J-S72029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                  v.                            :
                                                :
                                                :
    SONYA LOUISE WINTERS                        :
                                                :
                         Appellant              :   No. 974 MDA 2018

              Appeal from the Judgment of Sentence May 15, 2018
     In the Court of Common Pleas of Lycoming County Criminal Division at
                        No(s): CP-41-CR-0000266-2018


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.:                      FILED: JANUARY 11, 2019

       Sonya Louise Winters (“Appellant”) appeals from the judgment of

sentence entered after she pled guilty to one count of delivery of a controlled

substance.1 In addition, counsel has filed a petition to withdraw and a brief

pursuant     to        Anders   v.   California,    386   U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 209).2 We permit counsel

to withdraw and affirm the judgment of sentence.

       The record reveals that, at 1:43 p.m. on January 18, 2018, Appellant

delivered approximately one and one-half grams of cocaine to a confidential

informant in the Loyalsock Township K-Mart parking lot, pursuant to a

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1   35 P.S. § 780-113(a)(30).

2The Commonwealth chose not to file a brief. Letter to Superior Court Deputy
Prothonotary, 9/27/18.
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controlled buy supervised by State Police Trooper Tyler Morse. Affidavit of

Probable Cause, 1/30/18, at 5–6. In a criminal complaint filed at CP-41-CR-

0000266-2018, the Commonwealth charged Appellant with two counts of

delivery of a controlled substance (cocaine), one count of criminal use of

communication facility, one count of possession of a controlled substance, and

one count of driving without a license. Complaint, 1/30/18, at 2–4.

       Pursuant to a negotiated plea agreement, Appellant pled guilty to one

count of delivery of a controlled substance. Guilty Plea, 3/5/18. The trial

court sentenced Appellant to incarceration for a term of nine months to forty-

eight months. N.T. Sentencing, 5/15/18, at 16. Appellant was eligible for the

Recidivism Risk Reduction Incentive (RRRI)3 at six months and twenty-two

days. Id. Appellant filed a timely motion for reconsideration of sentence on

May 25, 2018, which the trial court denied on June 8, 2018.       This appeal

followed. Appellant and the trial court complied with Pa.R.A.P. 1925.

       Before we address any questions raised on appeal, we must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on direct

appeal. The procedural mandates are that counsel must:

       1) petition the court for leave to withdraw stating that, after
       making a conscientious examination of the record, counsel has
       determined that the appeal would be frivolous; 2) furnish a copy
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3   61 Pa.C.S. §§ 4501-4512.

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      of the brief to the defendant; and 3) advise the defendant that he
      or she has the right to retain private counsel or raise additional
      arguments that the defendant deems worthy of the court’s
      attention.

Id. at 1032 (citation omitted).

      In this case, counsel averred that he “reviewed the original file and the

transcripts from the proceedings, consulted with Appellant’s original attorney,

and finds no justifiable issues upon which this appeal can be based.” Anders

Brief at 8. Counsel sent Appellant a copy of the Anders brief and petition to

withdraw, as well as a letter, a copy of which is attached to the petition to

withdraw. In the letter, counsel advised Appellant that she could represent

herself or that she could retain private counsel. Appellant has not filed any

additional documents with this Court.

      We now examine whether the brief satisfies our Supreme Court’s

dictates in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which

provide 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 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.




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       Here, counsel’s brief is sufficiently compliant with Santiago. The brief

sets forth the procedural history of this case,4 outlines pertinent case

authority, and discusses counsel’s conclusion that the appeal is frivolous. We

thus conclude that counsel has met the procedural and briefing requirements

for withdrawal. “[W]hen counsel meets his or her obligations, ‘it then becomes

the responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.’”        Santiago, 978 A.2d at 355 n.5 (quoting

Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).

       Counsel for Appellant has indicated that, after a thorough and careful

review of the certified record, there are no meritorious issues. Anders Brief

at 8. However, counsel does set forth one possible issue on Appellant’s behalf:

       I.     Did the trial court abuse its discretion when imposing a
              sentence of nine (9) to forty-eight (48) months confinement
              in a state correctional institution; a sentence that fails to
              consider the history, characteristics, and rehabilitative
              needs of the Appellant?




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4  Counsel has failed to include a factual summary and does not provide record
citations in the procedural summary in contravention of Pa.R.A.P. 2117(a)(4)
and 2119(c). We admonish counsel that it “is not this Court’s responsibility
to comb through the record seeking the factual underpinnings of [Appellant’s]
claim.” Irwin Union Nat. Bank & Tr. Co. v. Famous, 4 A.3d 1099, 1103
(Pa. Super. 2010) (citing Commonwealth v. Mulholland, 702 A.2d 1027,
1034 n.5 (Pa. 1997)).




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Anders Brief at 4 (full capitalization omitted).5

       This issue presents a challenge to the discretionary aspects of

Appellant’s sentence.      We note that “[t]he right to appellate review of the

discretionary aspects of a sentence is not absolute.”       Commonwealth v.

Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant

challenges the discretionary aspects of a sentence, the appeal should be

considered a petition for allowance of appeal. Commonwealth v. W.H.M.,

932 A.2d 155, 163 (Pa. Super. 2007).

       An appellant challenging the discretionary aspects of her sentence must

invoke this Court’s jurisdiction by satisfying a four-part test:

             We 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. [708]; (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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

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

determination of whether there is a substantial question is made on a case-

by-case basis, and this Court will grant the appeal only when the appellant



____________________________________________


5  We note that counsel included a second issue: “Should an application to
withdraw as counsel be granted where counsel has investigated the possible
grounds of appeal and finds the appeal frivolous?” Anders Brief at 4. This
issue is implicit in counsel’s petition to withdraw.

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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. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015). “[W]e

cannot look beyond the statement of questions presented and the prefatory

2119(f) statement to determine whether a substantial question exists.”

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(citation omitted).

      Herein, the first three requirements of the four-part test are satisfied:

Appellant brought a timely appeal, raised the challenge in a post-sentence

motion, and, at page seven of the Anders brief, included a concise statement

of the reasons relied upon for allowance of appeal.         Therefore, we next

determine whether Appellant raised a substantial question requiring us to

review the discretionary aspects of the sentence imposed by the trial court.

      On Appellant’s behalf, counsel submits that “the trial court imposed a

sentence   that   is   manifestly   excessive   in   relation   to   [Appellant’s]

characteristics, nature of the offense, and rehabilitative needs.” Anders Brief

at 7. Appellant seeks a county sentence. Id. We conclude that Appellant’s

challenge to the imposition of her sentence as excessive, together with her

claim that the trial court failed to consider her rehabilitative needs, presents

a substantial question. See Commonwealth v. Johnson, 125 A.3d 822 (Pa.

Super. 2015) (excessive sentence claim, in conjunction with assertion that


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sentencing court failed to consider mitigating factors, raises a substantial

question). Thus, we grant Appellant’s application for allowance of appeal and

address the merits of this sentencing claim. Caldwell, 17 A.3d at 770.

      The record reveals that the trial court reviewed on the record a pre-

sentence investigation report (“PSI”) provided by the Pennsylvania Board of

Probation and Parole. N.T. Sentencing, 5/15/18, at 3–7. Moreover, defense

counsel advised the court of Appellant’s efforts to obtain a mental health, drug

and alcohol evaluation and a recent hospitalization, which has caused

Appellant “to finally begin[] to address the deep underlying issue[], which

seems to be mental health.” Id. at 13. Thus, the trial court was aware of

Appellant’s background, criminal history, mental health diagnosis, and failure

to obtain and maintain treatment.

      The trial court stated the basis for Appellant’s sentence as follows:

             [Appellant] had contacts with Lewistown in Mifflin County,
      Mt. Union Police Department, and Pennsylvania State Police
      Huntington dating back to 2001.3 In 2013 [Appellant’s] State IP
      was revoked and she was resentenced to fifteen (15) to thirty (30)
      months which she maxed out.4 [Appellant] was then charged with
      Aggravated Assault while under the [i]nfluence, to which she
      plead guilty to a DUI and served a sentence of one (1) year and
      one (1) day to two (2) years and two (2) days in [a] state
      correctional institution.5 Upon release, she accumulated a number
      of summary offenses in both Lewistown and Grandville Township.6
      [Appellant] was determined to have minimal contacts with county
      [sic], expressed wishes to be closer to her son and mother in
      New[ton] Hamilton, Pennsylvania, and had previous contacts with
      the state prison system. This information[,] in addition to her bail
      being revoked prior to sentencing due to reliable evidence that
      [Appellant] had produced three positive patches for cocaine, failed
      to follow up with the recommended treatment and services, failed
      to reside at her approved address, and failed to comply with the

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      directives of the supervised bail office, showed this [c]ourt
      [Appellant’s] unwillingness to engage in steps to seek the help she
      requires.7

            3   See N.T., May 15, 2018 at page 3.
            4   Id.
            5   Id. at 4.
            6   Id.
            7   Id. at 10–17.

            Contrary to [Appellant’s] assertion now, the [c]ourt did
      consider her need for rehabilitation. As the [c]ourt noted at
      sentencing, however, most of the opportunities for rehabilitation
      are “self-reporting” and [Appellant’s] failure to “self-report”
      prevented her from taking advantage of those opportunities.8
      Given the numerous times this issue was addressed in dealing with
      the multiple violations committed by [Appellant] throughout her
      bail supervision, the [c]ourt did not believe that the sudden
      interest in rehabilitation expressed by [Appellant] at sentencing
      was sincere.

            8   Id. at 16–17.

             A review of the matter clearly showed that all county-level
      efforts at rehabilitation had been exhausted and her contacts with
      the county were transient. The instant sentence does provide
      [Appellant] with the opportunity to participate in drug, alcohol,
      and mental health treatment while incarcerated, and she will be
      able to pursue further treatment upon release to supervision.

Trial Court Opinion, 8/10/18, at 1–2.

      Upon review, we conclude Appellant’s claim that the trial court failed to

consider Appellant’s characteristics, the nature of the offense, and her

rehabilitative needs is meritless. Indeed, equipped with a PSI, the trial court

considered all of the factors Appellant identifies on appeal as relevant to

consideration of her personal circumstances and characteristics. See

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (“Where


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the sentencing judge had the benefit of a presentence investigation report, it

will be presumed that he or she was aware of the relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.”).    Specifically, the trial court considered

Appellant’s   recidivism   and   repeated     failures   to   avail   herself   of   the

opportunities to rehabilitate.    Trial Court Opinion, 8/10/18, at 1–2.              The

sentence was not excessive in light of those factors. Appellant has failed to

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.              Thus,

Appellant’s sentencing challenge lacks merit.

      Finally, we have independently reviewed the record in order to

determine if appellate counsel’s assessment about the frivolous nature of the

present appeal is correct. See Commonwealth v. Flowers, 113 A.3d 1246,

1250 (Pa. Super. 2015) (holding that, after determining counsel has satisfied

the technical requirements of Anders and Santiago, this Court must conduct

an independent review of the record to determine if there are additional, non-

frivolous issues overlooked by counsel). After review of the issue raised by

counsel and our independent review of the record, we conclude that an appeal

in this matter is frivolous. Accordingly, we grant appellate counsel permission

to withdraw and affirm the judgment of sentence.

      Petition to withdraw as counsel granted. Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/11/2019




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