J-S63026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES DALEY                                :
                                               :
                       Appellant               :   No. 470 WDA 2018

            Appeal from the Judgment of Sentence February 9, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0013809-2016


BEFORE:      OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 30, 2018

        James Daley (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to one count each of involuntary deviate sexual

intercourse (IDSI), aggravate indecent assault of a victim less than 13 years

of age, and endangering the welfare of a child (EWOC); in addition, Appellant

pled guilty to two counts of aggravated indecent assault of a child. 1

Appellant’s counsel, Richard T. Haft, Esquire (Counsel), seeks to withdraw

from representation pursuant to Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).               Upon

review, we grant Counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.




____________________________________________


1   18 Pa.C.S.A. §§ 3123(a)(7), 3125(a)(7), 4304(a)(1), and 3125(a)(1).
____________________________________
* Former Justice specially assigned to the Superior Court.
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      On November 20, 2017, Appellant pled guilty to the aforementioned

crimes. The plea was open with respect to Appellant’s sentence. On February

9, 2018, the trial court sentenced Appellant to an aggregate term of 134 to

268 months of incarceration, followed by five years of probation. Appellant

filed a post-sentence motion on February 20, 2018, which the trial court

denied on February 22, 2018. No direct appeal was filed.

      On March 28, 2018, Appellant filed a motion to reinstate appellate

rights, which the trial court granted.      This timely appeal followed.    Both

Appellant and the trial court have complied with Pennsylvania Rule of

Appellant Procedure 1925. On July 31, 2018, Counsel filed an Anders brief

and petitioned for leave to withdraw with this Court.

      At the outset, we note that there are particular mandates that counsel

seeking to withdraw pursuant to Anders must follow. These mandates 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). We have 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 petition
      and brief to the appellant, advising the appellant of the right to


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      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).

Id. (citations omitted).

      Additionally, there are requirements as to precisely what an Anders

brief must contain:

      [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 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 349, 361 (Pa. 2009).         When faced with a purported

Anders brief, we may not review the merits of the underlying issues without

first deciding whether counsel has properly requested permission to withdraw.

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation

omitted).   If counsel has met these 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 354 n.5.

      Instantly, we conclude that Counsel has complied with the requirements

outlined above. Counsel has filed a petition with this Court stating that after

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reviewing the record, he finds this appeal to be wholly frivolous. Motion to

Withdraw as Counsel, 7/31/18, at ¶ 12.         In conformance with Santiago,

Counsel’s brief includes summaries of the facts and procedural history of the

case, and discusses the issues he believes might arguably support Appellant’s

appeal. See Anders Brief at 16-18. Counsel’s brief sets forth his conclusion

that the appeal is frivolous and includes citation to relevant authority. See

id. at 17-19. Finally, Counsel has attached to his petition to withdraw the

letter that he sent to Appellant, which enclosed Counsel’s petition and Anders

brief. Counsel’s letter advised Appellant of his right to proceed pro se or with

private counsel and to raise any additional issues that he deems worthy of this

Court’s consideration.

      Counsel’s Anders brief advances Appellant’s argument challenging the

discretionary aspects of Appellant’s sentence. We recognize:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law, exercised
      its judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).

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      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.”    Id.   We conduct this four-part test to determine

whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
      raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

      Here, Appellant has complied with the first three prongs of the

discretionary aspect test to invoke our jurisdiction by raising his issue in a

timely post-sentence motion, filing a timely notice of appeal, and including in

his appellate brief a Rule 2119(f) concise statement. We therefore proceed to

determine whether Appellant has raised a substantial question for our review.



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     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 normal which underlie the sentencing

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

(citation and quotation marks omitted).

     A court’s exercise of discretion in imposing a sentence concurrently or

consecutively   does   not    ordinarily   raise   a   substantial   question.

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010),

appeal denied, 14 A.3d 825 (Pa. 2011).             Rather, the imposition of

consecutive rather than concurrent sentences will present 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. Lamonda, 52 A.3d 365,

372 (Pa. Super. 2012), appeal denied, 75 A.3d 1281 (Pa. 2013).

     To make it clear, 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.

Dodge, 77 A.3d at 1270 (emphasis in original).



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      Here, Appellant baldly asserts that the trial court abused its discretion

in imposing a sentence that was “excessive or not within the guidelines as

proscribed by law.” Anders Brief at 3. This assertion does not constitute a

substantial question for our review.    See Commonwealth v. Gonzalez-

Dejusus, 994 A.2d 595, 599 (Pa. Super. 2010). Because Appellant entered

into an open plea, his sentence was left to the discretion of the trial court.

Cook, 941 A.2d at 11. Likewise, the fact that the trial court, in fashioning its

sentence, imposed the sentences for each of his offenses consecutively, does

not present a substantial question.     See Mastromarino, 2 A.3d at 587.

Therefore, Appellant’s sentencing claim is without merit.

      Moreover, our independent review of all the proceedings discloses no

other non-frivolous issues that Appellant could raise on appeal.           See

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en

banc). Thus, we grant Counsel’s petition to withdraw, and affirm Appellant’s

judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2018




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