J-S74034-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
DARNELL FLOWERS,                        :
                                        :
                 Appellant              : No. 1329 EDA 2014

          Appeal from the Judgment of Sentence March 21, 2014,
               Court of Common Pleas, Montgomery County,
             Criminal Division at No. CP-46-CR-0000061-2012


COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
DARNELL FLOWERS,                        :
                                        :
                 Appellant              : No. 1330 EDA 2014

          Appeal from the Judgment of Sentence March 21, 2014,
               Court of Common Pleas, Montgomery County,
             Criminal Division at No. CP-46-CR-0004340-2012


COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
DARNELL FLOWERS,                        :
                                        :
                 Appellant              : No. 1331 EDA 2014

          Appeal from the Judgment of Sentence March 21, 2014,
               Court of Common Pleas, Montgomery County,
             Criminal Division at No. CP-46-CR-0007596-2011

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.


*Retired Senior Judge assigned to the Superior Court.
J-S74034-14


MEMORANDUM BY DONOHUE, J.:                       FILED DECEMBER 14, 2015

      Darnell Flowers appeals from the judgment of sentence entered

following his convictions of three counts of retail theft, 18 Pa.C.S.A. §

3929(a)(1). For the following reasons, we affirm.

      We begin with a brief factual and procedural background.         Between

September 2011 and September 2012, the Commonwealth charged Flowers

in three separate incidents with retail theft and other related charges. On

January 28, 2013, Flowers entered an open guilty plea to three counts of

retail theft.   On March 21, 2014, the trial court sentenced Flowers to two

consecutive sentences of eleven and a half to twenty-three months of

imprisonment, followed by four years of probation. Flowers filed a timely

post-sentence motion seeking reconsideration of his sentence, which the

trial court denied.   His court-appointed counsel (“Counsel”) timely filed a

notice of appeal. In response to the trial court’s directive to file a statement

of matters complained of on appeal, Counsel filed a statement of his intent

to file an Anders brief, pursuant to Pa.R.A.P. 1925(c)(4),1 and identified one

issue that could arguably support an appeal: whether the aggregate



1
   “In a criminal case, counsel may file of record and serve on the judge a
statement of intent to file an Anders/McClendon brief in lieu of filing a
Statement. If, upon review of the Anders/McClendon brief, the appellate
court believes that there are arguably meritorious issues for review, those
issues will not be waived; instead, the appellate court may remand for the
filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or
both. Upon remand, the trial court may, but is not required to, replace
appellant’s counsel.” Pa.R.A.P. 1925(c)(4).


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sentence was unduly harsh and excessive, which Flowers also raised in his

post-sentence motion. Concise Statement, 6/10/14. In response, the trial

court authored an opinion discussing the issue Counsel identified and urged

this Court to conclude that it did not amount to a “‘non-frivolous’ claim for

relief.” Trial Court Opinion, 6/30/14, at 3.

      Counsel then filed his request to withdraw and Anders brief with this

Court.   Upon our review, we concluded that Counsel could not have

performed the thorough review of the record, as is required by Anders,

because the transcript from his guilty plea proceeding was not included in

the certified record on appeal; accordingly, we denied Counsel’s petition to

withdraw and remanded with instructions for Counsel to obtain the missing

notes of testimony and file either an advocate's brief or another Anders

brief following his review of a complete record.        Commonwealth v.

Flowers, 113 A.3d 1246, 1250-51 (Pa. Super. 2015).

      Counsel has complied and filed an advocate’s brief on Flowers’ behalf.2

He presents only one issue for our review, which he presents as follows:

“President Judge Furber abused his discretion when he sentenced [Flowers]

to an aggregate term of twenty-three to forty-six months of total

confinement to be followed by four years of probation with respect to


2
  The Montgomery County Public Defender’s Office has represented Flowers
throughout the course of this appeal, although the attorney who filed the
Anders brief and petition to withdraw evidently has since left the
Montgomery County Public Defender’s Office and another member thereof
has filed this brief on Flowers’ behalf. See Flowers’ Brief at 9.


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J-S74034-14


[Flowers’] open plea to three counts of retail theft.” Flowers’ Brief at 7. This

argument    challenges   the   discretionary   aspects   of   Flowers’   sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa. Super. 2011) (citation omitted).

            An appellant challenging the discretionary aspects of
            his sentence must invoke this Court’s jurisdiction by
            satisfying a four-part test: (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).

Id.

      As noted above, Flowers’ appeal was timely filed and he filed a post-

sentence motion seeking reconsideration of his sentence. However, Flowers

has not included a statement in his brief pursuant to Pa.R.A.P. 2119(f).

Furthermore, the Commonwealth has objected to Flowers’ failure to include

a Pa.R.A.P. 2119(f) statement in his brief.       Commonwealth’s Brief at 5.

Where an appellant has failed to include a Rule 2119(f) statement in his

brief and the Commonwealth objects to this omission, this Court is precluded

from reviewing the merits of the claim and we must deny the request for

appeal. Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).



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      Even if Flowers had included the requisite Rule 2119(f) statement in

his brief, he would still not be entitled to relief.      Flowers argues that in

consideration of certain unfortunate life circumstances and his willingness to

plead guilty to the offenses, the imposition of consecutive sentences was

unreasonable.   Flowers’ Brief at 11-15.        Flowers also argues that the trial

court erred by not focusing on Flowers’ attempts in the last five or six years

to “turn the corner” and abandon his life of crime. Id. at 15-16. Both of

these allegations amount to a claim that the trial court did not give adequate

weight to certain mitigating factors.    “[T]his Court has held on numerous

occasions that a claim of inadequate consideration of mitigating factors does

not raise a substantial question for our review.”               Commonwealth v.

Swope, 123 A.3d 333, 339, (Pa. Super. 2015); see also Commonwealth

v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015).

      We recognize that a claim that the trial court failed to consider

mitigating factors in conjunction with an excessiveness claim may present

a substantial question so as to invoke our review. See Caldwell, 117 A.3d

at 770. Flowers does not raise an excessiveness claim in conjunction with

this allegation; he simply alleges that his sentence was unreasonable in light

of these mitigating factors.     Flowers’ Brief at 12.      Nevertheless, even if

Flowers   had   specifically   coupled   this    claim   with    an   allegation   of

excessiveness, his claim would not succeed. The record reveals that the trial

court did, in fact, take Flowers’ familial background and upbringing into



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J-S74034-14


account when sentencing Flowers. N.T., 3/21/14, at 13-14. The trial court

also explicitly stated that took into consideration the argument made by

Flowers’ counsel, which emphasized the same aspects of Flowers’ past that

Flowers discusses in his brief on appeal. See id. at 6-10, 14; Flowers’ Brief

at 12-13. There is, therefore, no merit to this claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2015




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