraw and affirm Appellant’s judgment of

sentence.

     Following a one-day jury trial, Appellant was convicted of one count of

possession of a firearm by a prohibited person. Appellant was sentenced on

September 2, 2015, to a period of thirty-six to seventy-two months of
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incarceration.   Order, 9/2/15; N.T., 9/2/15, at 11-12.         Appellant was

credited six days of incarceration. N.T., 9/2/15, at 12.

      On September 9, 2015, Appellant filed a post-sentence motion for

reconsideration of his sentence. By order entered September 16, 2015, the

trial court denied Appellant’s post-sentence motion. Appellant filed a timely

notice of appeal on September 29, 2015. Also on that date, counsel filed a

statement of intent to file an Anders brief and withdraw as counsel pursuant

to Pa.R.A.P. 1925(c)(4). In response to counsel’s statement, the trial court

issued an opinion stating that, based on counsel’s statement of intent to file

an Anders brief, the court had no issues to address as none had been

raised. Trial Court Opinion, 10/1/15.

      On November 2, 2015, Attorney Nicole Sloane, who had perfected

Appellant’s appeal in this matter, filed a petition to withdraw as counsel

because Assistant Public Defender Emily Mosco Merski had entered her

appearance on Appellant’s behalf. On November 6, 2015, this Court issued

an order granting Attorney Sloane’s request to withdraw as counsel, noting

that Attorney Merski had entered her appearance on Appellant’s behalf.

Order, 1501 WDA 2015, 11/6/15.          Attorney Merski subsequently filed her

Anders brief and petition to withdraw on February 2, 2016.

      Before we address the issue that Appellant’s counsel raised on appeal,

we must resolve appellate counsel’s request to withdraw. Commonwealth

v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are


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procedural and briefing requirements imposed upon an attorney who seeks

to withdraw on direct appeal.      The procedural mandates are that counsel

must:

        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) furnish a copy
        of the brief to the defendant; and 3) advise the defendant that
        he or she has the right to retain private counsel or raise
        additional arguments that the defendant deems worthy of the
        court’s attention.

Id. at 1032 (citation omitted).

        In this case, counsel has satisfied those directives. Within her petition

to   withdraw,    counsel   averred   that   she   conducted   a   conscientious

examination of the record, including all available transcripts, pleadings, and

other materials. Following that review, counsel concluded that the present

appeal is wholly frivolous.    Counsel sent Appellant a copy of the Anders

brief and the petition to withdraw, as well as a letter advising Appellant that

he could represent himself or that he could retain private counsel to

represent him.     A copy of that letter was attached to counsel’s petition to

withdraw.

        We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

        in 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

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     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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

     We are satisfied that counsel has met the requirements set forth in

Santiago.   Counsel’s brief sets forth the factual and procedural history of

this case, cites to the record, and refers to an issue that counsel arguably

believes supports the appeal.     Anders Brief at 4-8.     Further, the brief

includes counsel’s conclusion that the appeal is frivolous, and it contains

pertinent case authority and counsel’s reasons for concluding that the appeal

is frivolous. Id. at 7-8. Accordingly, we address the following issue raised

in the Anders brief:

     Whether the appellant’s sentence is manifestly excessive, clearly
     unreasonable and inconsistent with the objectives of the
     Sentencing Code?

Anders Brief at 3.

     In the argument portion of the Anders brief, counsel asserts that the

trial court abused its discretion in sentencing Appellant to a lengthy term of

incarceration given the mitigating factors of this case.   Anders Brief at 6.

Specifically, counsel claims that during Appellant’s sentencing hearing, a

letter from Dr. Hogue of Northshore Neurosciences was presented. Id. at 6.

The letter contained the professional opinion of Dr. Hogue who offered a

medical explanation for Appellant’s behavior.      Id. at 6.    Furthermore,

Appellant apologized to the court, to his family and the victims, and took

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responsibility for his actions.   Id. at 7.    Thus, counsel is purporting to

present a challenge to the discretionary aspects of Appellant’s sentence.

      We note that “[t]he right to appellate review of the discretionary

aspects of a sentence is not absolute.”       Commonwealth v. Zirkle, 107

A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155,

163 (Pa. Super. 2007).

      As we observed 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.
            [708]; (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, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question

is made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

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Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.    Commonwealth v. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

     Herein, the first three requirements of the four-part test are met:

Appellant filed a timely appeal, raised the challenges in a post-sentence

motion, and included in his Anders brief the necessary separate concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

     In his Pa.R.A.P. 2119(f) statement, Appellant asserts that he was

sentenced to serve thirty-six to seventy-two months of incarceration.

Anders Brief at 5. Appellant contends that with an offense gravity score of

ten and a prior record score of four, the standard minimum range for

possession of firearm by a prohibited person is thirty-six to forty-eight

months of incarceration.     Id. at 4.       Appellant acknowledges that his

sentence is within the standard sentencing range.       Id. at 5.      Appellant

argues, however that the sentence violates the sentencing code because,

despite the court sentencing him within the guidelines, the case involves

circumstances where application of the guidelines was unreasonable. Id. at

5. Appellant avers that the sentencing court is required to consider factors

outlined in 42 Pa.C.S. § 9721(b) and failed to do so here. Id. at 5.


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      “[T]his Court has held that an excessive sentence claim-in conjunction

with an assertion that the court failed to consider mitigating factors-raises a

substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2014) (citation omitted).       Because Appellant has presented a

substantial question, we proceed with our analysis.

      Sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest

abuse of discretion.   Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.

Super. 2006). In this context, an abuse of discretion is not shown merely by

an error in judgment.      Id.    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. Id.

      Furthermore, the “[s]entencing court has broad discretion in choosing

the range of permissible confinements which best suits a particular

defendant and the circumstances surrounding his crime.” Commonwealth

v. Boyer, 856 A.2d 149, 153 (Pa. Super. 2004) (quoting Commonwealth

v. Moore, 617 A.2d 8, 12 (1992)).       Discretion is limited, however, by 42

Pa.C.S.§ 9721(b), which provides that a sentencing court must formulate a

sentence individualized to that particular case and that particular defendant.

Id.




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      Section 9721(b) provides:      “[t]he court shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense, as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant ...” Boyer, 856 A.2d at 153 (citing 42

Pa.C.S.A. § 9721(b)). Furthermore,

      [i]n imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigative report, it will be presumed
      that he or she was aware of the relevant information regarding
      the defendant’s character and weighed those considerations
      along with mitigating statutory factors.

Boyer, 856 A.2d at 154.       Additionally, “where a sentence is within the

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

appropriate under the Sentencing Code.” Moury, 992 A.2d at 171.

      Instantly, Appellant’s sentence falls within the strictures of our

sentencing guidelines.   The conviction carried an offense gravity score of

ten, and Appellant had a prior record score of four. As such, the standard

guideline sentence for that offense was forty-eight to sixty months of

incarceration, plus or minus twelve months for aggravating or mitigating

circumstances. 204 Pa.Code 303.16(a). Accordingly, Appellant’s sentence

of thirty-six to seventy-two months was in the mitigated range of the




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sentencing guidelines. He, therefore, must demonstrate that the application

of those guidelines would be clearly unreasonable. 42 Pa.C.S. § 9781(c)(2).

      As noted, Appellant submits that the sentencing court abused its

discretion in sentencing him to such a lengthy period of incarceration given

the mitigating factors of his case.   To this end, Appellant argues that the

sentencing court disregarded evidence regarding a medical explanation for

Appellant’s behavior, the fact that Appellant apologized to the court, to his

family and victims, and took responsibility for his actions. Appellant’s Brief

at 6-7.

      The sentencing court’s statements prior to imposing sentence belie

Appellant’s allegation that the court failed to consider this information.

Despite Appellant’s assertions to the contrary, the sentencing court was

aware of his background. The court heard testimony from Appellant’s father

and from Appellant himself.    N.T., 9/2/15, at 7-9.   Additionally, the court

had the benefit of a presentence investigation report and considered all of

the mitigating information contained therein.     Id. at 10.      In sentencing

Appellant, the trial court presented the following explanation:

            All right. The [c]ourt has considered the Pennsylvania
      Sentencing Code, the presentence report, and the Pennsylvania
      guidelines on sentencing. The [c]ourt has also considered the
      statements of counsel, [Appellant], and the attorney for the
      Commonwealth.

           The [c]ourt has considered [Appellant’s] age, background,
      character, and rehabilitative needs, the nature, circumstances,
      and seriousness of the offense and the protection of the
      community.

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                                       ***

      The [c]ourt will order the following sentence, and I’ll give
      [Appellant] every consideration by giving a sentence from the
      low end of the mitigated range of the sentencing guidelines. He
      is ordered to pay the costs of prosecution. No fine will be
      imposed. He will be ordered incarcerated, a minimum period of
      which will be 36 months, a maximum of which will be 72
      months. [Appellant] will receive credit for time served in the
      amount of six days.

N.T., 9/2/15, at 10-12.

      The court imposed a low-end mitigated range sentence as a result of

Appellant’s conviction. The gist of Appellant’s argument is not that the court

failed to consider the pertinent sentencing factors, but rather that the court

weighed those factors in a manner inconsistent with his wishes. Accordingly,

we conclude that the record supports the sentencing court’s reasoning and

that its decision conforms to the applicable law. The sentence imposed was

at the low end of the mitigated range of the sentencing guidelines, and the

record reflects that the court carefully considered all of the evidence

presented at the sentencing hearing.         As such, we discern no abuse of

discretion, nor can we conclude that the sentencing court arrived at a

manifestly unreasonable decision. Boyer, 856 A.2d at 153.

      Finally, we have independently reviewed the record in order to

determine whether there are any non-frivolous issues present in this case.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having




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concluded that there are no meritorious issues, we grant Appellant’s counsel

permission to withdraw and affirm the judgment of sentence.

     Petition of counsel to withdraw is granted.     Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2016




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