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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 PETER M. BENNETHUM, JR.,                 :
                                          :
                    Appellant             :       No. 1636 MDA 2018

      Appeal from the Judgment of Sentence Entered August 31, 2018
               in the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0005108-2017

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 09, 2019

      Peter M. Bennethum, Jr. (“Bennethum”), appeals from the judgment of

sentence imposed following his conviction of criminal trespass.        See 18

Pa.C.S.A. § 3503(a)(1)(ii). Additionally, Samuel J. Mills, Esquire (“Attorney

Mills”), has filed a Petition to Withdraw as counsel, and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738 (1967). We grant Attorney

Mills’s Petition to Withdraw, and affirm Bennethum’s judgment of sentence.

      On August 31, 2018, following a bench trial, Bennethum was convicted

of criminal trespass. The trial court sentenced Bennethum to time served (339

days) to 23 months in prison, followed by 4 years of probation. Bennethum

filed a timely post-sentence Motion, seeking, inter alia, modification of his

sentence. The trial court denied Bennethum’s post-sentence Motion.

      Bennethum filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal. On January
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13, 2019, Attorney Mills filed a Petition to Withdraw as counsel, and an

accompanying Anders Brief.

     In the Anders Brief, Attorney Mills presents the following issue for our

review:

     Whether the trial court erred and abused its discretion in imposing
     a sentence which included four (4) years of consecutive probation
     following a sentence of time[]served (339 days) to twenty-three
     (23) months and is excessive in nature, where the trial court failed
     to consider [Bennethum’s] rehabilitative needs and the protection
     of society?

Anders Brief at 7.

     We must first determine whether Attorney Mills has complied with the

dictates of Anders in petitioning to withdraw from representation.          See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc) (stating that “[w]hen faced with a purported Anders brief, this Court

may not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

     (1) petition the court for leave to withdraw stating that after
     making a conscientious examination of the record and
     interviewing the defendant, counsel has determined the appeal
     would be frivolous, (2) file a brief referring to any issues in the
     record of arguable merit, and (3) furnish a copy of the brief to
     defendant and advise him of his right to retain new counsel or to
     raise any additional points that he deems worthy of the court’s
     attention. The determination of whether the appeal is frivolous
     remains with the [appellate] court.




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Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

       Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders brief 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

       In the instant case, Attorney Mills has complied with the requirements

set forth in Anders by indicating that he reviewed the record and determined

that Bennethum’s appeal would be wholly frivolous.          Further, the record

contains a copy of the letter that Attorney Mills sent to Bennethum, informing

him of Attorney Mills’s intention to withdraw, and advising him of his right to

proceed pro se, retain counsel, and file additional claims.1 Finally, Attorney

Mills’s Anders Brief meets the standards set forth in Santiago.        Because

Attorney Mills has complied with the procedural requirements for withdrawing

from representation, we will independently review the record to determine

whether Bennethum’s appeal is, in fact, wholly frivolous.




____________________________________________


1 Bennethum did not file a pro se appellate brief, nor did he retain alternate
counsel for this appeal.

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      Bennethum argues that the trial court imposed an excessive sentence

by directing Bennethum to serve a consecutive 4-year probationary sentence,

without considering his rehabilitative needs and the protection of the public.

See Anders Brief at 18-19.

      Bennethum challenges the discretionary aspects of his sentence, from

which there is no absolute right to appeal. See Commonwealth v. Hill, 66

A.3d 359, 363 (Pa. Super. 2013).        Prior to reaching the merits of a

discretionary sentencing issue,

      [this Court conducts] 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. [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. Moury, 992 A.2d 162, 170 (quotation marks and some

citations omitted).

      Here, Bennethum filed a timely Notice of Appeal, preserved his

sentencing claim in a timely post-sentence Motion, and included a separate

Rule 2119(f) Statement in the Anders Brief. Additionally, Bennethum’s claim

raises a substantial question for our review.      See Commonwealth v.

Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (concluding that a challenge

to the imposition of consecutive sentences as unduly excessive, together with

a claim that the trial court failed to consider an appellant’s rehabilitative



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needs, presents a substantial question). Thus, we will consider the merits of

his claim.

      Our standard of review of a challenge to the discretionary aspects of a

sentence is well settled:

      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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).

      The Sentencing Code provides that “the [trial] court shall 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.” 42 Pa.C.S.A. § 9721(b). The trial court

must also consider the Sentencing Guidelines.             See id.; see also

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating

that “[w]hen imposing a sentence, the [trial] court is required to consider the

sentence ranges set forth in the Sentencing Guidelines….”).             Further,

regarding probation, “Section 9754 of the Sentencing Code only mandates

that a sentencing court keep a term of probation under the maximum term a

defendant could be confined.” Commonwealth v. Crump, 995 A.2d 1280,

1284 (Pa. Super. 2010); see also 42 Pa.C.S.A. § 9754.



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       Here, at the time of sentencing, Bennethum’s counsel stated that

Bennethum had been receiving mental health treatment since approximately

2003, and argued that Bennethum could continue with treatment without

court supervision. See N.T., 8/31/18, at 30. Bennethum also exercised his

right of allocution, at which time he stated that the court could “trust [him]

on not having to have a probationary tail and to actually do extraordinary

things for the community and also for [himself] and [his] family.” Id. at 31.

Moreover, the trial court indicated, on the record, that it had considered the

Sentencing      Guidelines,2     the    Commonwealth’s   recommendation,   and

statements made by Bennethum and his counsel. See id. at 31-32. In its

Opinion, the trial court noted that “by his own admission[, Bennethum] broke

into the home of the victim …, which is a very serious crime.” Trial Court

Opinion, 11/16/18, at 3.           Further, the trial court determined that the

consecutive probationary term “best provided for the protection of the public

and the rehabilitative needs of [Bennethum].” Id.

       Our review confirms that the trial court properly considered all of the

relevant statutory factors before sentencing Bennethum. See 42 Pa.C.S.A.

§ 9721(b); see also Sheller, supra. Additionally, Bennethum’s probationary

term is well below the statutory maximum sentence for criminal trespass, a
____________________________________________


2 Although Bennethum does not specifically challenge his sentence of time
served, we note that the offense gravity score for criminal trespass is 4, and
Bennethum’s prior record score was 0. Thus, the Sentencing Guidelines
recommend a standard-range sentence of restorative sanctions to 3 months
in prison, plus or minus 3 months for the aggravated/mitigated range. See
204 Pa. Code § 303.16(a).

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second-degree felony.     See 42 Pa.C.S.A. § 9754; see also 18 Pa.C.S.A.

§ 1103(2) (authorizing a maximum sentence of 10 years in prison for a

second-degree felony). Accordingly, we conclude that the trial court did not

abuse its discretion by ordering Bennethum to serve a 4-year probationary

term, consecutive to his sentence of time served.       Thus, Bennethum’s

sentencing challenge fails.

      Finally, our independent review of the record discloses no additional

non-frivolous issues that Bennethum could raise on appeal.    We therefore

grant Attorney Mills’s Petition to Withdraw, and affirm Bennethum’s judgment

of sentence.

      Petition to Withdraw granted. Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/09/2019




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