J-S68016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

BRIAN SCOTT ELLIS JR.

                      Appellant               No. 1846 WDA 2015


     Appeal from the Judgment of Sentence dated October 20, 2015
              In the Court of Common Pleas of Erie County
         Criminal Division at No(s): CP-25-CR-0000649-2015

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

BRIAN ELLIS

                      Appellant               No. 1847 WDA 2015


     Appeal from the Judgment of Sentence dated October 20, 2015
              In the Court of Common Pleas of Erie County
         Criminal Division at No(s): CP-25-CR-0000651-2015

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

BRIAN ELLIS

                      Appellant               No. 1848 WDA 2015


     Appeal from the Judgment of Sentence dated October 20, 2015
              In the Court of Common Pleas of Erie County
         Criminal Division at No(s): CP-25-CR-0000653-2015
J-S68016-16




COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

BRIAN ELLIS

                      Appellant               No. 1849 WDA 2015


     Appeal from the Judgment of Sentence dated October 20, 2015
              In the Court of Common Pleas of Erie County
         Criminal Division at No(s): CP-25-CR-0000693-2015

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

BRIAN SCOTT ELLIS JR.

                      Appellant               No. 1850 WDA 2015


     Appeal from the Judgment of Sentence dated October 20, 2015
              In the Court of Common Pleas of Erie County
         Criminal Division at No(s): CP-25-CR-0000758-2015

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

BRIAN SCOTT ELLIS JR.

                      Appellant               No. 1851 WDA 2015


     Appeal from the Judgment of Sentence dated October 23, 2015
              In the Court of Common Pleas of Erie County
         Criminal Division at No(s): CP-25-CR-0000760-2015


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J-S68016-16




COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

BRIAN ELLIS

                            Appellant                 No. 1852 WDA 2015


        Appeal from the Judgment of Sentence dated October 20, 2015
                 In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0000767-2015

BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                         FILED NOVEMBER 14, 2016

        Appellant, Brian Scott Ellis, Jr., appeals from the judgment of sentence

of 7-21 years’ incarceration, which was imposed after he pleaded guilty to

criminal trespass, theft by unlawful taking, burglary, criminal conspiracy to

commit burglary, and receiving stolen property.1             With this appeal,

Appellant’s counsel has filed a petition to withdraw and an Anders2 brief,

stating that the appeal is wholly frivolous.     After careful review, we affirm

and grant counsel’s petition to withdraw.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 18 Pa.C.S. § 3503(a)(1)(i), 18 Pa.C.S. § 3921(a), 18 Pa.C.S. § 3502(a)(2),
18 Pa.C.S. § 903(c), 18 Pa.C.S. § 3925(a), respectively.
2
    Anders v. California, 386 U.S. 738 (1967).



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       In August and November 2014, Appellant entered two private

residences in Erie and stole items from each house that were valued at

between $2,500 and $3,000. N.T., 9/8/15, at 11, 14; N.T. 10/20/15, at 25,

27. Later in November, he conspired with two other individuals to burglarize

and steal items from a third house; the stolen items from this house were

valued at $12,800. N.T., 9/8/15, at 13; N.T. 10/20/15, at 26. He entered

two more houses in December; the stolen items from one of these houses

were valued at $3,239.40. N.T., 9/8/15, at 12, 15; N.T. 10/20/15, at 25.3

Appellant entered another house in January 2015 and stole property there

that was valued at between $500 and $1,000. N.T., 9/8/15, at 16-17; N.T.,

10/20/15, at 27. Also in December, he received property that he knew was

likely stolen. N.T., 9/8/15, at 16.4

       On September 8, 2015, Appellant appeared before the trial court and

entered a guilty plea to each of these charges. On October 20, 2015, the

trial court held a sentencing hearing, during which Appellant’s trial counsel

explained, by way of mitigation, that, although Appellant was only 20 years

old, he already had “a very pervasive heroin addiction.” N.T., 10/20/15, at

10.   Appellant’s sister confirmed Appellant’s long history of drug addiction

____________________________________________


3
  The value of the stolen items from the second house was not entered on
the record. N.T., 10/20/15, at 27.
4
  The total value of the stolen property that Appellant received was not
entered on the record. N.T., 10/20/15, at 27.



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and explained that members of their entire family including their parents,

have battled addiction.       Id. at 12-16.      Appellant’s sister added that their

mother “is on her death bed” and that their grandparents are elderly and

have always tried to help Appellant and her. Id. at 13, 16.

        One victim provided impact testimony, stating that “[s]ince [she]

live[s] alone it was all the more devastating” to have her home burglarized,

and that Appellant stole “precious family heirlooms that [she] can never

replace coming from [her] great-grandmother.” N.T., 10/20/15, at 6. This

victim said she felt violated and constantly thought about how anybody

could break into her home; her sense of safety had been compromised. Id.

at 7. During her testimony, she repeatedly asked the trial court to impose

the maximum sentence allowable.

        At the end of the sentencing hearing, the trial court imposed an

aggregate sentence of 9-23 years’ incarceration. The trial court explained

its reasoning for imposing this sentence on the record, as follows:

        In this case I’ve done the following:      I’ve considered the
        Pennsylvania Sentencing Code and its various factors. I’ve got
        the benefit of a presentence report. I have a victim impact
        statement. I have letters from [Appellant] and accompanying
        documents, and I’ve talked to the parties here today as well as
        the family, and the one victim spoke.

        I’ve already spoke at length about my view of burglary.[5] It
        literally can destroy communities. And [Appellant] here is part
____________________________________________


5
    Earlier during the sentencing hearing, the trial court had stated:

(Footnote Continued Next Page)


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      of a sophisticated ring that was stealing from houses in a
      planned and calculated manner for his and other people’s
      purposes to get money for drugs. Heedless then, although not
      now, of the consequences here. This sentence is going to hurt
      his family, but it’s required.

      The balance here on this sentence is not to give [Appellant] a
      sentence so long that he never gets out of prison.         The
      Guidelines probably allow that.    Nevertheless, a substantial
      sentence is required and there is no bargain discount for doing
      multiple burglaries.

N.T., 10/20/16, at 30-31.          On October 23, 2015, the court filed a written

order correcting the sentence on two counts, resulting in a final aggregate

sentence of 7-21 years’ incarceration.

      On November 23, 2015, Appellant filed this timely direct appeal. On

December 17, 2015, Appellant’s trial counsel, Attorney Horton, filed a

“Statement of Intent to File an Anders Brief.” On December 18, 2015, the

trial court entered an order stating that, in light of Attorney Horton’s

Statement of Intent to File an Anders Brief, “there are no non-frivolous

issues for appeal” and “no Opinion is necessary.”          On February 1, 2016,

                       _______________________
(Footnote Continued)

      [W]hen [people] find out they have been burglarized, they will
      have a monetary loss, sure. Sometimes they have insurance.
      But beyond that, you violate their sense of security. . . . And
      that upsets them.      A burglary can upset a neighborhood.
      Enough burglaries on a block can upset whole parts of the
      community. People move. They no longer sleep at night. They
      sometimes buy burglary alarms.       Far beyond the property
      damage, far beyond the property damage, every burglary . . .
      involves the destruction of a community.

N.T., 10/20/15, at 7-8.



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J-S68016-16


Attorney Horton filed a petition for leave to withdraw as counsel.              On

February 2, 2016, this Court granted Attorney Horton leave to withdraw and

appointed new appellate counsel, Attorney Merski. Order, 2/2/16.

      Attorney Merski filed an Anders Brief on June 13, 2016, in which she

presented the following issue:

      Whether the Appellant’s sentence is manifestly excessive, clearly
      unreasonable and inconsistent with the objectives of the
      Sentencing Code?


Anders Brief, at 3.        On the same day, Attorney Merski sent a letter to

Appellant, informing him that she intended to file a petition for leave to

withdraw.    She filed her petition to withdraw on June 22, 2016, and

Appellant has not filed a pro se response to that petition. On June 23, 2016,

the Commonwealth sent a letter to this Court stating that it did not intend to

file a responsive brief.

      “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. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (internal citation omitted).        An Anders brief shall comply with the

requirements    set   forth    by   the   Supreme   Court   of   Pennsylvania   in

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

      [W]e hold that 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

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      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 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

meet the following obligations to his or her client:

      Counsel must also provide a copy of the Anders brief to his
      client. Attending the brief must be a letter that advises the
      client of his right to: (1) retain new counsel to pursue the
      appeal; (2) proceed pro se on appeal; or (3) raise any points
      that the appellant deems worthy of the court[’]s attention in the
      Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).       “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”       Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting

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

“this Court must conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnotes and citations omitted).




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      In this appeal, we observe that Attorney Merski’s June 13, 2016

correspondence to Appellant provided a copy of the Anders Brief to

Appellant and advised Appellant of his right either to retain new counsel or

to proceed pro se on appeal to raise any points he deems worthy of the

court’s attention. Further, the Anders Brief complies with prevailing law in

that counsel has provided a procedural and factual summary of the case with

references to the record. Counsel additionally advances relevant portions of

the record that could arguably support Appellant’s claims on appeal.

Ultimately, counsel cites her reasons and conclusion that Appellant’s “case

presents no non-frivolous issues for review.”       Anders Brief, at 12.      We

therefore   conclude   that   counsel’s   Anders    brief   complies   with   the

requirements set forth in Santiago. As a result, we proceed to conduct an

independent review to ascertain if the appeal is indeed wholly frivolous.

      We recognize, as did counsel, that “Pennsylvania law makes clear that

by entering a guilty plea, the defendant waives his right to challenge on

direct appeal all non[-]jurisdictional defects except the legality of the

sentence and the validity of the plea.”      Commonwealth v. Lincoln, 72

A.3d 606, 609 (Pa. Super. 2013) (internal citation omitted), appeal denied,

87 A.3d 319 (Pa. 2014); see also Anders Brief, at 6.          Appellant has not

challenged the validity of his guilty plea, and the oral colloquy conducted by

the trial court at the time of Appellant’s plea was sufficient to assure that the

plea was properly made. See N.T., 9/8/15, at 3-17.


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     Appellant challenges only a discretionary aspect of his sentence — its

length. “Challenges to the discretionary aspects of sentencing do not entitle

an appellant to an appeal as of right.” Commonwealth v. Glass, 50 A.3d

720, 726 (Pa. Super. 2012). Instead, this Court has set forth an analytical

framework under which we determine whether we may exercise our

discretion to hear such an appeal:

     Before we reach the merits of this issue, we must engage in a
     four part analysis to determine: (1) whether the appeal is
     timely; (2) whether Appellant preserved his issue; (3) whether
     Appellant's brief includes a concise statement of the reasons
     relied upon for allowance of appeal with respect to the
     discretionary aspects of sentence; and (4) whether the concise
     statement raises a substantial question that the sentence is
     appropriate under the sentencing code. . . . [I]f the appeal
     satisfies each of these four requirements, we will then proceed to
     decide the substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042–1043 (Pa. Super. 2014),

appeal denied, 109 A.3d 678 (Pa. 2015).         The determination of what

constitutes a substantial question must be evaluated on a case-by-case

basis. Glass, 50 A.3d at 727.

     In the current case, Appellant filed a timely notice of appeal and

properly preserved this issue in his post-sentence motion. Additionally, the

Anders brief contains a concise statement of the reasons for which he seeks

allowance of an appeal, in compliance with Rule 2119(f) of the Rules of

Appellate Procedure. See Anders Brief, at 5-9. The Rule 2119(f) statement

sets forth the claim that the sentencing court sentenced within the

guidelines but failed to consider the factors set forth in 42 Pa.C.S. §

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9721(b).    Section 9721(b) requires the sentencing court to “follow the

general principle that the sentence imposed should call for confinement that

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 on the community, and the

rehabilitative needs of the defendant.”       Appellant’s argument therefore

raises a substantial question.    See Commonwealth v. Buterbaugh, 91

A.3d 1247, 1266 (Pa. Super. 2014) ( “[a]rguments that the sentencing court

failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question”; quotations and citation omitted), appeal denied, 104

A.3d 1 (Pa. 2014).    Hence, we will consider the substantive merits of his

sentencing claim.

      Our standard of review is as follows:

      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.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014),

reargument denied (2015), appeal denied, 117 A.3d 297 (Pa. 2015)

(citation omitted).    “A sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statute in question, but the record as a whole must reflect the sentencing




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court's consideration of the facts of the crime and character of the offender.”

Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012).

       As the record demonstrates, prior to imposing sentence, the trial court

explained that Appellant was “part of a sophisticated ring that was stealing

from houses in a planned and calculated manner,” N.T., 10/20/15, at 31.6

The court therefore clearly considered the need to protect the public, the

gravity of the offenses, and the specific facts of Appellant’s crimes. See 42

Pa.C.S. § 9721(b); Schutzues, 54 A.3d at 96.

       The trial court also stated that it evaluated the victim impact

statement and victim testimony during the sentencing hearing.             N.T.,

10/20/15, at 30-31. The court stated in this regard that burglary “literally

can destroy communities.” Id. at 31. The trial court therefore kept in mind

the impact on the victim and the community. See 42 Pa.C.S. § 9721(b).

       Finally, the trial court considered the testimony of Appellant’s sister,

N.T., 10/20/15, at 31, who attested to his rehabilitative needs, id. at 12-17.

The trial court therefore considered this factor. See 42 Pa.C.S. § 9721(b).

       Accordingly, the trial court properly reviewed all of the requisite

factors and did not abuse its discretion when imposing Appellant’s sentence.



____________________________________________


6
   Because Appellant pleaded guilty, no additional details about the
“sophisticated burglary ring” were entered on the record, but the charges
made clear that he burglarized homes as part of a conspiracy with others.



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Consequently,   Appellant’s   sentence   is    not   manifestly   excessive   or

unreasonable.

      Based on the foregoing, we agree with appellate counsel that the

sentencing issue raised by Appellant lacks merit.        In addition, we have

reviewed the certified record consistent with Flowers, 113 A.3d at 1250,

and have discovered no additional arguably meritorious issues. Accordingly,

we grant appellate counsel’s petition to withdraw and affirm the trial court’s

judgment of sentence.

      Judgment of sentence affirmed.          Petition to withdraw as counsel

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2016




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