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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                          :
JUSTIN SCOTT DIGNARD,                     :        No. 1629 WDA 2017
                                          :
                          Appellant       :


            Appeal from the Judgment of Sentence, August 9, 2016,
               in the Court of Common Pleas of Venango County
               Criminal Division at No. CP-61-CR-0000143-2016


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 15, 2018

        Justin Scott Dignard appeals from the August 9, 20161 judgment of

sentence entered in the Court of Common Pleas of Venango County following

his convictions for robbery—threat of serious bodily injury and robbery

(felony 2).2    Matthew C. Parson, Esq. (“Attorney Parson”) has filed an

application to withdraw, alleging that the appeal is frivolous, accompanied by




1 Appellant’s appeal rights were reinstated pursuant to a petition filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546,
proceeding. Appellant’s appellate counsel mistakenly stated that he appealed
to this court from the order of October 2, 2017, which granted the PCRA
petition. Appellant’s appeal properly lies from the judgment of sentence,
dated August 9, 2016. The caption originally stated that the appeal was from
the PCRA order. We have amended the caption accordingly.

2   18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 3701(a)(1)(v), respectively.
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an Anders brief.3 After careful review, we grant counsel’s petition to withdraw

and affirm the judgment of sentence.

      The following factual and procedural history as originally set forth by the

trial court is as follows:

             The above-captioned cases arise out of two armed
             robberies of businesses located in Oil City,
             Pennsylvania, occurring on December 30, 2011 and
             June 1, 2012, respectively.     [Appellant] eluded
             authorities for a lengthy period of time, but was
             eventually arrested . . . .

             [Appellant] signed a plea agreement dated June 2,
             2016, in which he pled guilty to Count 2, Robbery-
             Threat of Serious Bodily Injury (Felony 1) at
             CR No. 143-2016, and Count 1, Robbery (Felony 2) at
             CR No. 142-2016. The Commonwealth recommended
             [appellant] serve standard range sentences at both
             counts and that they be served concurrently.

             Prior to sentencing, [appellant] underwent a
             pre-sentence investigation and his prior record score
             was calculated as being a three (3). The guidelines
             called for a sentence of fifteen (15) to
             twenty-one (21) months, and the statutory minimum
             and maximum sentences were sixty (60) to one
             hundred and twenty (120) months at Count 1, Felony
             2 Robbery. The guidelines called for a sentence of
             forty-two (42) to fifty-four (54) months, and the
             statutory minimum and maximum sentences were
             one hundred and twenty (120) to two hundred and
             forty [240] months at Count 2, Felony 1 Robbery-
             Threat of Serious Bodily Injury.

             On August 9, 2016, [appellant] was sentenced by this
             Court at CR No. 142-2016 on Count 1, Felony 2
             Robbery as follows:


3See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).


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               pay the costs of prosecution, all other
               costs, pay a fine $0 in order to facilitate
               restitution, make restitution payable to
               the Clerk of Court[s] of Venango County,
               in the sum of $900, for the use of Leroy
               and Elizabeth George, said restitution
               shall be paid in ten (10) years and is a
               condition of sentence, and undergo an
               imprisonment in a STATE INSTITUTION
               OF THE DEPARTMENT OF CORRECTIONS
               for a minimum of which shall be
               twenty-one (21) months, the maximum of
               which shall be ten (10) years.

          Judge Boyer’s August 9, 2016 Amended          Sentence
          Order (emphasis in original). In the same     sentence
          order, [appellant] was sentenced by this      Court at
          CR No. 143-2016 on Count 2, Felony 1          Robbery-
          Threat of Serious Bodily Injury as follows:

               pay the costs of prosecution, all other
               costs, pay a fine $0 in order to facilitate
               restitution, make restitution payable to
               the Clerk of Court[s] of Venango County,
               in the sum of $6,130, for the use of
               Thorne’s Market, 809 Grandview Road, Oil
               City,     Pennsylvania,     16301    (Said
               Restitution shall be joint and several with
               codefendant,      Adrian     Dignard     at
               C.R. No. 78-2016.) said restitution shall
               be paid with [sic] ten (10) years and is a
               condition of sentence, and undergo an
               imprisonment in a STATE INSTITUTION
               OF THE DEPARTMENT OF CORRECTIONS
               for a minimum of which shall be forty-two
               (42) months, the maximum of which shall
               be twenty (20) years.

          Id. (emphasis in original). The Court stated that the
          sentences imposed at CR No. 142-2016 and
          CR No. 143-2016 were to be served concurrently. Id.




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              [Appellant] filed a timely notice of appeal, and
              [appellant] filed the instant Concise Statement on
              November 17, 2017.[4]

Trial court opinion, 12/8/175 at 1-3.

         Appellant raises the following issue for this court’s review: “Whether

the Sentencing Court erred as a matter of law or abused its discretion when

the Sentencing Court ordered a Sentence to the maximum of the statute for

the sole basis of ensuring restitution was paid in full[?]” (Appellant’s brief

at 5.)

         On February 16, 2018, Attorney Parson filed in this court a petition for

leave to withdraw as counsel, because he found the appeal to be “wholly

frivolous,” and an Anders brief. (Petition for leave to withdraw as counsel,

2/16/18 at 1, ¶ 4 (emphasis in original).) This court denied the petition to

withdraw on the basis that Attorney Parson failed to comply with the third and

fourth requirements of Santiago in that he failed to set forth his conclusion

that the appeal was frivolous and failed to set forth his reasons for concluding

that the appeal was frivolous.




4 Appellant filed for reinstatement of his appeal rights due to ineffective
assistance of counsel under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. On October 2, 2017, the trial court granted the
PCRA petition and ordered Attorney Parson, appellant’s PCRA counsel, to file
a direct appeal on behalf of appellant from the judgment of sentence.
Attorney Parson filed the notice of appeal on October 26, 2017.

5The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on December 8,
2017.


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     When this court denied the petition to withdraw, we remanded this case

to the trial court with instruction to counsel to file either a compliant

Anders/Santiago brief or an advocate’s brief within 30 days of the date of

this court’s memorandum. Attorney Parson filed a timely Anders brief on

June 20, 2018.

                 A request by appointed counsel to withdraw
           pursuant to Anders and Santiago gives rise to
           certain requirements and obligations, for both
           appointed counsel and this Court. Commonwealth
           v. Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
           2015).

                 These requirements and the significant
                 protection they provide to an Anders
                 appellant arise because a criminal
                 defendant has a constitutional right to a
                 direct appeal and to counsel on that
                 appeal. Commonwealth v. Woods, 939
                 A.2d 896, 898 (Pa.Super. 2007). This
                 Court     has     summarized        these
                 requirements 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


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                      petition and brief to the
                      appellant,     advising      the
                      appellant of the right to retain
                      new counsel, proceed pro se
                      or raise additional points
                      worthy     of    the    Court’s
                      attention.

                Woods, 939       A.2d   at   898   (citations
                omitted).

                There are also requirements as to the
                precise requirements of an Anders brief:

                      [T]he Anders brief that
                      accompanies court-appointed
                      counsel’s petition to withdraw
                      . . . 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 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.

          Id. at 1248. If this Court determines that appointed
          counsel has met these obligations, it is then our
          responsibility “to make a full examination of the
          proceedings and make an independent judgment to
          decide whether the appeal is in fact wholly frivolous.”
          Id. at 1248. In so doing, we review not only the


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            issues identified by appointed counsel in the Anders
            brief, but examine all of the proceedings to “make
            certain that appointed counsel has not overlooked the
            existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

      Regarding the requirements of Anders, Attorney Parson has filed a

petition that avers that, after a conscientious examination of the record, he

finds the appeal to be wholly frivolous. He has also filed a brief that attempts

to set forth the issues that might arguably support the appeal. He identifies

the issue in the statement of questions involved in the brief as “Whether the

Sentencing Court erred as a matter of law or abused its discretion when the

Sentencing Court ordered a Sentence to the maximum of the statute for the

sole basis of ensuring restitution was paid in full[?]” (Anders brief at 5.) The

body of the argument section of the brief addresses the issue contained in the

statement of questions involved, so the issue set forth in the brief complies

with Anders. A review of the record reveals that Attorney Parson complied

with the requirements of Anders concerning notification to appellant.

      With respect to the requirements of Santiago, Attorney Parson has

provided a summary of the procedural history and facts. He has also set forth

his conclusion that the appeal is frivolous.    Attorney Parson reaches this

conclusion because, based on his review of the relevant case law, the trial

court’s imposition of a sentence with the maximum sentence at the statutory

limit does not constitute an abuse of discretion.




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        Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5. As Attorney Parson has fulfilled

the requirements of Santiago, we now turn to the merits of appellant’s

appeal.

        The possible issue raised in the brief is that the trial court erred as a

matter of law or abused its discretion when it ordered a sentence to the

statutory maximum for the sole basis of ensuring that restitution was paid in

full.

        In reviewing the record, the trial court had the benefit of a pre-sentence

investigation report when it imposed the sentence on appellant. The trial court

imposed minimum sentences within the sentencing guidelines for both robbery

convictions. The trial court imposed the statutory maximums for both robbery

convictions and ran the sentences concurrent to one another.                At the

sentencing hearing, the trial court initially stated, “I am putting the maximum

period of supervision in, that’s because of the restitution.”             (Notes of

testimony, 8/9/16 at 22.) However, later at the sentencing hearing, the trial

court attempted to clarify the sentencing with respect to restitution:

              At the restitution I need to say, restitution shall be
              paid within twenty years. Restitution is a condition of
              sentence. Now that’s on the---wow that’s---no I can’t
              do that because of the ten years. I need to say on
              both of these cases, restitution shall be paid within ten
              years and is a condition of sentence, because the max


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            on that $6,130 is the ten year sentence, it can’t
            exceed that. So restitution has to be paid in ten years
            as a condition of sentence on both. Okay.

Id. at 26-27.

      In addition, while discussing the imposition of the sentence, the trial

court stated, “[a]ny lesser sentence would depreciate the seriousness of the

offense.” (Id. at 25.)

      After a review of the sentencing hearing transcript, it is apparent that

the trial court did not impose the statutory maximum sentences in order for

appellant to pay restitution. One can see how appellant might think that the

trial court based the sentence on restitution, but a review of the transcript as

a whole yields a different interpretation. Attorney Parson is correct when he

determined that this issue was frivolous         as it is    not an accurate

characterization of the trial court’s reasoning for the sentence. On the record,

the trial court stated that it imposed the sentences due to the seriousness of

the offenses. An appeal based on this issue of a sentence based on restitution

would be frivolous. This court reviews challenges to discretionary aspects of

sentencing based on whether there was a manifest abuse of discretion.

Commonwealth v. Mola, 838 A.2d 791, 792 n.2 (Pa.Super. 2003). This

court agrees with Attorney Parson that the trial court did not commit a

manifest abuse of discretion.




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     Additionally, our independent review of the entire record has not

disclosed any potentially non-frivolous issues. Consequently, we grant

counsel’s petition to withdraw, and we affirm the judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2018




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