J-S28034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

JESSE VANCE SHOEMAKER

                          Appellant                  No. 2015 MDA 2014


            Appeal from the Judgment of Sentence October 30, 2014
                In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0000533-2008


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JUNE 10, 2015

     Jesse Vance Shoemaker appeals from the judgment of sentence of 1½

to 3 years’ incarceration imposed by the Court of Common Pleas of Adams

County after it revoked his County Intermediate Punishment Program (IPP)

sentence.     Shoemaker’s counsel also seeks to withdraw pursuant to the

dictates of Anders v. California, 386 U.S. 738 (1967), Commonwealth v.

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

434 A.2d 1185 (Pa. 1981).        Upon review, we grant counsel’s petition to

withdraw and affirm Shoemaker’s judgment of sentence.

     The trial court set forth the relevant facts of the case as follows:

     Shoemaker originally entered a plea of guilty to forgery as a
     felony of the third degree on September 15, 2008. He was
     sentenced pursuant to a plea agreement to 36 months of county
     intermediate punishment. Pursuant to agreement of the parties,
     the sentence was imposed consecutively to numerous lengthy
     sentences [Shoemaker] was serving for convictions which
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       included prior forgeries and access device fraud. While still
       under the supervision of his original sentence of intermediate
       punishment, on May 6, 2014, [Shoemaker] was found guilty of
       corruption of minors, 18 Pa.C.S. § 6301, and indecent assault,
       18 Pa.C.S. § 3126, for conduct committed on December 5, 2011.
       [He was sentenced to 16 months’ to 5 years’ incarceration for
       corruption of minors, and a concurrent term of 1 to 2 years’
       incarceration for indecent assault.]       Thereafter, revocation
       proceedings were commenced. On July 28, 2014, [Shoemaker]
       acknowledged violating the conditions of his sentence of
       intermediate punishment. Following preparation of the pre-
       sentence investigation, [Shoemaker] was sentenced on October
       30, 2014, to serve no less than 1½ nor more than 3 years in a
       state correctional institution consecutive to any other sentence
       he was serving.1

Trial Court Opinion, 1/27/15, at 1.

       Shoemaker filed a timely notice of appeal on November 24, 2014, and

on December 16, 2014, in response to an order from the trial court, he filed

a statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). On January 27, 2015, the court filed its Rule 1925(a) opinion.

       On February 9, 2015, Shoemaker’s counsel filed an Anders brief.

“When faced with a purported Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super.

2005).     Furthermore, counsel must comply with certain mandates when
____________________________________________


1
  On February 11, 2014, Shoemaker was sentenced on an unrelated matter
to 10 to 20 years’ imprisonment for involuntary deviate sexual assault of a
child less than 13, corruption of minors, and indecent assault of a person
less than 13. The convictions were the result of offenses committed on or
about February 22, 2006, which was prior to the offense in the instant
matter, and accordingly are not the basis for the revocation proceedings in
this appeal.



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seeking to withdraw pursuant to Anders, Santiago, and McClendon.

These mandates are not overly burdensome and have been summarized as

follows:

           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.

           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).

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations

omitted).

      Here, counsel has provided the facts and procedural history of the

case, and avers that, after a thorough review of the record, he finds the

appeal to be wholly frivolous, and states his reasons for this conclusion.

Counsel provided a copy of the petition and Anders brief to Shoemaker,

advised him of the right to retain new counsel, or proceed pro se, and raise

any   additional   points   he   deems   worthy   of   this   Court’s   attention.

Accordingly, we find counsel has met the requirements of Anders,

McClendon and Santiago.


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         Once counsel has satisfied the above requirements, this Court

conducts its own review of the proceedings and renders an independent

judgment      as   to   whether   the   appeal   is,   in   fact,   wholly   frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

         In his Anders brief, the sole issue of arguable merit raised by counsel

is whether the trial court committed a manifest abuse of discretion by

ordering that Shoemaker serve his sentence of 1½ to 3 years for forgery

consecutively to his aggregate sentence of 11 years and 4 months to 25

years’ incarceration for sexually based offenses.

         Shoemaker’s allegation that his sentence was excessive is a challenge

to the discretionary aspect of his sentence, which is not appealable as of

right.    Rather, an appellant challenging the sentencing court’s discretion

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

Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).

         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. 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. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

         Here, Shoemaker filed a timely notice of appeal, and has preserved his

claim by raising it at his sentencing hearing and in his statement of errors


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complained of on appeal. Finally, Shoemaker’s counsel has included in his

Anders brief a statement pursuant to Pa.R.A.P. 2119(f), claiming that the

trial court imposed an excessive sentence.

      Judicial review of the discretionary aspects of a sentence is granted

only upon a showing that there is a substantial question that the sentence

was inappropriate and contrary to the fundamental norms underlying the

Sentencing Code.     Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987). A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision in the Sentencing Code; or (2) contrary

to   the   fundamental   norms   which   underlie   the   sentencing   process.”

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en

banc).

      Shoemaker argues that he raises a substantial question as to whether

the imposition of a consecutive sentence is “contrary to the fundamental

norms which underlie the sentencing process.”             Commonwealth v.

Bullock, 868 A.2d 516, 528 (Pa. Super. 2005).         He “argues that such a

sentence is excessive given the significant amount of time (at least 11

years) already imposed.” Appellant’s Brief, at 8.

      As a general rule, “a bald claim of excessiveness due to the

consecutive nature of a sentence will not raise a substantial question.”

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). “The

imposition of consecutive, rather than concurrent, sentences may raise a

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substantial question in only the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.”      Commonwealth v. Moury, 992 A.2d

162, 171-72 (Pa. Super. 2010).

      Here, Shoemaker has failed to articulate why imposing a 1½ to 3 year

sentence for forgery consecutively to an aggregate sentence of 11 years and

4 months to 25 years for serious offenses against minors is excessive. This

is in stark contrast to Dodge, where we held that a sentence of 58½ to 124

years’ imprisonment based on consecutive sentences for thirty-seven theft

related offenses was excessive, and thus raised a substantial question.

      Shoemaker has failed to raise a substantial question, and therefore is

not entitled to review of the discretionary aspect of his sentence.

      Judgment of sentence affirmed.        Petition to withdraw as counsel

granted.

      ALLEN, J., Joins the memorandum.

      BOWES, J., Concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2015




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