J-S60041-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                Appellee               :
                                       :
                  v.                   :
                                       :
MICHAEL PIETRAZAK,                     :
                                       :
                Appellant              :     No. 97 EDA 2016


        Appeal from the Judgment of Sentence September 30, 2015,
            in the Court of Common Pleas of Delaware County,
           Criminal Division at No(s): CP-23-CR-0001528-2015

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 30, 2016

      Michael Pietrazak (Appellant) appeals from his September 30, 2015

judgment of sentence, which the trial court imposed after Appellant pled

guilty to three counts of possession of a controlled substance with intent to

deliver (PWID) and two counts of conspiracy.        In addition, Appellant’s

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. 2009).    We affirm the judgment of sentence and grant the

petition to withdraw.

      The factual basis underlying Appellant’s guilty plea provided that “on

three different occasions [Appellant] had in [his] possession Oxycodone and

… [engaged in] a hand-to-hand transaction with an undercover officer….”

N.T., 7/16/2015, at 16.     As a result of these incidents, Appellant was

*Retired Senior Judge assigned to the Superior Court.
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arrested and charged with, inter alia, three counts of PWID and two counts

of conspiracy. On July 16, 2015, Appellant entered an open guilty plea to

those offenses. Trial Court Opinion, 1/28/2016, at 1.

      On September 30, 2015, Appellant was sentenced to an aggregate

term of 54 to 108 months of incarceration to be followed by four years of

probation.1 Appellant timely filed a post-sentence motion arguing that the

sentence   was   “unduly   harsh   and   manifestly   excessive.”   Motion   for

Reconsideration and Modification of Sentence, 10/9/2015, at ¶ 4. The trial

court denied that motion, and Appellant timely filed a notice of appeal.

      The trial court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925, and counsel filed a

statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

      The following principles guide our review of this matter:

      Direct appeal counsel seeking to withdraw under Anders must
      file a petition averring that, after a conscientious examination of
      the record, counsel finds the appeal to be wholly frivolous.
      Counsel must also file an Anders brief setting forth issues that
      might arguably support the appeal along with any other issues
      necessary for the effective appellate presentation thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

1
  For the PWID counts, the trial court imposed three sentences of 54 to 108
months of incarceration to run concurrently to each other. The trial court
also imposed two sentences of two years of probation on each count of
conspiracy to run consecutively to each other. The same day, the trial court
conducted probation revocation hearings on three other cases which are not
at issue here.


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               If counsel does not fulfill the aforesaid technical
        requirements of Anders, this Court will deny the petition to
        withdraw and remand the case with appropriate instructions
        (e.g., directing counsel either to comply with Anders or file an
        advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
        petition and brief satisfy Anders, we will then undertake our
        own review of the appeal to determine if it is wholly frivolous. If
        the appeal is frivolous, we will grant the withdrawal petition and
        affirm the judgment of sentence. However, if there are non-
        frivolous issues, we will deny the petition and remand for the
        filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

        Our Supreme Court has clarified portions of the Anders procedure:

        Accordingly, we 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
        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.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

above requirements.2      Once “counsel has met these 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


2
    Appellant has not responded to counsel’s petition to withdraw.



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the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 113

A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n.

5).

      Counsel presents one issue that arguably supports this appeal.

Specifically, counsel raises a challenge to the discretionary aspects of

Appellant’s sentence.3   Appellant’s Brief at 2.    The applicable 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.

                                    ***

            When imposing sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should
      refer to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).



3
   “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his or her 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).


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      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:

            (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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      The record reflects that Appellant timely filed a notice of appeal and

that he preserved this issue by including it in his post-sentence motion.

Appellant has also included in his brief a statement pursuant to Pa.R.A.P.

2119(f). We now consider whether Appellant has presented a substantial

question for our review.

      Appellant’s 2119(f) statement presents the issue that “the sentences

of incarceration imposed herein are harsh and excessive under the

circumstances.” Appellant’s Brief at 4.

         The determination of whether a substantial question exists
         must be made on a case-by-case basis. It is only where
         an aggrieved party can articulate clear reasons why the
         sentence issued by the trial court compromises the
         sentencing scheme as a whole that we will find a
         substantial question and review the decision of the trial
         court.   This [C]ourt has been inclined to find that a


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         substantial question exists where 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 underlying the sentencing process.

         Also, a bald allegation that a sentence is excessive does
         not raise a substantial question.

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations

omitted).

      Because a bald allegation of excessiveness does not raise a substantial

question, we agree with counsel that this issue is frivolous.       Moreover,

looking to the circumstances of this case, we bear in mind that the trial court

“sentenced Appellant in the low end of the mitigated range.” Trial Court

Opinion, 1/28/2016, at 1. Furthermore, Appellant was sentenced to serve

his sentences of incarceration concurrently, rather than consecutively.

Based on the foregoing, we agree with counsel that any challenge to the

discretionary aspects of Appellant’s sentence is frivolous.     Moreover, we

have conducted “a full examination of the proceedings” and conclude that

“the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248. Thus,

we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2016




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