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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

BRYANT DAVIS,

                          Appellant                  No. 1536 EDA 2017


       Appeal from the Judgment of Sentence Entered April 11, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005597-2016


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 05, 2019

      Appellant, Bryant Davis, appeals from the judgment of sentence of 11½

to 23 months’ incarceration, followed by 15 years’ probation, imposed after

he pled guilty to possession of a controlled substance with intent to deliver,

criminal conspiracy, and carrying a firearm without a license.      On appeal,

Appellant seeks to challenge the discretionary aspects of his sentence.

Additionally, Appellant’s counsel, Lawrence J. Bozzelli, Esq., seeks to withdraw

his representation of Appellant pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

After careful review, we affirm Appellant’s judgment of sentence and grant

counsel’s petition to withdraw.

      The facts of Appellant’s case were summarized by the trial court in its

opinion, and need not be reiterated for purposes of this appeal. See Trial
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Court Opinion (TCO), 8/2/18, at 1 n.1. Appellant pled guilty to the above-

stated offenses on February 10, 2017, and was sentenced to the aggregate

term set forth, supra, on April 11, 2017. Appellant did not file a post-sentence

motion; instead, he filed a timely notice of appeal on April 28, 2017.

      During the pendency of this appeal, we remanded for the trial court to

discern the status of Appellant’s legal representation. See Per Curiam Order,

8/25/17. On December 15, 2017, the trial court appointed Attorney Bozzelli

to represent Appellant.   Counsel thereafter complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) statement, setting forth two issues for our

review:

      1. Did the trial court abuse its discretion when it sentenced
         [Appellant] to a period of 11½ - 23 months[’] incarceration
         followed by 15 years of reporting probation…[?] There was
         insufficient reasoning on the record as to why this was an
         adequate sentence.

      2. Did the trial court abuse its discretion when it sentenced
         [Appellant] to attend parenting classes as a condition of
         probation where (a) the underlying offenses did not involve
         harm to minors and (b) there appears to be no justification in
         the pre-sentence report [that] would give rise for a need for
         [Appellant] to attend parenting classes?

Rule 1925(b) Statement, 1/9/18, at 1. On August 2, 2018, the trial court

issued a Rule 1925(a) opinion explaining why Appellant’s issues are meritless.

      On August 16, 2018, Attorney Bozzelli filed with this Court a petition to

withdraw from representing Appellant. That same day, counsel also filed an

Anders brief, discussing the above-stated issues and concluding that they are




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frivolous, and that Appellant has no other, non-frivolous issues he could

pursue herein. Accordingly,

     this Court must first pass upon counsel’s petition to withdraw
     before reviewing the merits of the underlying issues presented by
     [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
     290 (Pa. Super. 2007) (en banc).

     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 also must provide a copy of
     the Anders brief to his client. Attending the brief must be a letter
     that advises the client of his 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), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct an independent review of the

record to discern if there are any additional, non-frivolous issues overlooked




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by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (citations and footnote omitted).

      In this case, Attorney Bozzelli’s Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history, he refers to portions of the record that could arguably

support Appellant’s claim, and he sets forth his conclusion that Appellant’s

appeal is frivolous.    He also explains his reasons for reaching that

determination, and supports his rationale with citations to the record and

pertinent legal authority.   Attorney Bozzelli also states in his petition to

withdraw that he has supplied Appellant with a copy of his Anders brief.

Additionally, he attached a letter directed to Appellant to his petition to

withdraw, in which he informed Appellant of the rights enumerated in

Nischan. Accordingly, counsel has complied with the technical requirements

for withdrawal. We will now independently review the record to determine if

Appellant’s issues are frivolous, and to ascertain if there are any other, non-

frivolous claims he could pursue on appeal.

      Appellant’s two issues involve challenges to the discretionary aspects of

his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         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

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         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).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
      appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
      the discretionary aspects of a sentence are generally waived if
      they are not raised at the sentencing hearing or in a motion to
      modify the sentence imposed. Commonwealth v. Mann, 820
      A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
      A.2d 599 (2003).

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Commonwealth v. Paul,
      925 A.2d 825, 828 (Pa. Super. 2007). 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 of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”
      Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      In the case sub judice, we must deem Appellant’s issues frivolous

because, as Attorney Bozzelli acknowledges in his Anders brief, Appellant’s

prior counsel failed to file a post-sentence motion preserving his sentencing

claims for our review. See Anders Brief at 11. “It is well settled that an

[a]ppellant’s challenge to the discretionary aspects of his sentence is waived

if the [a]ppellant has not filed a post-sentence motion challenging the

discretionary aspects with the sentencing court.”       Commonwealth v.




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Bromley, 862 A.2d 598, 603 (Pa. Super. 2004) (citations omitted).1

Additionally, our review of the record reveals no other, non-frivolous issues

that Appellant could raise herein.             Therefore, we affirm his judgment of

sentence and grant counsel’s petition to withdraw.

       Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




____________________________________________


11 The Commonwealth agrees that Appellant’s sentencing claims are waived.
See Commonwealth’s Brief at 9-10. It candidly notes, however, that it
disagrees with the trial court’s imposition of a 15-year probationary sentence,
contending that such a lengthy term is not “the most effective means of
achieving the court’s explicit goal of rehabilitation” for Appellant. Id. at 11.
According to the Commonwealth, “a shorter period [of probation] would have
sufficed to assure the court that [Appellant] was capable of continuing his
recovery without government supervision.” Id. at 12. Nevertheless, as the
Commonwealth acknowledges, Appellant’s only possible recourse for
challenging the discretionary aspects of his sentence is to file a petition under
the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, seeking the
restoration of his post-sentence motion and direct appeal rights based on the
ineffectiveness of his trial counsel for not preserving this, and his other,
sentencing claims. Id. at 10.

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