J-S52022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

REGINALD JAMES GAMBLE

                            Appellant                    No. 402 MDA 2017


            Appeal from the Judgment of Sentence February 6, 2017
                In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0000772-2016


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 18, 2017

        Reginald James Gamble appeals from his judgment of sentence,

entered in the Court of Common Pleas of Adams County, following his

conviction for delivery of a controlled substance.1 Gamble’s counsel seeks to

withdraw pursuant to Anders v. California, 368 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

grant counsel’s petition to withdraw and affirm Gamble’s judgment of

sentence.

        The trial court stated the facts of this case as follows:

              On June 15, 2016[,] at approximately 7:30 P.M.[,]
        Detective Wm. T. Hartlaub of the Conewago Township Police
        Department met with a confidential informant (“C.I.”) at an
        undisclosed location. C.I. advised that he/she spoke with Jamie
____________________________________________


1
    35 P.S. § 780-113(30)(a).
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        Smith that day via text message and that Smith stated that she
        had marijuana and cocaine to sell. C.I. had previously met
        Smith and had purchased directly from her in the past. On June
        15, 2016, C.I. and Smith through text messages and telephone
        calls made arrangements to meet at the Sunoco Station located
        at 45 West Hanover Street in Bonneauville Borough, Adams
        County, PA. Smith agreed to sell C.I. a quarter ounce of
        marijuana for $120.00 and a half gram of cocaine for $150.00.
        Prior to the hand[-]to[-]hand buy, Detective Hartlaub searched
        C.I. and C.I.’s vehicle for any money and/or controlled substance
        and failed to locate either. At approximately 8:00 P.M.[,] C.I.
        pulled into the Sunoco Station parking lot with Detective Harlaub
        as a passenger. Smith was driving her vehicle with an unknown
        African-American male as her passenger.          C.I. approached
        Smith’s vehicle and handed Smith U.S. currency in exchange for
        a knotted baggie of suspected marijuana and a knotted baggie of
        suspected cocaine.

              C.I. turned over the baggies to police, and police followed
        Smith’s vehicle.    Police conducted a traffic stop, and the
        unknown male in Smith’s car was identified as [Gamble].
        [Gamble] was searched incident to arrest, and police located a
        black digital scale and over $200.00 in U.S. currency on his
        person. Police located the photocopied currency provided to C.I.
        for the exchange in the center console of Smith’s vehicle. Police
        also located an eye lens contact case containing suspected
        cocaine in Smith’s car.     After being read her [Miranda2]
        Warnings, Smith confessed that the marijuana was hers and that
        the cocaine was [Gamble]’s. The substance in the baggie and
        the eye lens contact case tested positive for the presence of
        cocaine.

              On December 5th, 2016, [Gamble] entered an open guilty
        plea to Count 1, Delivery of a Controlled Substance, as an
        ungraded felony.     On February 6th, 2017, [Gamble] was
        sentenced to serve no less than one (1) year nor more than
        three (3) years in a State Correctional Institution subject to
        standard conditions.   Subsequently, on February 13, 2017,
        [Gamble] filed a Motion for Reconsideration of Sentence. This
        Court denied [Gambel]’s Motion for Reconsideration of Sentence
____________________________________________


2
    Miranda v. Ariz., 384 U.S. 436 (1966).



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      on February 15, 2017. [Gamble] filed his Notice of Appeal and
      Concise Statement of Matters Complained of on Appeal on
      February 28, 2017 and March 20, 2017 respectively.

Trial Court Opinion, 3/23/2017, at 1-2 (footnote removed). The trial court

issued its Pa.R.A.P. 1925(a) opinion on March 22, 2017. On May 30, 2017,

Gamble’s counsel filed a statement of intent to file an Anders brief pursuant

to Rule 1925(c)(4).

      Counsel has filed a petition to withdraw pursuant to the requirements

set forth in Anders and Santiago. Our Supreme Court in Santiago held:

      [I]n 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; and (3) state counsel’s
      reasons for concluding the appeal is frivolous.

Santiago, 978 A.2d at 361.       Once Counsel has satisfied the procedural

requirements of Santiago, this Court engages in an independent evaluation

of the record to determine if the claims on appeal are wholly frivolous.

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).

      Counsel’s brief satisfies the necessary procedural requirements.    Her

brief provides “a summary of the procedural history and facts, with citations

to the record.” Santiago, 978 A.2d at 361; Brief of Appellant, at 7-8. She

further provides a review of the record, and raises the issue she believes

arguably supports an appeal.       Santiago, 987 A.2d at 360; Brief of

Appellant, at 11-13. Counsel’s brief also states her conclusion that the claim

is frivolous, and she provides her reasoning for this conclusion. Santiago,



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978 A.2d at 360; Brief of Appellant, at 11, 13.               Lastly, counsel notified

Gamble of her request to withdraw and provided him with a copy of the brief

and a letter explaining his right to retain new counsel or proceed pro se as to

any issues he believes might have merit.           Counsel having satisfied the

procedural requirements for withdrawal, we must now examine Gamble’s

claim to determine if the claim is frivolous.           Anders, 386 U.S. at 744;

Rojas, 874 A.2d at 639.

      Gamble raises the following issue for our review:

      Whether the Court abused its discretion in sentencing Defendant
      to no less than one to no more than three [years’ incarceration]
      instead of [sentencing] within the mitigated guideline range.

Brief of Appellant, at 6.

      Gamble’s only claim is the trial court abused its discretion in not

sentencing him without considering his mitigating factors to sentence him

within the mitigated guidelines.      Gamble’s claim involves a discretionary

aspect of his sentence.       “It is well-settled that appeals of discretionary

aspects   of   a   sentence   are   not    reviewable    as    a   matter   of   right.”

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

Before a challenge to the discretionary aspects of a sentence will be heard

on the merits, an appellant must set forth in his brief a separate and concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence. Pa.R.A.P. 2119(f). An appeal of the

discretionary aspects of a sentence will only be granted when there is a

substantial question that the sentence imposed was not appropriate under

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the Sentencing Code. 42 Pa.C.S. § 9781. Historically, this Court has found a

substantial question exists for the purposes of section 9781 when the

Pa.R.A.P. 2119(f) statement reveals a plausible argument that procedures

followed by the sentencing court were either inconsistent with a specific

provision of the Sentencing Code or contrary to the fundamental norms

underlying the sentencing process. Commonwealth v. Goggins, 748 A.2d

721, 726 (Pa. Super. 2000) (en banc) (citations omitted).

      Gamble has included the necessary Rule 2119(f) statement in his brief.

In his statement, Gamble argues that there was a substantial question that

the trial court abused its discretion in not considering his mitigating factors

at the time of sentencing. Brief of Appellant, at 11. We have consistently

held that a contention that the trial court did not adequately consider

mitigating circumstances does not raise a substantial question sufficient to

justify appellant review of the merits of such a claim. Commonwealth v.

Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006). Therefore, we find that

Gamble has not presented a substantial question for our review, and review

of the merits of his challenge to the discretionary aspects of his sentence is

unwarranted.

      In conclusion, we find counsel has satisfied all procedural requirements

for withdrawal, and Gamble’s sentencing claim is frivolous.

      Judgment of Sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2017




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