J-S64037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

SHANE ALLEN DIETRICH

                        Appellant                 No. 795 WDA 2014


           Appeal from the Judgment of Sentence April 11, 2014
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0000987-2011


COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

SHANE ALLEN DIETRICH

                        Appellant                 No. 796 WDA 2014


           Appeal from the Judgment of Sentence April 11, 2014
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0003793-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED OCTOBER 24, 2014

     Appellant, Shane Allen Dietrich, appeals from the judgment of

sentence entered in the Erie County Court of Common Pleas, following

revocation of his probation at No. 987 of 2011. Appellant also appeals from

the judgment of sentence entered in the Erie County Court of Common
J-S64037-14


Pleas, following his open guilty plea to burglary at No. 3793 of 2013.1 We

affirm and grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this appeal are as follows.

On June 30, 2011, Appellant entered an open guilty plea to theft by unlawful

taking and criminal trespass at No. 987 of 2011. On August 8, 2011, the

court sentenced Appellant to three (3) years’ probation for the theft by

unlawful taking conviction. The court sentenced Appellant to a concurrent

term of three (3) years’ probation for the criminal trespass conviction.

Appellant did not file a notice of appeal.

        Appellant subsequently violated the terms of his probation by

committing a burglary in November 2013. On February 27, 2014, Appellant

entered an open guilty plea to burglary at No. 3793 of 2013.          With the

benefit of a pre-sentence investigation (“PSI”) report, the court conducted

Appellant’s sentencing hearing on April 11, 2014. At the conclusion of the

hearing, the court sentenced Appellant to three (3) to six (6) years’

imprisonment for the burglary conviction.2 The court also revoked probation

at No. 987 of 2011, re-sentencing Appellant to an aggregate term of one (1)

to two (2) years’ imprisonment. The court ordered the sentence at No. 987
____________________________________________


1
    18 Pa.C.S.A. § 3502.
2
  With a prior record score of “RFEL” and an offense gravity score of seven
(7), the standard range for Appellant’s burglary conviction was thirty-five
(35) to forty-five (45) months. Appellant’s burglary sentence fell within the
standard range.



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of 2011 to run consecutive to the sentence at No. 3793 of 2013. Appellant

did not file post-sentence motions.

      Appellant timely filed notices of appeal at both docket numbers on

Monday, May 12, 2014. That same day, counsel filed statements of intent to

file briefs pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,

18 L.Ed.2d 493 (1967).      On July 29, 2014, this Court consolidated the

appeals sua sponte.

      As a preliminary matter, appellate counsel seeks to withdraw her

representation pursuant to Anders and Commonwealth v. Santiago, 602

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 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 the 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 to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.         Substantial compliance

with these requirements is sufficient.      Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.”   Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.


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2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[3] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that
          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n 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 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.

Id. at 178-79, 978 A.2d at 361.


____________________________________________


3
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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     Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel reviewed the record and concluded the appeal would

be wholly frivolous.    Counsel also supplied Appellant with a copy of the

withdrawal petition, the brief, and a letter explaining Appellant’s right to

proceed pro se or with new privately retained counsel to pursue any

additional arguments Appellant deems worthy of this Court’s consideration.

In her Anders brief, counsel provides a summary of the procedural history

of the case.    Counsel refers to facts in the record that might arguably

support the issue raised on appeal and offers citations to relevant law. The

brief also provides counsel’s reasons for her conclusion that the appeal is

wholly frivolous.      Thus, counsel has substantially complied with the

requirements of Anders and Santiago.

     As Appellant has filed neither a pro se brief nor a counseled brief with

new privately retained counsel, we review this appeal on the basis of the

issue raised in the Anders brief:

        WAS THE SENTENCE IN THIS CASE MANIFESTLY
        EXCESSIVE AND CLEARLY UNREASONABLE AND NOT
        INDIVIDUALIZED AS REQUIRED BY LAW?

(Anders Brief at 1).

     Appellant contends the court failed to consider mitigating factors at

sentencing.    Specifically, Appellant emphasizes his mental health issues,

which require him to take medication. Appellant also claims he quit using

cocaine and marijuana in 2010, he has no history of violence, and he


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supports nine (9) individuals living in his house, including his bedridden

mother and developmentally disabled uncle.                    In light of these facts,

Appellant insists the        court imposed sentences inconsistent 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 Appellant’s rehabilitative

needs.    Appellant concludes the court abused its discretion by imposing a

manifestly excessive and clearly unreasonable sentence.                     Appellant’s

challenge    is   to   the   discretionary     aspects   of    his   sentence.4   See

Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim


____________________________________________


4
  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”     Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
plea was “open” as to sentencing, so he can challenge the discretionary
aspects of his sentence.

To the extent Appellant challenges the sentence imposed following the
revocation of probation at No. 987 of 2011, this Court is generally limited to
determining the validity of the revocation proceeding and the legality of the
judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d
1021 (Pa.Super. 2005).        Notwithstanding the stated scope of review
suggesting only the legality of a sentence is reviewable, an appellant may
also challenge the discretionary aspects of a sentence imposed following
revocation. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).
See also Commonwealth v. Cappellini, 690 A.2d 1220 (Pa.Super. 1997)
(addressing discretionary aspects of sentence imposed following revocation
of probation).



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that sentence is manifestly excessive challenges discretionary aspects of

sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Sierra, supra.   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).

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).5

       When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

____________________________________________


5
  Here, Appellant failed to raise his discretionary aspects claim at the
sentencing hearing or in post-sentence motions. Due to counsel’s petition to
withdraw, however, we proceed with our analysis of Appellant’s issue. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (explaining
Anders requires review of issues otherwise waived on appeal).



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separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

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

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal ‘furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.’”    Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,

174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d

1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).

        The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). 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.” Sierra, supra at 912-13 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).

        A claim that a sentence is manifestly excessive might raise a

substantial question if the appellant’s Rule 2119(f) statement sufficiently


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articulates the manner in which the sentence imposed violates a specific

provision of the Sentencing Code or the norms underlying the sentencing

process.     Mouzon, supra at 435, 812 A.2d at 627.             Nevertheless, “[a]n

allegation that a sentencing court ‘failed to consider’ or ‘did not adequately

consider’ certain factors does not raise a substantial question that the

sentence was inappropriate.” Commonwealth v. Cruz-Centeno, 668 A.2d

536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195

(1996) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super.

1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)).

      Instantly, Appellant’s assertion that the court failed to consider the

mitigating    factors   does   not   raise   a   substantial   question   under   the

circumstances of this case. See Cruz-Centeno, supra. The court had the

benefit of a PSI report.       (See N.T. Sentencing and Probation Revocation

Hearing, 4/11/14, at 6, 22.)           Therefore, we can presume the court

considered the relevant sentencing factors. See Tirado, supra at 366 n.6

(stating where sentencing court had benefit of PSI, law presumes court was

aware of and weighed relevant information regarding defendant’s character

and mitigating factors). The court also imposed a standard range sentence

at No. 3793 of 2013.       Thus, Appellant’s sentence at No. 3793 of 2013 is

presumptively     valid.       See   Cruz-Centeno,       supra    (explaining     that

combination of PSI and standard range sentence, absent more, cannot be

considered excessive or unreasonable). We note the Sentencing Guidelines


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do not apply to the sentence imposed following the revocation of probation

at No. 987 of 2011. See Commonwealth v. Ferguson, 893 A.2d 735, 739

(Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 (2006).

      Moreover, the record belies Appellant’s assertion that the court did not

adequately consider his mental health history and the circumstances of his

family life.   At the sentencing/revocation hearing, Appellant presented

testimony from Yanette Barnes, his mental health case manager.             Ms.

Barnes indicated that Appellant attends outpatient treatment for his various

conditions, but he does not always follow the recommendations of the

healthcare professionals.   Ms. Barnes informed the court that outpatient

treatment will continue to help Appellant, but “it’s all up to him.” (See N.T.

Sentencing and Probation Revocation Hearing at 9.)          Ms. Barnes also

conceded that Appellant’s lack of impulse control is “something [Appellant]

would need to work on in therapy and actively participate.” (Id. at 10).

      The court also received testimony from Christine Cooper, the burglary

victim at No. 3793 of 2013. Ms. Cooper, who is Appellant’s mother-in-law,

denied Appellant’s assertion that he supports the family members living at

his house. Ms. Cooper testified, “[E]verybody in that household all receive

their own stipends of SSI.    It is not [Appellant’s] income that they are

relying on.” (Id. at 13). Regarding Appellant’s mental health, Ms. Cooper

stated that Appellant understood the difference between right and wrong.

Moreover, Ms. Cooper testified that Appellant committed the burglary on a


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date when he knew Ms. Cooper would be out of town for the Thanksgiving

holiday.

      In light of this testimony, the court made the following on-the-record

statement in support of the sentences imposed:

           The starting point for analysis of this case is a mental
           health diagnosis with [Appellant] and psychiatric
           evaluation, which I have, which is complemental with what
           the caseworker said. And there are in the diagnosis some
           significant factors, some of which indicate that [Appellant]
           is a victim of some events beyond his control, and I’ve
           looked at that. I’m trying to determine and navigate to
           what degree we have things that [Appellant] may not be
           responsible for…. But here there’s enough evidence from
           talking to the victim that [Appellant] has the capacity to
           plan, connive, and take advantage of people. So even
           allowing for his mental health [diagnosis]…he still bears
           culpability for much of his conduct and I’m going to hold
           him to account for that.

(Id. at 22-23).     Here, the record indicates the court was aware of the

relevant sentencing considerations and weighed them in a meaningful

fashion.    Based upon the foregoing, we conclude Appellant’s sentences

should remain undisturbed.         Accordingly, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




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