J-S51040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALFONZO GLENN,                             :
                                               :
                       Appellant               :       No. 597 MDA 2019

        Appeal from the Judgment of Sentence Entered March 14, 2019
               in the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0001453-2017

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 07, 2019

        Alfonzo Glenn (“Glenn”) appeals from the judgment of sentence

imposed following his open guilty plea to aggravated assault. 1 Additionally,

Glenn’s counsel, Matthew P. Kelly, Esquire (“Attorney Kelly”), has filed a

Petition to Withdraw as counsel and an accompanying brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967). We grant Attorney Kelly’s

Petition to Withdraw and affirm Glenn’s judgment of sentence.

        On January 23, 2019, Glenn entered an open guilty plea to aggravated

assault. The trial court sentenced Glenn to a term of 72 to 156 months in

prison, followed by two years of probation. Glenn filed a post-sentence Motion

requesting reconsideration of his sentence, which the trial court denied. Glenn

filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal. Attorney Kelly subsequently
____________________________________________


1   See 18 Pa.C.S.A. § 2702(a)(1).
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filed, with this Court, an Anders brief and a Petition to withdraw as counsel.

Glenn neither filed a pro se brief, nor retained alternate counsel for this

appeal.

     Before addressing Glenn’s issue on appeal, we must determine whether

Attorney Kelly has complied with the dictates of Anders and its progeny in

petitioning to withdraw from representation.       See Commonwealth v.

Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen

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

underlying issues without first passing on the request to withdraw.”).

Pursuant to Anders, when counsel believes that an appeal is frivolous and

wishes to withdraw from representation, he or she must

     (1) petition the court for leave to withdraw stating that after
     making a conscientious examination of the record and
     interviewing the defendant, counsel has determined the appeal
     would be frivolous, (2) file a brief referring to any issues in the
     record of arguable merit, and (3) furnish a copy of the brief to
     defendant and advise him of his right to retain new counsel or to
     raise any additional points that he deems worthy of the court’s
     attention. The determination of whether the appeal is frivolous
     remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation

omitted).

     Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders 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

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      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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      In the instant case, our review of the Anders Brief and the Petition to

Withdraw reveals that Attorney Kelly has substantially complied with each of

the requirements of Anders/Santiago. See Commonwealth v. Wrecks,

934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must

substantially comply with the requirements of Anders).          Attorney Kelly

indicates that he has made a conscientious examination of the record and

determined that an appeal would be frivolous.        Further, Attorney Kelly’s

Anders Brief comports with the requirements set forth by the Supreme Court

of Pennsylvania in Santiago. Finally, Attorney Kelly provided Glenn with a

copy of the Anders Brief, and advised him of his rights to proceed pro se,

retain new counsel, or raise any additional points deemed worthy of the

Court’s attention.   Thus, Attorney Kelly has complied with the procedural

requirements for withdrawing from representation.      We next examine the

record and make an independent determination of whether Glenn’s appeal is,

in fact, wholly frivolous.

      Attorney Kelly presents the following issue, on behalf of Glenn, for our

review: “Whether the trial court abused its discretion in sentencing [Glenn]

to the high-end of the standard range of the sentencing guidelines and in

failing to consider [Glenn’s] attempts at rehabilitation[?]” Anders Brief at 1.

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      This issue challenges the discretionary aspects of Glenn’s sentence. “A

challenge to the discretionary aspects of sentencing is not automatically

reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,

815 (Pa. Super. 2017).      Prior to reaching the merits of a discretionary

sentencing issue,

      [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).

Grays, 167 A.3d at 815-16 (citation omitted).

      Glenn filed a timely Notice of Appeal, and Attorney Kelly included a

2119(f) Statement within the Anders Brief, and has advanced a plausible

argument that the trial court failed to consider evidence that Glenn’s

substance abuse problem is under control; he incurred no misconducts while

incarcerated; and that he accepted responsibility for his crimes. See Anders

Brief at 4; see also Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.

2012) (stating that an appellant raises a substantial question where he alleges

that “the trial court failed to consider relevant sentencing criteria, including

the protection of the public, the gravity of the underlying offense and the

rehabilitative needs of Appellant.”).    Accordingly, we will address Glenn’s

discretionary sentencing claim.




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      Glenn argues that his sentence is harsh and excessive because the trial

court sentenced him at the high end of the standard range of the sentencing

guidelines and did not consider his attempts at rehabilitation. Anders Brief

at 6-8.

      Our standard of review is well settled:

            When imposing a sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should refer
      to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.      It must be
      demonstrated that the court considered the statutory factors
      enunciated for determination of sentencing alternatives, and the
      sentencing guidelines. Additionally, the court must impose a
      sentence which 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 the community, and the rehabilitative needs of the
      defendant.

Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)

(internal citations and quotation marks omitted).      “[W]here 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).

      Initially, the trial court had the benefit of a pre-sentence investigation

report (“PSI”), which the court expressly stated it had considered prior to

imposing sentence.    See N.T., 3/14/19, at 5.      “[W]here the trial court is

informed by a [PSI], it is presumed that the court is aware of all appropriate

sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.”         Commonwealth v.

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Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (quotation marks and

citations omitted).

      Moreover, the record reflects that the trial court considered the

sentencing guidelines, Glenn’s criminal record, protection of the public, the

gravity of Glenn’s offense as it relates to the impact on the life of the victim

and the community, and Glenn’s rehabilitative needs. See Trial Court Opinion,

5/21/19, at 7-8.      Particularly, the trial court noted the severity of Glenn’s

actions:

      After considering the record in this case, we are not persuaded
      [that Glenn] comprehends the gravity of his offense. The victim
      testified at the sentencing hearing that, when assaulted and
      strangled [by Glenn], [Glenn] placed a bag over her head and
      attempted to suffocate her. She related that, prior to passing out,
      “I said, God, forgive me for my sins. I really thought I was going
      to die.” She stated this occurred in the presence of her four-year
      old son[,] and she described the disturbing after-effects of the
      crime on them. She also noted that two years later they both
      remain in counseling as a result of the crime.”

Id. at 7 (citations to record and emphasis omitted).       Thus, the trial court

properly considered all of the statutory factors before sentencing Glenn. See

McClendon, supra. Additionally, the sentence was within the standard range

of the guidelines. See Moury, supra. Accordingly, we conclude that the trial

court’s sentence was not improperly excessive, and Glenn’s discretionary

sentencing challenge is wholly frivolous.

      Finally, our independent review of the record discloses no additional

non-frivolous issues that could be raised on appeal.        We therefore grant

Attorney Kelly’s Petition, and affirm Glenn’s judgment of sentence.

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     Petition to Withdraw granted. Judgment of sentence affirmed.

     President Judge Panella joins the memorandum.

     P.J.E. Gantman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/07/2019




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