J-S56040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LAWRENCE EDWIN CREESE, SR.,

                            Appellant                No. 225 MDA 2016


          Appeal from the Judgment of Sentence December 21, 2015
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0001064-2013
                           CP-67-CR-0004360-2013
                           CP-67-CR-0004367-2013
                           CP-67-CR-0004379-2013

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JULY 13, 2016

       Appellant Lawrence Edwin Creese, Sr., appeals from the judgment of

sentence entered in the Court of Common Pleas of York County on December

21, 2015, at which time he received an aggregate sentence of five (5) years

to fourteen (14) years in prison following his open guilty plea to forty counts

including burglary, criminal trespass, theft, criminal mischief, criminal

conspiracy and receiving stolen properly docketed to four, different criminal

informations.1      In addition, Appellant's counsel has filed a petition to

withdraw his representation and a brief pursuant to Anders v. California,
____________________________________________


1
 No. CP-67-CR-0001064-2013; No. CP-67-CR-0004360-2013; No. CP-67-
CR-0004367-2013; No. CP-67-CR-0004379-2013, respectively.



*Former Justice specially assigned to the Superior Court.
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386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth

v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After a careful review, we

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

sentence.

       Appellant and several accomplices2 broke into storage-shed businesses

located in Southern York County over a period of about two and one-half

months.     Appellant and his cohorts would take items from the sheds and

transport them to Baltimore, Maryland, where those items were sold. Seven

businesses were affected, and over 31 victims lost property ranging in an

amount of $15.00 for individuals whose locks were broken to $12,000.00 for

those who had a number of items stolen from their storage units.          One

business was an antique dealer whose items were not readily available on

the market and were never recovered. The amount of restitution for the

stolen property was in excess of $335,000.00.

       Trial was scheduled to begin on November 2, 2015, but at that time

Appellant instead pled guilty to a majority of the charges that had been

brought against him.         On December 21, 2015, the trial court sentenced

Appellant, and on December 31, 2015, Appellant filed a post sentence

motion wherein he requested the following relief:


____________________________________________


2
 Three individuals including Appellant were originally involved in the crimes;
however, one had passed away before the time of Appellant’s sentencing.



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     a.    sentence     [Appellant]     pursuant      to     probation’s
     recommendation of all sentences concurrent, or an aggregate of
     one and one half (1 ½) to five (5) years; and,
     b.    sentence [Appellant] with a recommendation to serve his
     sentence in an SCI which will treat [Appellant] for his addictions;
     c.    in the alternative to (a) above, sentence [Appellant] to a
     lower minimum of one and one half (1 ½) years, with a longer
     maximum.

See Post Sentence Motions, filed 12/31/15, at ¶ 7.

     The   trial   court   denied   Appellant’s   motion   to   reconsider/modify

sentence on January 7, 2016, and Appellant filed a timely notice of appeal

on February 4, 2016.       The trial court filed its Order pursuant to Pa.R.A.P.

1925(b), and on February 17, 2016, counsel filed his Statement of Matters

Complained of on Appeal wherein he indicated his intent to file an Anders

brief with this Court pursuant to Pa.R.A.P. 1925(c)(4).         As noted above,

counsel filed a petition to withdraw as counsel and an Anders/Santiago

brief with this Court on May 10, 2016.

     Before reviewing the merits of the underlying issue Appellant presents,

we first consider counsel’s petition to withdraw.           Commonwealth v.

Orellana, 86 A.3d 877, 879 (Pa.Super. 2014).

     When presented with an Anders brief, this Court may not review
     the merits of the underlying issues without first passing on the
     request to withdraw. Commonwealth v. Goodwin, 928 A.2d
     287, 290 (Pa.Super. 2007) (en banc). Before counsel is
     permitted to withdraw, he or she must meet the following
     requirements:
         First, counsel must petition the court for leave to
         withdraw and state that after making a conscientious
         examination of the record, he has determined that the
         appeal is frivolous; second, he must file a brief
         referring to any issues in the record of arguable merit;

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             and third, he must furnish a copy of the brief to the
             defendant and advise him of his right to retain new
             counsel or to himself raise any additional points he
             deems worthy of the Superior Court's attention.
        Santiago, 602 Pa. at 178–79, 978 A.2d at 361.2
        FN2. The requirements set forth in Santiago apply to cases
        where the briefing notice was issued after August 25, 2009, the
        date the Santiago opinion was filed. As the briefing notice in
        this case was issued after Santiago was filed, its requirements
        are applicable here. Commonwealth v. Martuscelli, 54 A.3d
        940, 947 (Pa.Super. 2012).

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183-84 (Pa.Super.

2016).

        Herein, we have reviewed counsel’s petition to withdraw as counsel

and his accompanying correspondence which he served upon Appellant. In

the letter, counsel indicated he was enclosing the petition to withdraw along

with his Anders brief and explained that if Appellant had any issues he

wished to pursue before this Court, he must do so immediately either pro se

or with the assistance of new counsel.3 We also have examined the Anders

brief counsel prepared.         These documents satisfy us that counsel has

complied with all of the foregoing requirements; therefore, we grant

counsel’s petition to withdraw and next analyze the issue counsel presented

in his Anders brief to make an independent judgment as to whether the

appeal is, in fact, wholly frivolous.          See Bynum-Hamilton, supra (citing

Santiago, supra). Specifically, Appellant questions:
____________________________________________


3
    Appellant has not responded to the application to withdraw as counsel.




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      Whether the honorable trial court erred in sentencing [A]ppellant
      to an aggregate term of five (5) to fourteen (14) years?

Anders-McClendon Brief at 4.

      Appellant asserts that while all of the sentences the trial court imposed

were within the sentencing guidelines and, thus, legal sentences, they were

at the top of the standard range. Anders-McClendon Brief at 10.

Appellant’s issue challenges the discretionary aspects of his sentence, and it

is well-established that a claim a sentence is excessive is cognizable before

this Court. See Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super.

2002) (stating claim that sentence is manifestly excessive challenges

discretionary   aspects   of   sentencing).   However,   challenges    to   the

discretionary aspects of sentencing do not entitle an appellant to an appeal

as of right. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).

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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

      Herein, Appellant filed a timely notice of appeal and challenged his

sentence in his motion to modify/reconsider sentence. Although counsel has


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not included the requisite Pa.R.A.P. 2119(f) statement in his Anders brief,

“[w]here counsel files an Anders brief, this Court has reviewed the matter

even absent a separate Pa.R.A.P. 2119(f) statement. Hence, we do not

consider counsel's failure to submit a Rule 2119(f) statement as precluding

review of whether Appellant's issue is frivolous.” Commonwealth v.

Zeigler, 112 A.3d 656, 661 (Pa.Super. 2015) (citations omitted). Also, “a

determination of what constitutes a substantial question must be evaluated

on a case-by-case basis and such question exists only when an appellant

advances a colorable argument that the sentencing judge's actions were

either inconsistent with a specific provision of the Sentencing Code or

contrary to the fundamental norms underlying the sentencing process.”

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (2016) citing

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011). A bald

allegation of excessiveness does not present a substantial question.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

     Instantly, the trial court heard statements from Appellant, his

grandmother and his fiancé and referenced the pre-sentence investigation

report (PSI) prior to imposing Appellant’s sentence.      N.T. Sentencing,

12/21/15, at 11-12.   Noting Appellant had a prior record score of five (5)

and that the restitution owed to the victims exceeded $335,000, the trial

court indicated it was “somewhat surprised” by the recommendation arising

from the PSI and indicated it could not accept such recommendation as an


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appropriate sentence in light of Appellant’s significant crimes.    Id. at 12.4

Thus, the trial court sentenced Appellant such that the charges from each

case number ran concurrently with one another but consecutively to each of

the sentences imposed in the four, separate matters. In addition, the trial

court stated with specificity its reasons for imposing Appellant’s sentence.

Id. at 11-13.

              Long standing precedent of this Court recognizes that 42
       Pa.C.S.A. section 9721 affords the sentencing court discretion to
       impose its sentence concurrently or consecutively to other
       sentences being imposed at the same time or to sentences
       already imposed. Commonwealth v. Graham, 541 Pa. 173,
       184, 661 A.2d 1367, 1373 (1995). .... Any challenge to the
       exercise of this discretion ordinarily does not raise a substantial
       question. Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2
       (Pa.Super. 2005); see also Commonwealth v. Hoag, 665
       A.2d 1212, 1214 (Pa.Super. 1995) (explaining that a defendant
       is not entitled to a ‘volume discount’ for his or her crimes).

Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa.Super.

2010).

       The trial court had the discretion to sentence Appellant consecutively,

and Appellant does not otherwise challenge the legality of his aggregate

sentence. Indeed, Appellant concedes the sentence imposed complies with

the Sentencing Guidelines. Anders Brief at 10. Appellant’s bare assertion

____________________________________________


4
  The trial court stressed that the recommendation indicated that Appellant
was eligible for an IP sentence and that all counts should run concurrently to
one another, although the recommendation failed to specify whether “that
also included for each particular case to run concurrent with one another.
Id. at 12.



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his sentence was excessive, without more, does not raise a substantial

question.   Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010).

Accordingly, we grant counsel's petition to withdraw and affirm Appellant’s

judgment of sentence.

     Petition to withdraw granted; Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




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