J-S09019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANK EDWARD PUTNEY

                            Appellant                  No. 982 MDA 2015


            Appeal from the Judgment of Sentence March 11, 2014
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001898-2013


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 29, 2016

        Frank Edward Putney appeals from the judgment of sentence imposed

by the Court of Common Pleas of Lackawanna County following his guilty

plea to simple assault1 and recklessly endangering another person (REAP).2

Putney’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

Putney’s judgment of sentence.

        The trial court summarized the facts of the case as follows:

____________________________________________


1
    18 Pa.C.S. § 2701(a)(3).
2
    18 Pa.C.S. § 2705.
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      On August 21, 2013, the Pennsylvania State Police went to
      [Putney’s] home in response to a phone call from the victim,
      [Putney’s] wife, in which she stated that [Putney] was
      threatening her and their son with a gun. When police arrived at
      [Putney’s] home they found him on the rear deck of the home
      with the firearm.     Following forty minutes of negotiations,
      [Putney] was taken into custody and the firearm was retrieved.
      The weapon was a semiautomatic handgun with one round in the
      chamber and nine in the magazine.

      [Putney’s] wife was then interviewed and stated that the
      following transpired: [Putney] had been drinking all day on their
      deck. She and their son went to confront [Putney] about his
      alcohol abuse and [Putney] became angry. He then went into
      the house, pushed the chair the victim was sitting in toward the
      wall, and chambered a round into the gun. The victim said that
      [Putney] then pointed the gun at her and said, “I will kill you.”
      Their son moved behind [Putney], at which point [Putney]
      turned and pointed the gun at the young man and stated that
      he’d kill them both. [Putney] then went back outside. His wife
      then locked [Putney] out and he began pounding on the door,
      shouting profanities. [Putney’s] son was also interviewed and
      corroborated the victim’s story.

      [Putney’s] version of the events was more flippant. In the
      presentence report, [Putney] said that he was on the deck,
      drinking wine and listening to music. When his wife came out,
      he said, “I will kill you,” just as a figure of speech. [Putney’s]
      reason for having the gun on his person was that he was
      planning on being outside for several hours and had it in case a
      bear came by.

Trial Court Opinion, 10/26/15, at 1-2 (citations omitted).

      On March 11, 2014, the court sentenced Putney to two consecutive

terms of seven to twenty-four months’ incarceration. Putney filed a timely

motion for reconsideration, which the court denied on March 24, 2014.

      Counsel filed an untimely appeal, which this Court quashed by order

filed June 25, 2014. On June 4, 2015, following reinstatement of Putney’s

appellate rights, court-appointed counsel, Kurt T. Lynott, Esquire, filed the


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instant nunc pro tunc appeal, and in response to an order from the trial

court, he filed a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. On October 13, 2015, Attorney Lynott filed a petition to withdraw

and an Anders brief.     The trial court filed its Rule 1925(a) opinion on

October 26, 2015.

     In his Anders brief, the sole issue raised by counsel is whether the

trial court imposed a sentence that was harsh and excessive because the

terms of imprisonment ran consecutively rather than concurrently.

     “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

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).

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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. On

October 7, 2015, counsel provided a copy of the petition and Anders brief to

Putney, along with a letter explaining Putney’s right to raise any claims

directly with the court pro se or to retain private counsel. Accordingly, we

find   counsel   has   met   the    requirements        of    Anders,    Santiago     and

McClendon

       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).

       Putney challenges the discretionary aspects of his sentence. When the

discretionary aspects of a sentence are questioned, an appeal is not

guaranteed as of right.      Commonwealth v. Moore, 617 A.2d 8, 11 (Pa.

Super. 1992).

       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


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      appealed from is not appropriate under the Sentencing Code, 42
      Pa.C.S. § 9781(b).

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation

omitted).

      Putney filed a timely notice of appeal and preserved the sentencing

issue in his motion for reconsideration. The Anders brief filed by counsel

includes a concise statement of reasons relied upon for allowance of appeal

with respect to the discretionary aspects of sentence, as required by

Pa.R.A.P. 2119(f). Accordingly, we proceed to determine if the appellant has

raised a substantial question.

      A defendant may raise a substantial question where he receives
      consecutive sentences within the guideline ranges if the case
      involves circumstances where the application of the guidelines
      would be clearly unreasonable, resulting in an excessive
      sentence; however, a bald claim of excessiveness due to the
      consecutive nature of a sentence will not raise a substantial
      question. See Commonwealth v. Moury, 992 A.2d 162, 171-
      72 (Pa. Super. 2010) (“The imposition of consecutive, rather
      than concurrent, sentences may raise a 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. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).

      In Dodge, this Court found that an excessiveness argument based

upon consecutive sentences may raise a substantial question. The appellant

in Dodge had been sentenced to an aggregate sentence of 40 years and 7

months to 81 years and 2 months’ imprisonment based upon consecutive

sentences for 2 counts of burglary and 38 counts of receiving stolen

property. In contrast, Putney was sentenced to consecutive sentences for


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simple assault and REAP, with an aggregate sentence of 14 to 48 months.

Clearly, this sentencing scheme does not present one of “the most extreme

circumstances.” See Dodge, supra., citing Moury.

       Accordingly, we find that Putney has not raised a substantial question

with regard to sentencing, and therefore is not entitled to relief.3

       Judgment of sentence affirmed.            Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




____________________________________________


3
  Pursuant to the dictates of Commonwealth v. Flowers, 113 A.3d 1246
(Pa. Super. 2015), we have conducted an independent review of the record,
including the transcripts of Putney’s November 18, 2013 guilty plea hearing
and his March 11, 2014 sentencing hearing. We discern no non-frivolous
issues overlooked by counsel.



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