J-S71041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RYAN PATRICK ALLEN

                            Appellant                No. 881 WDA 2015


              Appeal from the Judgment of Sentence May 5, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001767-2014
                            CP-25-CR-0001771-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED DECEMBER 11, 2015

        Ryan Patrick Allen brings this appeal from the judgment of sentence

imposed on May 5, 2015, in the Court of Common Pleas of Erie County.

Concomitant with this appeal, counsel for Allen, Emily M. Merski, Esquire,

has filed an Anders1 brief and petition seeking to withdraw as counsel. A

jury convicted Allen of intimidation of a victim/witness at Docket 1767-

2014,2 and unlawful restraint-involuntary servitude, simple assault, and

recklessly endangering another person (REAP) at Docket 1771-2014.3 The
____________________________________________


1
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009).
2
    18 Pa.C.S. § 4952(a)(3).
3
    18 Pa.C.S. §§ 2902(a)(2), 2701(a)(1) and 2705.
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trial court found Allen guilty of the summary offense of harassment at

Docket 1771-2014.4        At the latter docket, Docket 1771-2014, the trial court

sentenced Allen to an aggregate term of 24 to 48 months’ incarceration. At

Docket 1767-2014, the trial court sentenced Allen to serve a term of 12 to

24 months’ incarceration, consecutive to the sentence imposed at Docket

1771-2014. The issue identified in the Anders brief is a challenge to the

discretionary aspects of the sentence. Based upon the following, we affirm

the judgment of sentence and grant counsel’s request to withdraw from

representation.

        This case arises from a physical altercation Allen had with his girlfriend

while operating his car and her attempt to flee, and his subsequent effort to

keep her from testifying against him.          Allen was convicted and sentenced as

stated above. No post-sentence motion was filed. On June 3, 2015, Allen

filed this appeal.5
____________________________________________


4
    18 Pa.C.S. § 2709(a)(1).
5
  Allen’s trial counsel, Kenneth A. Bickel, Esquire, timely complied with the
order of the trial court to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. The concise statement asserts that “[t]he trial
court committed an error of law and or abused its discretion at the time of
sentence when the court departed from the sentencing guidelines and gave
the defendant a sentence higher than the aggravated range of the
sentencing guidelines.” Statement of Matters Complained of on Appeal,
6/18/2015, at 2, ¶B.

We note the concise statement mischaracterizes the sentences, which are,
as will be discussed, standard range sentences. We further note Attorney
Merski did not append the concise statement to the brief as required by
(Footnote Continued Next Page)


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        On June 29, 2015, Attorney Merski entered her appearance with this

Court on behalf of Allen. On September 10, 2015, she filed an Anders brief,

asserting that Allen’s sentencing issue is frivolous, and that there are no

other non-frivolous issues he could assert on appeal.       On September 11,

2015, she filed a petition seeking leave to withdraw from representation.

         Prior to addressing the issues identified in this appeal, we must

review counsel’s petition to withdraw. Commonwealth v. Daniels, 999

A.2d 590, 593 (Pa. Super. 2010) (“When presented with an Anders brief,

this Court may not review the merits of the underlying issues without first

passing on the request to withdraw.”) (citation omitted).       Specifically, we

note:

        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 Commonwealth v.
        Santiago, 602 Pa. 159, 978 A.2d 349, 361 (Pa. 2009). 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
                       _______________________
(Footnote Continued)

Pa.R.A.P. 2111(d). However, we will not find the brief defective for this lone
procedural misstep.



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           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 the appellant. Attending the brief must be 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, 2007 PA Super
     199, 928 A.2d 349, 353 (Pa. Super. 2007); see
     Commonwealth v. Daniels, 2010 PA Super 112, 999 A.2d 590,
     594 (Pa. Super. 2010); Commonwealth v. Millisock, 2005 PA
     Super 147, 873 A.2d 748, 751-52 (Pa. Super. 2005).

Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014).

     Here, counsel has filed a petition for leave to withdraw, in which she

states her belief that the appeal is frivolous, and has filed an Anders brief

pursuant to the dictates of Santiago, supra, 978 A.2d at 361. Counsel has

provided this Court with a copy of the letter she mailed to Allen, advising

him of his right to retain new counsel or proceed pro se, and the letter to

Allen reflects counsel’s enclosure of a copy of the Anders brief and her

petition. Our review confirms that counsel has substantially complied with

the technical and procedural requirements of Anders and Santiago, and

that there is no response from Allen. Therefore, we proceed “to make a full

examination of the proceedings and make an independent judgment to

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

Flowers, 113 A.3d 1246, 1248 (Pa. Super. 2015) (quotations and citation

omitted). In so doing, we review not only the issues identified by appointed

counsel in the Anders brief, but examine all of the proceedings to “make

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certain that appointed counsel has not overlooked the existence of

potentially non-frivolous issues.” Id. at 1249 (footnote omitted).

       The issue framed in the Anders brief is as follows: “Whether [Allen’s]

sentence is manifestly excessive, clearly unreasonable and inconsistent with

the objectives of the Sentencing Code.” Anders Brief at 3.           As such, the

Anders brief identifies a discretionary sentencing claim.

       It is well settled that “[i]ssues challenging the discretionary aspects of

sentence must be raised in a post-sentence motion or by presenting

the   claim to the trial court during the sentencing proceedings. Absent such

efforts, an objection to a discretionary         aspect of a sentence is waived.”

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc) (quotations and citation omitted).         The record reflects Allen did not

object at the sentencing hearing or file a motion to reconsider and modify

sentence.6      As such, the sentencing issue is waived.       In any event, we

would agree with counsel’s assessment that the claim is frivolous.

       Where an appellant challenges the discretionary aspects of a sentence,

the appellant is

       required to “set forth in his brief a 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).
____________________________________________


6
  At the sentencing hearing, Allen stated he waived his right to file post-
sentence motions, including a motion to reconsider sentence. See N.T.,
5/5/2015, at 12–13.




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         The concise statement must specify where the sentence
         falls in relation to the sentencing guidelines and what
         particular provision of the code it violates. Additionally,
         the statement must specify what fundamental norm the
         sentence violates and the manner in which it violates that
         norm. If the statement meets these requirements, we can
         decide whether a substantial question exists.

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (case

citation omitted). Here, the Rule 2119(f) statement in the Anders brief sets

forth the claim that the sentencing court sentenced within the guidelines but

failed to consider the factors set out in 42 Pa.C.S. § 9721(b).         Section

9721(b) requires the sentencing court to “follow the general principle that

the sentence imposed should call for confinement that is consistent with the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant.”      42 Pa.C.S. § 9721(b).        This Court has stated:

“[A]rguments that the sentencing court failed to consider the factors

proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas

a statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721, has been rejected.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(quotations and citation omitted), appeal denied, 104 A.3d 1, (Pa. 2014).

Assuming, arguendo, a substantial question exists, we note below the

discussion that occurred at sentencing, including the court’s explanation of

the sentence.

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      Prior to imposition of sentence, trial counsel informed the court that

Allen had faced a felony aggravated assault charge and a felony intimidation

of a witness charge but the jury convicted him on lesser charges; that the

victim was Allen’s long-time girlfriend, and “she even said nothing like this

has ever happened before between the parties”; and that “this wasn’t a

violent or tumultuous relationship, but there were drugs involved, and it was

like oil and water, and this was the subsequent result.” N.T., 5/5/2015, at

5-6. Trial counsel suggested to the court that “this is a misdemeanor level

offense and I do ask the court to run these sentences concurrent.” Id. at 6.

Thereafter, Allen told the trial judge that he was “here today to accept

responsibility for what happened, and hopefully I can get this behind me as

soon as possible.” Id. at 6. The trial judge told Allen that he had reviewed

Allen’s letter to the court, and he “interpret[ed] it as a letter where [Allen] is

… remorseful for what he has done.”               Id. at 6–7.        Finally, the

Commonwealth presented its argument that the victim was put in grave

danger, that Allen involved his mother in a scheme to get the victim to say

what he wanted her to say at the preliminary hearing, and that he was on

parole at the time of the offenses. Id. at 7. The Commonwealth requested

the court to sentence Allen in the aggravated range and to run the sentences

consecutively “at least in terms of the intimidation case and the unlawful

restraints at the other docket.” Id. at 8.




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      The trial court then proceeded to sentence Allen to an aggregate term

of 36 to 72 months’ incarceration, stating:

      All right. Well, I’ve considered a number of things here. I’ve
      considered the pre-sentence investigative report in its entirety,
      and, as I’ve indicated, I’ve made that a part of the record. I’ve
      considered the Pennsylvania Sentencing Code and all its factors,
      the guidelines, and the various statements made here to me
      today. I’ve also considered in this case the letter that was
      submitted by [Allen].

      Well, Mr. Allen, I think as you stand before me today you are
      sorry. I think if you could turn back the clock you might feel
      differently. But what is troubling about this case are a couple
      different things. First of all, it’s very serious. The victim was put
      in grave danger, could have been very, very seriously injured,
      plus she was injured as far as the simple assault was concerned.
      And then to engage in conduct to try to convince her not to
      testify in the case and come forward, you know, strikes really at
      the heart of our system of justice.

      And I can’t ignore the fact that you were on supervision at the
      time and that you’ve got an extensive criminal record. And
      what’s troubling about that is that you’ve done state time,
      you’ve done county time, you’ve had probation, and you just
      don’t seem to be able to stay crime free. I think you’ve got the
      capability, I think as bad as your record is and as serious as
      these offenses are you have rehabilitative potential, but you’re
      just not following through. You did some good things by getting
      employed, but you just don’t follow through and you just can’t
      seem to keep a lid on these impulses, and I’ve got to punish you
      for that.

      There would be grounds to go into the aggravated range of the
      sentencing guidelines because of the fact that you were on
      supervision at the time, but I’m not going to do that. I think
      there’s enough room within the confines of the standard range to
      give you a sentence which I think is appropriate. I’m not going
      to run all the sentences consecutively, but I’m going to run some
      of the sentences consecutively, because I think the harm caused
      here and the nature of the offenses and your conduct and given
      your background that that is appropriate. ….


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Id. at 8–10.

       The trial court sentenced Allen as follows:

       At Docket 1771-2014,

           Count 2, unlawful restraint/involuntary servitude — 12 to
           24 months’ incarceration, concurrent with the sentence
           imposed at Count 3;

           Count 3, simple assault — 12 to 24 months’ incarceration,
           consecutive to Allen’s current state prison sentence;

           Count 4, REAP — 12 to 24 months’ incarceration,
           consecutive to the sentence imposed at Count 3.

       At Docket 1767-2014,

           Count 1, intimidation of a witness/victim — 12 to 24
           months’ incarceration, consecutive the sentence imposed
           at Count 4 of Docket 1771-2014.

See id. at 10–12.7 All of the sentences were standard range sentences.8

____________________________________________


7
  At Count 5 of Docket 1771-2014, for the summary offense of harassment,
the court ordered Allen to pay costs only, with no further penalty. See N.T.,
5/5/2015, at 11.
8
  At Docket 1767-2014, for Count 1, intimidation of a victim/witness, with an
Offense Gravity Score (OGS) of 5 and a Prior Record Score (PRS) of RFEL,
the standard range under the Pennsylvania Sentencing Guidelines is 12
months’ incarceration, and the statutory maximum is 24 months’
incarceration.

      At Docket 1771-2014, at for Count 2, unlawful restraint-involuntary
servitude, with an OGS of 3 and a PRS of RFEL, the standard range is 12 to
18 months’ incarceration. For Count 3, simple assault, with an OGS of 3 and
a PRS of RFEL, the standard range is 12 months’ incarceration, and the
statutory maximum is 24 months. For Count 4, REAP, with an OGS of 3 and
a PRS of RFEL, the standard range is 12 months’ incarceration, and the
statutory maximum is 24 months’ incarceration.



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       Our Supreme Court has ruled that “[w]here pre-sentence reports

exist, we shall continue to presume that the sentencing judge was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.” Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988). Here, the court had the benefit of a

pre-sentence report.   Furthermore, the court’s explanation of its sentence,

reflects that the sentencing judge fully considered all relevant sentencing

factors.

      In sum, had the issue been preserved, we would agree with counsel

that the challenge to the discretionary aspects of sentencing is frivolous.

Moreover, we have conducted “a full examination of the proceedings” and

conclude that “the appeal is in fact wholly frivolous.” Flowers, supra, 113

A.3d at 1248. Accordingly, we affirm Allen’s judgment of sentence and grant

counsel’s petition for leave to withdraw as counsel.

      Judgment of sentence affirmed.         Petition for leave to withdraw

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




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