J-S12003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 CARMINE A. MADEJCZYK                     :
                                          :
                     Appellant            :   No. 1524 MDA 2018

        Appeal from the Judgment of Sentence Entered July 18, 2018
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0001377-2018

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 17, 2019

        Carmine A. Madejczyk appeals from the judgment of sentence of fifty-

four to 108 months of incarceration imposed following his guilty plea to

aggravated assault. Appellant’s counsel, Matthew P. Kelly Esquire, has filed

an application to withdraw and a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We affirm the judgment of sentence and grant counsel’s application

to withdraw.

        We glean the following underlying facts from the affidavit of probable

cause. On the evening of March 5, 2018, police responded to “a report of a

male bleeding from the head and yelling.” Affidavit of Probable Cause, 3/6/18,

at 1.    They found Appellant covered in blood shortly before an ambulance

arrived.   Appellant told the police that he had been in an altercation with

another man outside of a nearby soup kitchen, and the man pushed Appellant
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from behind, causing Appellant to fall and hit his head on the sidewalk. Id.

However, Appellant stated that he was not interested in pursuing charges. Id.

       Not long after leaving Appellant, the police were dispatched to the

hospital regarding a report that a stabbing victim there had been in an

altercation with another man outside of the soup kitchen. The victim said that

when he turned his back on the other man, the man plunged a sharp object

into his side near his ribs. Thereafter, the man who had stabbed him was

pushed to the ground by a third man, causing him to hit his head on the

sidewalk.    Id.    Police again approached Appellant, who was in the same

hospital awaiting treatment, and advised him of his rights. Appellant admitted

that he committed the stabbing, but indicated that he did not believe his knife

was “sharp enough to do any damage.” Id.

       Appellant was arrested and charged with aggravated assault and other

related crimes. Appellant entered an open guilty plea on June 1, 2018, and a

presentence investigation was ordered.           On July 18, 2018, Appellant was

sentenced as indicated above. Appellant filed a timely post-sentence motion

on July 25, 2018, which the trial court denied by order entered August 15,

2018.1 Counsel filed a timely notice of appeal on Appellant’s behalf, as well

as a timely court-ordered statement of errors complained of on appeal.

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1In the interim, Appellant, acting pro se, prematurely filed a notice of appeal
and a PCRA petition. Given the petition’s allegations of ineffective assistance
of counsel, counsel filed a motion for the appointment of conflict counsel. The



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       In this Court, Appellant’s counsel filed both an Anders brief and a

petition to withdraw as counsel. Accordingly, the following principles guide

our review of this matter.

              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). By contrast, if counsel’s
       petition and brief satisfy Anders, we will then undertake our own
       review of the appeal to determine if it is wholly frivolous.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted). Our Supreme Court has further clarified counsel’s duties

as follows:

       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
____________________________________________


trial court granted the motion and appointed present counsel to represent
Appellant. This Court ultimately quashed Appellant’s pro se appeal. Order,
10/1/18. The trial court properly took no action on the PCRA petition, as a
petition for PCRA relief may only be filed after direct appeal is concluded.
Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa.Super. 2000).

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        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, supra at 361.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that, while counsel’s filings are sparse, counsel has

substantially complied with the technical requirements set forth above. 2 As

required by Santiago, counsel set forth the case history, referred to an issue

that arguably supports the appeal, stated his conclusion that the appeal is

frivolous, and cited case law which supports that conclusion. See Anders

brief at 4-8. Therefore, we now proceed “‘to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246,

1249 (Pa. Super. 2015) (quoting Santiago, supra at 354 n.5).

        The issue arguably supporting an appeal cited by Appellant’s counsel is

whether the trial court abused its discretion in sentencing Appellant. Anders

brief at 1. In reviewing the question, we bear in mind the following.

        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. 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.

____________________________________________


2   Appellant did not file a response to counsel’s petition.

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              ....

             When imposing 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.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

       An appellant is not entitled to the review of challenges to the
       discretionary aspects of a sentence as of right. Rather, an
       appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction. We determine whether the
       appellant has invoked our jurisdiction by considering the following
       four factors:

              (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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

       Here, Appellant timely filed a notice of appeal after preserving the issue

by filing a motion to modify sentence. The Pa.R.A.P. 2119(f) statement before

us is paltry,3 but in Anders appeals this Court has not found review to be

____________________________________________


3 The statement is as follows in its entirety: “T[hat t]he trial court erred in
sentencing the Appellant to a sentence that was too harsh under the



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prohibited even in the absence of a 2119(f) statement. Commonwealth v.

Zeigler, 112 A.3d 656, 661 (Pa.Super. 2015).           Therefore, we consider

whether a substantial question exists that Appellant’s sentence was not

appropriate.

       In his post-sentence motion, Appellant asked the court to reconsider the

sentence “because he did not understand the sentencing” and felt that it was

“too harsh under the circumstances.” Motion to Modify Sentence, 7/25/18, at

¶ 3.   A bald claim of excessiveness does not raise a substantial question.

Commonwealth v. Giordano, 121 A.3d 998, 1008 (Pa.Super. 2015).

       Furthermore, our review of the record reveals no substantial question

that counsel could have raised had he more carefully crafted the Rule 2119(f)

statement.      The sentencing transcript reveals that the trial court asked

Appellant if there were any corrections to me made to the presentence

investigation report, and hear from both Appellant and his counsel regarding

mitigating factors. N.T. Sentencing, 7/18/18, at 2-3. The court then offered

the following statement regarding its sentencing decision.

       I have reviewed the presentence report and what’s been offered
       here today. Unfortunately the guidelines are rather significant
       given the serious nature of the offense involved; however,
       considering the circumstances of the matter, the young age of
       [Appellant] and his lack of prior criminal history, I will impose a
       sentence that will consider all of those matters that’s going to
____________________________________________


circumstances is a substantial question requiring discretionary review. 42
Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f).” Although our review is not barred,
we expect counsel to make more of an effort than this, especially given that
this is not the first time counsel has been so advised.


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        provide [Appellant] a significant period of time in a State
        Correctional Institution to avail himself of programs and
        opportunities there to hopefully rehabilitate and reform his ways.

               The standard range of the guidelines are 54 to 72 [months].
        I will impose sentence at the low end of that guideline range for
        the reason stated previously but also feel that it’s an appropriate
        sentence given the serious nature of the offense and any impact
        it would have had on the victim.

              ....

               I’ve tried to keep your sentence at the lowest end of the
        guideline range given your age and lack of prior history. Obviously
        you’re very young. You’ll be released hopefully on parole at some
        point in time, so hopefully you are never back in this type of
        situation again.

Id. at 3-5.

        The sentencing court had the benefit of a presentence investigation

report and thus is presumed to have considered all relevant information.

Commonwealth v. Rush, 162 A.3d 530, 545 n.12 (Pa.Super. 2017). The

court crafted its sentence based upon the factors designated in the Sentencing

Code.     See 42 Pa.C.S. § 9721 (calling for confinement consistent with

protection of the public, gravity of the offense and hits impact on the victim,

and the rehabilitative needs of the defendant).       The court did not ignore

mitigating evidence; rather, it imposed a low-end sentence based upon the

mitigating factors. Cf. Commonwealth v. Luketic, 162 A.3d 1149, 1162

(Pa.Super. 2017) (substantial questioned raised by sentencing court’s failure

to consider the defendant’s character and background).




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       Therefore, we agree with counsel that a challenge to the discretionary

aspects of Appellant’s sentence is frivolous. Moreover, our “simple review of

the record to ascertain if there appear on its face to be arguably meritorious

issues that counsel, intentionally or not, missed or misstated[,]” has revealed

no additional issues counsel failed to address.4            Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa.Super. 2018) (en banc). Accordingly, we

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

       Application of Matthew P. Kelly, Esquire, to withdraw as counsel is

granted. Judgment of sentence affirmed.




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4 We have conducted our review mindful of the fact that “upon entry of a guilty
plea, a defendant waives all claims and defenses other than those sounding
in the jurisdiction of the court, the validity of the plea, and what has been
termed the ‘legality’ of the sentence imposed.”                Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). We note that the transcript of
the plea hearing is not included in the certified record. However, its absence
does not alter our conclusion. As Appellant did not challenge the voluntariness
of the plea in the trial court prior to filing his notice of appeal, any such claim
is waived on direct review. See Commonwealth v. Rush, 959 A.2d 945, 949
(Pa.Super. 2008) (“[A] request to withdraw a guilty plea on the grounds that
it was involuntary is one of the claims that must be raised by motion in the
trial court in order to be reviewed on direct appeal.”). Pursuing a waived claim
is frivolous. Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa.Super.
2008). To the extent that Appellant averred in his premature PCRA petition
that his plea was unlawfully induced by counsel, that claim is properly pursued
through the PCRA after Appellant’s judgment of sentence becomes final. See
42 Pa.C.S. § 9543(a)(2)(iii).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/17/2019




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