J-S47004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GARY L. MACHINSHOK,

                        Appellant                  No. 2143 MDA 2015


            Appeal from the Judgment of Sentence July 9, 2015
              In the Court of Common Pleas of Luzerne County
 Criminal Division at No(s): CP-40-CR-0000451-2014, CP-40-CR-0000459-
                                   2014


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JULY 26, 2016

      Appellant, Gary L. Machinshok, appeals from the judgment of sentence

entered on July 9, 2015, in the Luzerne County Court of Common Pleas.

Appellate counsel has filed a petition seeking to withdraw his representation

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern

withdrawal from representation on direct appeal.    After careful review, we

grant counsel’s petition to withdraw and affirm Appellant’s judgment of

sentence.

      The trial court summarized the factual and procedural history of this

case as follows:

           This matter is presently before the [c]ourt on [Appellant’s]
      appeal of his sentence following the entry of no contest pleas in
J-S47004-16


     [two] cases to Rape, Statutory Sexual Assault, Indecent Assault
     and related charges.1 The [c]ourt accepted [Appellant’s] no
     contest pleas at a hearing on August 4, 2014. A Pre-Sentence
     Investigation (PSI) was ordered to be completed by the Luzerne
     County Adult Probation and Parole Department, and a sentencing
     hearing was scheduled. Prior to sentencing, the Pennsylvania
     Sexual Offenders Assessment Board completed an assessment
     and evaluation of [Appellant], and determined that he meets the
     criteria of a sexually violent predator.
          1
            In the case docketed at 459 of 2014 [Appellant]
          plead no contest to F-1 Rape, 18 § 3121(a)(2); F-2
          Statutory Sexual Assault, 18 § 3122.1; F-2 Sexual
          Assault, 18 § 3124.1; F-2 Aggravated Indecent
          Assault, 18 § 3125(a)(3); F-2 Aggravated Indecent
          Assault (victim less than 16), 18 § 3125(a)(8); F-3
          Endangering     the    Welfare   of   Children,  18
          § 4304(a)(1);     M-1     Indecent    Assault,   18
          § 3126(a)(3), M-2 Indecent Assault (w/o consent),
          18 § 3126(a)(1); M-2 Indecent Assault (Person less
          than 16) 18 § 3126(a)(8) and F-3 Corruption of
          Minors, 18 § 6301(a)(1)(ii). In the case docketed at
          451 of 2014 [Appellant] plead no contest to F-3
          Indecent Assault (Person Less than 13), 18
          § 3126(a)(7), F-3 Endangering the Welfare of
          Children, 18 § 4304(a)(1); F-3 Corruption of Minors,
          18 § 6301(a)(1)(ii) and F-3 Criminal Attempt
          (Indecent Assault – person less than 13 years of
          age).

           On July 9, 2015, [Appellant] appeared before the [c]ourt
     for sentencing. At the time of [Appellant’s] Sentencing, the
     [c]ourt heard evidence relative to [Appellant’s] status as a
     sexually violent predator pursuant to 42 Pa.C.S. § 9799.24.
     After having heard the testimony of Paula Brust, who is
     employed by the Pennsylvania Sexual Offender’s Board (SOAB),
     and who prepared the SOAB report relative to these cases, we
     determined that [Appellant] was a sexually violent predator.

           Upon a review of the PSI and upon consideration of the
     submissions made by [Appellant] and counsel at the sentencing
     hearing, we determined that a sentence within the standard
     range of the applicable sentencing guidelines was appropriate.
     Accordingly, [Appellant] was sentenced to an aggregate term of

                                  -2-
J-S47004-16


       incarceration of one hundred and sixty two (162) months to
       three hundred and twenty four (324) months in a state
       correctional institution. [Appellant] was subsequently advised of
       his sexual offender registration notification requirements, as well
       as his post-sentence rights, and was remanded.

            On July 20, 2015, [Appellant] through his counsel, filed a
       Motion to Modify Sentence[1] which we denied by Order dated
       August 28, 2015. A Notice of Appeal was filed on September 22,
       2015, and on September 24, 2015, we ordered [Appellant] to file
       a Concise Statement of Errors Complained of on Appeal pursuant
       to Pa.R.A.P. 1925(b) and requested the Commonwealth to
       respond thereto.

              A Motion to Extend Time for Filing of Concise Statement
       was filed with this [c]ourt on October 15, 2015. We granted
       counsel’s motion on October 16, 2015. Trial counsel thereafter
       filed a Petition to Withdraw contemporaneously with a Motion for
       Appointment of Appellate Counsel. Matthew P. Kelly, Esquire,
       Luzerne County Conflict Counsel, was subsequently appointed to
       represent [Appellant] in the instant appeal. A second Motion to
       Extend Time for Filing of Concise Statement was filed with this
       [c]ourt on November 2, 2015. We granted counsel’s motion that
       same day and accepted the Concise Statement filed by Attorney
       Kelly on November 18, 2015, as timely filed.

Trial Court Opinion, 12/2/15, at 1-3.

       Before we address the issue that Appellant’s counsel raised on appeal,

we must resolve appellate counsel’s request to withdraw. Commonwealth

v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are

procedural and briefing requirements imposed upon an attorney who seeks
____________________________________________


1
   We note that because July 19, 2015 fell on a Sunday, Appellant had until
July 20, 2015, to file his motion. See 1 Pa.C.S. § 1908 (stating that, for
computations of time, whenever the last day of any such period shall fall on
Saturday or Sunday, or a legal holiday, such day shall be omitted from the
computation); Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super.
2004).



                                           -3-
J-S47004-16


to withdraw on direct appeal.      The procedural mandates are that counsel

must:

        1) petition the court for leave to withdraw stating that, after
        making a conscientious examination of the record, counsel has
        determined that the appeal would be frivolous; 2) furnish a copy
        of the brief to the defendant; and 3) advise the defendant that
        he or she has the right to retain private counsel or raise
        additional arguments that the defendant deems worthy of the
        court’s attention.

Id. at 1032 (citation omitted).

        In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that after making a conscientious examination

of the record, he concluded that the present appeal is wholly frivolous.

Counsel sent Appellant a copy of the Anders brief and the petition to

withdraw, as well as a letter advising Appellant that he could represent

himself or retain private counsel to represent him. A copy of that letter was

attached to counsel’s petition to withdraw.

        We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

        in the Anders brief that accompanies court-appointed counsel’s
        petition to withdraw, counsel 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

                                       -4-
J-S47004-16


      We are satisfied that counsel has met the requirements set forth in

Santiago.    Counsel’s brief sets forth the factual and procedural history of

this case, cites to the record, and refers to an issue that counsel arguably

believes supports the appeal.     Anders Brief at 1-5.    Further, the brief

includes counsel’s conclusion that the appeal is frivolous, and it contains

pertinent case authority and counsel’s reasons for concluding that the appeal

is frivolous. Id. at 6-8. Accordingly, we address the following issue raised

in the Anders brief:

      Whether the trial court abused its discretion in sentencing the
      Appellant.

Anders Brief at 1.

      In the argument portion of the Anders brief, counsel asserts that the

trial court abused its discretion in failing to consider the sentencing

guidelines and in imposing an unreasonable sentence that is excessive under

the circumstances. Anders Brief at 6. Specifically, counsel argues that the

trial court failed to consider Appellant’s age, family history, education,

employment history, remorse, and cooperation with the Commonwealth. Id.

at 6-7.     Thus, counsel is purporting to present a challenge to the

discretionary aspects of Appellant’s sentence.

      We note that “[t]he right to appellate review of the discretionary

aspects of a sentence is not absolute.”     Commonwealth v. Zirkle, 107

A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

                                    -5-
J-S47004-16


petition for allowance of appeal.   Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

            [W]e 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 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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question

is made on a case-by-case basis, and this Court will grant the appeal 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.   Commonwealth v. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

      Herein, the first three requirements of the four-part test are met:

Appellant filed a timely appeal, raised the challenges in a post-sentence

motion, and included in his Anders brief the necessary separate concise

                                    -6-
J-S47004-16


statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

     “We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.”      Commonwealth v. Ahmad, 961

A.2d 884, 886–887 (Pa. Super. 2008).           Here, counsel argues in the

Pa.R.A.P. 2119(f) statement that the trial court abused its discretion by

failing to consider Appellant’s age, family history, education, employment

history, remorse, and cooperation. Anders Brief at 3.

     “This Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”   Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.

2013) (citations omitted); see also Commonwealth v. Downing, 990

A.2d 788, 794 (Pa. Super. 2010) (concluding that a claim that the trial court

abused its discretion in failing to adequately consider certain mitigating

factors did not raise a substantial question for this Court’s review).

Accordingly, we cannot conclude that Appellant has raised a substantial

question.

     Even if Appellant had raised a substantial question, he still would not

have obtained relief because the trial court here had the benefit of a

presentence investigation (“PSI”) report. “Where the sentencing court had


                                       -7-
J-S47004-16


the benefit of a [PSI], we can assume the sentencing court was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.” Moury, 992 A.2d at

171 (internal quotation marks omitted); see also Commonwealth v.

Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) (“Since the sentencing court

had and considered a [PSI], this fact alone was adequate to support the

sentence, and due to the court’s explicit reliance on that report, we are

required to presume that the court properly weighed the mitigating factors

present in the case.”).

      Here, at sentencing the trial court explicitly stated:

      Having reviewed the presentence investigation report, and all of
      the letters and statements submitted, all of the testimony
      presented here today, as well as the various arguments of
      counsel. Again, reviewing the PSI. In imposing sentence the
      [c]ourt does note the obvious nature of these offenses. The
      impact that these offenses have, and will continue to have upon
      the victims in these matters. [Appellant] was in a position that
      should have been a position of trust with these young ladies and
      he violated that trust in the acts to which he pled no contest.

            Based upon all that, and so as not to diminish the serious
      nature of the offenses, the [c]ourt, again noting the horrific
      nature of the offenses that were perpetrated on multiple victims,
      we’ll sentence [Appellant] to a substantial period of
      incarceration. The sentences the [c]ourt is going to impose will
      all be within the standard ranges of the applicable sentencing
      guidelines.

Sentencing Transcript, 10/28/15,       at 45-46.       Accordingly, Appellant’s

argument that the trial court failed to consider mitigating evidence would

fail. See Moury, 992 A.2d at 171; Fowler, 893 A.2d at 766.


                                      -8-
J-S47004-16


     Finally, we have independently reviewed the record in order to

determine whether there are any non-frivolous issues present in this case

and have found none. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.

Super. 2014).   Having concluded that there are no meritorious issues, we

grant Appellant’s counsel permission to withdraw and affirm the judgment of

sentence.

     Petition of counsel to withdraw is granted.    Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




                                   -9-
