J-S43034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIE ANDRAE DELEON

                            Appellant               No. 1100 MDA 2015


            Appeal from the Judgment of Sentence March 17, 2015
             in the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001136-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED JUNE 14, 2016

        Appellant Willie Andrae Deleon (“Appellant”) appeals from the March

17, 2015 judgment of sentence entered in the Lackawanna County Court of

Common Pleas following his guilty plea convictions for criminal solicitation

(involuntary deviate sexual intercourse of a person less than 16 years of

age)1 and unlawful contact with a minor.2 Appellant’s counsel has filed an

Anders3 brief, together with a petition to withdraw as counsel. We affirm

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



____________________________________________


1
    18 Pa.C.S. § 902(a) (§ 3127(a)(7)).
2
    18 Pa.C.S. § 6318(a)(1).
3
    Anders v. California, 386 U.S. 738 (1967).
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        On August 25, 2014, Appellant pleaded guilty to the aforementioned

charges.     On March 17, 2015, after the preparation of a presentence

investigation report and a sexual offenders assessment board evaluation, the

trial court sentenced Appellant to 48-96 months’ incarceration followed by

four years’ probation on the criminal solicitation conviction and two years’

probation on the unlawful contact with a minor conviction to be served

consecutively to the solicitation sentence.         On March 27, 2015, Appellant

filed a motion for reconsideration arguing the sentence was excessive, which

the trial court denied on May 26, 2015, after conducting a hearing.

        Appellant filed a notice of appeal on June 25, 2015, and a Pa.R.A.P.

1925(b) statement on July 24, 2015.              The trial court filed its Pa.R.A.P.

1925(a) opinion on February 11, 2016.

        As previously noted, Appellant’s counsel has filed an application

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.4                 Before

addressing the merits of Appellant’s underlying issue presented, we must

first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa.Super.2007) (en banc).




____________________________________________


4
    978 A.2d 349 (Pa.2009).



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      Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established by our

Supreme Court in Santiago. The 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.

Santiago, 978 A.2d at 361. Counsel must also provide the appellant with a

copy of the Anders brief, together with a letter that advises the appellant of

his or her right to “(1) retain new counsel to pursue the appeal; (2) proceed

pro se on appeal; or (3) raise any points that the appellant deems worthy of

the court’s attention in addition to the points raised by counsel in the Anders

brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super.2007).

Substantial   compliance     with    these    requirements     is    sufficient.

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After

establishing that the antecedent requirements have been met, this Court

must then make an independent evaluation of the record to determine

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm,

903 A.2d 1244, 1246 (Pa.Super.2006).

      Instantly, counsel contemporaneously filed a petition to withdraw as

counsel with the Anders brief. The petition states counsel’s determination

that Appellant’s appeal is without merit.      See Petition to Withdraw As


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Counsel, ¶ 7. The petition further explains that counsel notified Appellant of

the withdrawal request and sent Appellant a letter explaining his right to

proceed pro se or with new, privately-retained counsel to raise any

additional points or arguments that Appellant believed had merit. 5 See id.

at ¶¶ 6-7; see also Letter to Appellant, March 2, 2016.         In the Anders

brief, counsel provides a summary of the facts and procedural history of the

case with citations to the record, refers to evidence of record that might

arguably support the issue raised on appeal, provides citations to relevant

case law, and states her conclusion that the appeal is wholly frivolous and

her reasons therefor. See Anders Brief, pp. 5-13. Accordingly, counsel has

substantially complied with the requirements of Anders and Santiago.

       As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issue of

arguable merit raised in the Anders brief:

       (A) Whether the lower court imposed a harsh and unreasonable
       sentence on the criminal solicitation-involuntary deviate sexual
       intercourse – person less than 16 years old offense?

Anders Brief, p. 4 (unnecessary capitalization omitted).

       This claim raises a challenge to the discretionary aspects of Appellant’s

sentence.     “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.”     Commonwealth v. Allen, 24

____________________________________________


5
  The letter further makes clear that counsel supplied Appellant with a copy
of the Anders brief. See Letter to Appellant, March 2, 2016.



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A.3d 1058, 1064 (Pa.Super.2011).        Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

     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.

Allen, 24 A.3d at 1064.

     Here, Appellant filed a timely notice of appeal and preserved his

discretionary aspects of sentencing issue in a motion for reconsideration of

sentence.   Further, Appellant’s brief includes a concise statement of the

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).

See Anders Brief, pp. 8-9.         Accordingly, we now determine whether

Appellant has raised a substantial question for review and, if so, proceed to

a discussion of the        merits of the    claim.    See Pa.R.A.P. 2119(f);

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).

     “A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental

norms   which   underlie    the   sentencing   process.”   Commonwealth    v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a

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substantial question on a case-by-case basis.”            Id.       A bald or generic

assertion that a sentence is excessive does not, by itself, raise a substantial

question justifying this Court’s review of the merits of the underlying claim.

Id.;    see    also   Commonwealth         v.    Harvard,      64    A.3d   690,   701

(Pa.Super.2013).      Further, “[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. Disalvo, 70

A.3d 900, 903 (Pa.Super.2013); see also Commonwealth v. Ratushny,

17 A.3d 1269, 1273 (Pa.Super.2011) (“argument that the sentencing court

failed to adequately consider mitigating factors in favor of a lesser sentence

does not present a substantial question appropriate for our review.”);

Commonwealth v.            Ladamus,      896    A.2d   592,    595    (Pa.Super.2006)

(“[A]ppellant’s contention that the trial court did not adequately consider a

mitigating     circumstance      when   imposing   sentence     does    not   raise   a

substantial question sufficient to justify appellate review of the merits of

such claim.”).

        “[A] substantial question exists when a sentencing court imposed a

sentence in the aggravated range without considering mitigating factors.”

Rhoades, 8 A.3d at 919 n.12 (citing Commonwealth v. Felmlee, 828

A.2d 1105, 1107 (Pa.Super.2003)) (emphasis in original). However, “where

a sentence is within the standard range of the guidelines, Pennsylvania law

views    the    sentence    as    appropriate    under   the    Sentencing     Code.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super.2010).

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       In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial

court abused its discretion by sentencing him in the high end of the

sentencing guidelines without considering certain mitigating factors.               See

Anders Brief, p. 9.6       The claim does not allege that the sentencing court

departed from the          standard    range     and   sentenced   Appellant   in   the

aggravated range of the sentencing guidelines.              It alleges merely that

Appellant received a sentence at the higher end of the standard range.

Therefore, this claim does not present a substantial question for this Court’s

review. See Moury, supra.



____________________________________________


6
   Appellant’s Pa.R.A.P. 2119(f) statement reads, in pertinent part, as
follows:

              The Appellant asserts that the sentencing court stated that
       it was imposing a sentence in [the] standard range, which for
       solicitation for IDSI is 36 to 54 months. The Appellant believes
       that the lower court imposed a harsh and unreasonable
       sentence, given the facts that he is a first time offende[r], that
       he had voluntarily enrolled himself in a therapeutic counseling
       program, and that he had posted his ad in the adult section of
       Craig’s [L]ist, he was not soliciting sex with a minor.

             The Appellant asserts that given the circumstances
       presented herein, this sentence was inconsistent with the
       Sentencing Guidelines.       The Appellant contends that the
       Sentencing Guidelines had considered the age of the victim since
       the offense involves the solicitation for IDSI – child less than 16
       years of age. He submits that the sentencing judge’s focus on
       the fact the age of the child was in error. As such, the Appellant
       urges this Court to review his sentence.

Anders Brief, p. 9.



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      Further, even had Appellant stated a substantial question for review,

we would affirm on the merits. We review discretionary aspects of sentence

claims under the following standard of review:

      [S]entencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias
      or ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

      Initially, where a sentencing judge had the benefit of a presentence

investigation report, it is presumed that the judge was aware of all relevant

information   regarding   the   defendant’s   character   and   weighed       those

considerations along with any mitigating factors.          Commonwealth v.

Boyer, 856 A.2d 149, 154 (Pa.Super.2004).

      Additionally, the sentencing guidelines are merely advisory in nature.

See Commonwealth v. Walls, 926 A.2d 957, 964 (Pa.2007) (“[T]he

guidelines have no binding effect, create no presumption in sentencing, and

do not predominate over other sentencing factors – they are advisory

guideposts that are valuable, may provide an essential starting point, and

that must be respected and considered; they recommend, however, rather

than require a particular sentence.”).        “[I]t is well-established that a

sentencing court can impose a sentence that is the maximum period

authorized by the statute, 42 Pa.C.S. § 9756(a).”          Commonwealth v.

Saranchak, 675 A.2d 268, 277 n. 17 (Pa.1996).

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      Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion. See generally N.T. 3/17/2015. Instead, the trial

court imposed a sentence that was consistent with the protection of the

public, took into account the gravity of the offense as it related to the impact

on the life of the victim and on the community, and considered the

Appellant’s rehabilitative needs, as required by 42 Pa.C.S. § 9721(b). Id.

      The trial court explained the imposition of Appellant’s sentence thusly:

            In this case, prior to imposing sentence, this [c]ourt had
      the benefit of a presentence investigative report, which was
      reviewed in its entirety. As such, this [c]ourt was aware of and
      weighted relevant information regarding the Appellant’s
      character as well as any mitigating factors. This [c]ourt was
      aware of Appellant’s prior record score of zero and that he was
      not deemed a sexually violent predator. This [c]ourt also heard
      testimony from Appellant and his pastor. This [c]ourt also
      addressed Appellant’s attitude toward his responsibility for his
      actions, particularly his statement “It wasn’t my intent to lure an
      underage person” despite the fact that appellant continued to
      exchange messages of a sexual nature with an individual he
      believed to be a minor child. This [c]ourt further stated on the
      record that it considered the punishment, rehabilitation,
      deterrence, and incapacitation purposes of sentencing.
      Appellant’s steps toward rehabilitation do not completely negate
      the fact that he sent graphic, sexually explicit messages to a
      person he believed to be a fourteen year old girl over three (3)
      days. Appellant further made plans to have sexual relations with
      this child and travelled from the Allentown area to Scranton to
      engage in intercourse. There is nothing in the record to suggest
      that, had it not been law enforcement at the meet location,
      Appellant would [not] have engaged in deviate sexual
      intercourse with a minor child. In Appellant’s own words, his
      “desire to want to have sexual relations at that moment was
      greater than me understanding between right and wrong.” This
      sort of behavior, the inability to discern between what is right,
      wrong, and illegal based on one’s own wants and impulses, is
      the type of conduct that fits squarely into the sentencing
      purposes.      This [c]ourt clearly considered the particular

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      circumstances of the offenses committed, the impact on the
      community, the need to deter Appellant and others from
      committing this type of offense, and the protection of the
      community at large. Appellant was then sentenced within the
      guidelines for the offenses committed. Appellant was sentenced
      to forty-eight (48) to ninety-six (96) months’ imprisonment. The
      maximum sentence for Solicitation for Involuntary Deviate
      Sexual Intercourse with a Person Less than 16 years old is two
      hundred and forty (240) months.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed February 11, 2016, pp. 9-10

(internal record citations omitted); see also N.T. 3/17/2015, pp. 4-8.

      We find no abuse of discretion in the trial court’s imposition of

Appellant’s standard range sentence. Accordingly, Appellant’s excessiveness

claim fails on the merits.

      We agree with counsel that Appellant’s claim is wholly frivolous.

Moreover, our independent review of the record has revealed no other

preserved issues of arguable merit. Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.        Counsel’s petition to withdraw

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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