J-S64025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEVIN MICHAEL SOJACK,

                            Appellant                 No. 705 MDA 2017


               Appeal from the Judgment of Sentence April 4, 2017
                 In the Court of Common Pleas of Luzerne County
    Criminal Division at No(s): CP-40-CR-0001156-2016, CP-40-CR-0001157-
      2016, CP-40-CR-0001158-2016, CP-40-CR-0001159-2016, CP-40-CR-
                     0001160-2016, CP-40-CR-0001468-2016


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 02, 2017

        Kevin Michael Sojack (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Luzerne County on April

4, 2017. Appellant’s counsel has filed an application to withdraw his

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which

govern a withdrawal from representation on direct appeal. Appellant has not

filed a response to counsel’s petition.        After careful review, we grant

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


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       Appellant was charged with multiple drug-related offenses arising from

incidents occurring in December 2015, January 2016, and March 2016. Trial

Court Opinion, 6/27/17, at 1. He pled guilty on February 7, 2017, to three

counts of delivery of a controlled substance and three counts of criminal

conspiracy related to possession with intent to deliver a controlled

substance.1     Id. The trial court sentenced Appellant on April 4, 2017, to

incarceration for an aggregate term of six years to fifteen years. Appellant

did not file post-sentence motions. Id. at 2. On April 13, 2017, he filed a

notice of appeal, and the trial court appointed appellate counsel. Id. Both

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

       Before we address the merits of this appeal, we first must resolve

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

A.3d 1030, 1032 (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
       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).

____________________________________________


1   35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903, respectively.



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      In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted a thorough review of

Appellant’s case and determined that the appeal would be frivolous. 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. In the letter, counsel

advised Appellant that he could either represent himself on appeal or retain

private counsel to represent him.

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

dictates in Santiago, 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.

Santiago, 978 A.2d at 361.

      Counsel’s brief is compliant with Santiago.     It sets forth the factual

and procedural history of this case, outlines pertinent case authority, cites to

the record, and refers to an issue of arguable merit. Anders Brief at 4–6.

Further, the brief sets forth counsel’s conclusion that the appeal is frivolous

and the reasons for counsel’s conclusion. Id. at 6–7. “Therefore, we now

have the responsibility to make a full examination of the proceedings and

make an independent judgment to decide whether the appeal is in fact

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wholly frivolous.”    Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa.

Super. 2016) (citation and internal quotation marks omitted).

     In the Anders brief, counsel presents a single issue for our

consideration: “Whether the trial court abused its discretion in sentencing

Appellant.”    Anders Brief at 1.     This issue challenges the discretionary

aspects of his 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).

     As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

     An appellant challenging the discretionary aspects of his
     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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question

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is made on a case-by-case basis, and this Court will grant the appeal 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. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

       Herein, the first requirement of the four-part test is met: Appellant

brought a timely appeal.         Notice of Appeal, 4/13/17.        As for the second

requirement, we are constrained to agree with the position taken by both

appellate counsel and the trial court that Appellant failed to preserve this

challenge at the time of sentencing or in a post-sentence motion. Anders

Brief at 7; Trial Court Opinion, 6/27/17, at 3–4.2             Because Appellant’s

sentencing issue was not raised in any manner, we conclude that Appellant

has waived it. Moury, 992 A.2d at 170.3

       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.    Tukhi,    149   A.3d   at   886;   see   also

____________________________________________


2 Although the Commonwealth did not file a brief, it “agrees with Appellant’s
counsel that the issues presented are frivolous and without merit,” and
“relies upon the Opinion prepared by the Court of Common Pleas.”
Commonwealth Letter, 9/18/17.

3  Because Appellant’s petition for allowance of appeal fails on the second
prong, we need not address the third and fourth requirements.



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

determining that 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.

     Application to withdraw granted. Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2017




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