J-S77029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
RONALD DRUMMOND                                :
                                               :
                Appellant                      :   No. 1154 MDA 2017

          Appeal from the Judgment of Sentence January 18, 2017
    In the Court of Common Pleas of Dauphin County Criminal Division at
                      No(s): CP-22-CR-0005580-2015


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

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 19, 2018

       Ronald Drummond appeals, nunc pro tunc, from his judgment of

sentence, entered in the Court of Common Pleas of Dauphin County, after a

jury found him guilty of driving under the influence with a minor occupant,

endangering the welfare of a child and operating without eye protection.

Counsel has petitioned this Court to withdraw from his representation of

Drummond pursuant to Anders and Santiago.1                Upon review, we affirm

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

       On November 3, 2016, Drummond was convicted by a jury of the above

offenses. On January 18, 2017, the court sentenced him to an aggregate term



____________________________________________


1 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).


____________________________________
* Former Justice specially assigned to the Superior Court.
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of 4 to 18 months’ incarceration, plus fines and costs. Drummond filed an

untimely pro se motion to modify sentence, upon receipt of which the trial

court appointed counsel and directed him to file a petition under the Post

Conviction Relief Act (PCRA).2           On April 25, 2017, the court reinstated

Drummond’s post-sentence and appellate rights. Drummond filed a nunc pro

tunc motion to modify sentence on May 4, 2017, which the court denied on

July 10, 2017 following oral argument. This timely appeal follows, in which

counsel has sought permission to withdraw from his representation of

Drummond.

        In order to withdraw pursuant to Anders, counsel must: (1) petition

the Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; (2)

file a brief referring to anything in the record that might arguably support an

appeal; and (3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief raising any additional

points that the appellant deems worthy of review.            Commonwealth v.

Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), the Pennsylvania Supreme Court held

that, in order to withdraw under Anders, counsel must also state his reasons

for concluding his client’s appeal is frivolous.



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2   42 Pa.C.S.A. §§ 9541-9546.

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       Instantly, counsel’s petition states that he has made an examination of

the record and concluded the appeal is wholly frivolous. Counsel indicates

that he supplied Drummond with a copy of the brief and a letter explaining his

right to proceed pro se, or with privately-retained counsel, and to raise any

other issues he believes might have merit.3 Counsel has also submitted a

brief, setting out the single issue raised by Drummond and, pursuant to the

dictates of Santiago, explains in his petition to withdraw why he believes the

appeal to be frivolous.       Thus, counsel has substantially complied with the

requirements for withdrawal.

       Counsel having satisfied the procedural requirements for withdrawal,

this Court must conduct its own review of the proceedings and render an

independent judgment as to whether the appeal is, in fact, wholly frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

       Drummond claims that his sentence is excessive given his particular

circumstances.       This raises a challenge to the discretionary aspects of

sentencing. Such a claim does not entitle an appellant to review as a matter

of right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015).

Rather, before this Court can address such a 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:
____________________________________________


3Drummond has not submitted any additional or supplemental filings to this
Court.

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      (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.

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

      Here, Drummond filed a post-sentence motion to modify sentence, nunc

pro tunc, filed a timely appeal, and includes in his brief a statement of reasons

in support of allowance of appeal pursuant to Pa.R.A.P. 2119(f). Drummond

having complied with the procedural requirements, we must now determine if

he has raised a substantial question for our review.

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists “only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015), quoting

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal

citations omitted).

      In his Rule 2119(f) statement, Drummond asserts that his sentence was

excessive in light of the fact that, while incarcerated, he completed his alcohol

and safety training; he did not have a prior record; and prior to his

incarceration he had been employed by the same employer for over 10 years.

In sum, Drummond alleges that the trial court’s sentence did not “reflect the


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requisite considerations for [his] rehabilitation” and did not properly consider

his character, background and history. Brief of Appellant, at 10. Drummond

is not entitled to review.

      “[O]rdinarily, a claim that the sentencing court failed to consider or

accord proper weight to a specific sentencing factor does not raise a

substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996–97 (Pa.

Super. 2001) (internal citation omitted) (emphasis in original).

      There is ample precedent to support a determination that [a claim
      that the trial court failed to consider an appellant’s rehabilitative
      needs] fails to raise a substantial question[.]                   See
      Commonwealth v. Cannon, 954 A.2d 1222, 1228–29 (Pa.
      Super. 2008), appeal denied, [] 964 A.2d 893 ([Pa.] 2009) (claim
      that the trial court failed to consider the defendant’s rehabilitative
      needs, age, and educational background did not present a
      substantial question); Commonwealth v. Coolbaugh, 770 A.2d
      788, 793 (Pa. Super. 2001) (citing Commonwealth v. Mobley,
      [] 581 A.2d 949, 952 ([Pa. Super.] 1990)) (claim that sentence
      failed to take into consideration the defendant’s rehabilitative
      needs and was manifestly excessive did not raise a substantial
      question where sentence was within statutory guidelines and
      within sentencing guidelines); Commonwealth v. Coss, 695
      A.2d 831, 833 (Pa. Super. 1997) (when the sentence imposed falls
      within the statutory limits, an appellant’s claim that a sentence is
      manifestly excessive fails to raise a substantial question);
      Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super.
      1997) (a claim that a trial court failed to appropriately consider an
      appellant’s rehabilitative needs does not present a substantial
      question); Commonwealth v. Lawson, [] 650 A.2d 876, 881
      ([Pa. Super.] 1994) (claim of error for failing to consider
      rehabilitative needs does not present substantial question).




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Commonwealth v. Griffin, 65 A.3d 932, 936–37 (Pa. Super. 2013).

Accordingly, we conclude that Drummond has failed to present a substantial

question for our review.4

       Judgment of sentence affirmed. Petition to withdraw granted.

       President Judge Emeritus Bender joins the Memorandum.

       President Judge Emeritus Stevens concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 01/19/2018




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4 Even if we were to review the merits of Drummond’s claim, he would be
entitled to no relief. The trial court was in possession of a presentence report,
and Drummond’s sentences were both on the lower end of the standard range
of the sentencing guidelines. Where the sentencing court imposes a standard-
range sentence with the benefit of a pre-sentence report, we will not consider
the sentence excessive. Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010). Under those circumstances, we assume the sentencing court
“was aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Accordingly,
Drummond’s claim is meritless.

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