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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
JESUS MANUEL ALVAREZ-DIAZ,                 :
                                           :
                         APPELLANT         :
                                           :     No. 321 MDA 2016

            Appeal from the Judgment of Sentence February 4, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005351-2013

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                         FILED NOVEMBER 23, 2016

        Appellant, Jesus Manuel Alvarez-Diaz, appeals from the Judgment of

Sentence entered in the Berks County Court of Common Pleas on February

4, 2016, following the revocation of his probation and parole.       With this

appeal, Appellant’s counsel, Megan C. Mahon, Esq., has filed a Petition to

Withdraw and an Anders1 brief, stating that the appeal is wholly frivolous.

After careful review, we affirm the Judgment of Sentence and grant

counsel’s Petition to Withdraw.

        The procedural history relevant to the instant appeal is as follows. On

September 12, 2014, Appellant entered a negotiated guilty plea to one count



*
    Retired Senior Judge assigned to the Superior Court.
1
    Anders v. California, 386 U.S. 738 (1967).
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of Robbery and one count of Conspiracy to Commit Robbery. The Honorable

M. Theresa Johnson sentenced Appellant to 6 to 23 months’ incarceration on

the Robbery conviction, with a consecutive sentence of 5 years’ probation on

the Conspiracy conviction.     The trial court made Appellant eligible for

participation in the Earned Time reentry program, Appellant was eligible for

release on January 19, 2015.

     On April 10, 2015, Appellant was arrested on new criminal charges.

See Docket No. CP-06-CR-0002259-2015. On February 4, 2016, Appellant

appeared before Judge Johnson on the new charges and entered a

negotiated guilty plea to one count each of Aggravated Assault and

Conspiracy to commit Aggravated Assault.         Judge Johnson sentenced

Appellant to 15 to 60 months’ incarceration.

     That same day, Judge Johnson proceeded to a probation and parole

revocation hearing in the instant case.   Judge Johnson found Appellant in

violation of his probation for the new conviction and sentenced Appellant to

2 to 4 years’ incarceration, to run concurrent to his sentence on the new

convictions. Due to the concurrent nature of the sentences imposed in both

cases, the 2 to 4 year sentence added an additional 9 months to Appellant’s

new aggregate sentence.        It did not impact the maximum range of

Appellant’s aggregate sentence.

     On February 12, 2016, Appellant filed a Post-Sentence Motion for

Modification of Sentence. Before any action was taken on the Post-Sentence



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Motion, Appellant timely-filed a Notice of Appeal to this Court.      The trial

court did not rule on Appellant’s Post-Sentence Motion. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises the following issue:

      Whether the sentencing court abused its discretion in imposing a
      sentence of two (2) to four (4) years of incarceration for
      Conspiracy to Commit Robbery where the sentence was
      manifestly excessive and fails to consider the fundamental
      norms underlying the sentencing code?

Appellant’s Brief at 5.

      As Appellant’s counsel has filed an Anders Brief, we must consider her

request to withdraw as counsel prior to reviewing Appellant’s claims on the

merits. Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010).

An Anders brief must comply with the requirements set forth by our

Supreme Court:

      [W]e hold 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.

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

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client:


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      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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).       “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

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

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc). Further, “this

Court must conduct an independent review of the record to discern if there

are   any    additional,   non-frivolous   issues   overlooked   by   counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).

      In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Second, counsel

advances relevant portions of the record that arguably support Appellant’s

claims on appeal. Third, counsel concludes that the instant appeal is wholly

frivolous.   Lastly, counsel has complied with the requirements set forth in

Millisock.    See Letter from Counsel to Appellant, dated 6/22/16. As a

result, we proceed to conduct an independent review to ascertain if the

appeal is indeed wholly frivolous.


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     A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:

        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 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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

     In the instant case, Appellant filed a timely Post-Sentence Motion and

Notice of Appeal. He also included a separate Pa.R.A.P. 2119(f) Statement

in his appellate brief. As to whether Appellant has presented a substantial

question, we note:

        The determination of what constitutes a substantial
        question must be evaluated on a case-by-case basis. 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.

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

and quotation omitted).




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      Here, Appellant avers in his Rule 2119(f) statement that the sentence

following revocation of his probation was excessive and that the trial court

failed to consider mitigating factors before re-sentencing him.     He claims

that the trial court did not adequately consider his prior record score of zero

at the time of his original sentencing, as well as the fact that he “has a

supportive family who is able to provide him with a parole plan.” Appellant’s

Brief at 13-14.

      An argument that the sentencing court failed to consider mitigating

factors in favor of a lesser sentence does not present a substantial question

appropriate for our review.   Commonwealth v. Hanson, 856 A.2d 1254,

1257-58 (Pa. Super. 2004).      See also Commonwealth v. Griffin, 804

A.2d 1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d

1385, 1388 (Pa. Super. 1989) (en banc) (an allegation that the sentencing

court did not adequately consider various factors is, in effect, a request that

this court substitute its judgment for that of the lower court in fashioning a

defendant’s sentence)).

      Moreover, we note that Appellant does not allege that his 2 to 4 year

sentence is outside the statutory maximum sentence.              Neither does

Appellant point to any specific provision of the Sentencing Code the

sentencing court ostensibly violated.      Appellant’s bald assertion that his

sentence is excessive does not raise a substantial question.              See

Commonwealth v. Trippett, 932 A.2d 188, 201-03 (Pa. Super. 2007)



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(bald allegations of excessiveness insufficient to permit discretionary

review).

      Accordingly, we conclude that Appellant has failed to raise a

substantial question as to the appropriateness of his sentence and agree

with counsel that this appeal is wholly frivolous.        Furthermore, our

independent review of the record reveals no additional non-frivolous claims.

We therefore grant counsel’s Petition to Withdraw and affirm the February 4,

2016 Judgment of Sentence.

     Judgment of Sentence affirmed. Petition to Withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2016




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