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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

RICHARD LEE WHITE

                            Appellant                   No. 1539 WDA 2015


              Appeal from the Judgment of Sentence July 23, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000317-2015


BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                    FILED JUNE 07, 2016

        Richard Lee White appeals from the judgment of sentence entered July

23, 2015, in the Erie County Court of Common Pleas, made final by denial of

post-sentence motions on September 11, 2015. The court sentenced White

in absentia to a term of 11 to 23 months’ imprisonment following his guilty

plea to one count of simple assault.1          Contemporaneous with this appeal,

White’s counsel has filed a petition to withdraw from representation and an

Anders brief.         See Anders v. California, 386 U.S. 738 (1967);

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).                   Counsel’s

Anders brief challenges the discretionary aspects of White’s sentence. For

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2701(a)(1).
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the reasons set forth below, we affirm the judgment of sentence and grant

counsel’s petition to withdraw.

       The relevant factual and procedural history is as follows. On

September 24, 2014, a confrontation occurred between White and the

victim, John Winters, during which White punched Winters in the head. On

June 1, 2015, White entered an open guilty plea to one count of simple

assault. In exchange for the plea, the Commonwealth agreed to nolle pros

other charges pending against him. As noted above, White was sentenced in

absentia on July 23, 2015, to a term of 11 to 23 months’ incarceration.2

       On July 31, 2015, White filed a motion to reconsider sentence,

contending that his age, employment, fatherhood status, and drug, alcohol

and mental health needs qualified him for probation or a restrictive

intermediate punishment sentence.              See Motion to Reconsider Sentence,

7/23/2015, at ¶ 3.        The trial court denied the motion on September 11,

2015, but granted him work release eligibility after 90 days’ incarceration.




____________________________________________


2
  At the sentencing hearing, the Commonwealth presented the testimony of
Christina Davis, with whom White lived. She testified that White spent the
previous night with one of his coworkers, and when she went to his job in
the morning to pick him up and bring him to the hearing, he was not there.
N.T., 7/23/2015 at 2-3.




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This timely appeal followed.3, 4

       When     direct   appeal    counsel     files   a   petition   to   withdraw   and

accompanying Anders brief, we must first examine the request to withdraw

before addressing any of the substantive issues raised on appeal. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007). Here,

our review of the record reveals counsel has substantially complied with the

requirements for withdrawal outlined in Anders, supra, and its progeny.5

Our review of the record reveals no additional correspondence from White.

Accordingly, we will proceed to examine the record and make an

independent determination of whether the appeal is wholly frivolous.

       The only issue in the Anders brief presents a general challenge to the

discretionary aspects of White’s sentence.6 “A challenge to the discretionary
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3
  On October 6, 2015, the trial court ordered White to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
White complied with the trial court’s directive, and filed a concise statement
on October 26, 2015.
4
  On March 31, 2016, the Commonwealth sent a letter to this Court,
indicating that it would not file a responsive brief in this appeal.
5
  Specifically, counsel (1) filed a petition for leave to withdraw, in which she
states her belief that appeal is meritless; (2) filed an Anders brief pursuant
to the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009); and (3) furnished a copy of the Anders brief to White and advised
White of his right to retain new counsel or proceed pro se. Commonwealth
v. Ferguson, 761 A.2d 613, 616 (Pa. Super. 2000). Counsel stated in her
petition to withdraw, as well as in her letter to White and in the Anders
brief, that any appeal would be frivolous.
6
 “Sentencing is a matter vested in the sound discretion of the judge, and
will not be disturbed on appeal absent a manifest abuse of discretion.”
(Footnote Continued Next Page)


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aspects of a sentence must be considered a petition for permission to

appeal,   as   the      right   to   pursue      such   a   claim   is   not   absolute.”

Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citation

omitted). In order to reach the merits of such a claim, this Court must

determine:

      (1) Whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted). Here, White filed a timely post-sentence motion

challenging the discretionary aspects of his sentence, as well as a timely

notice of appeal.         The Anders brief includes the requisite statement,

pursuant to Pa.R.A.P. 2119(f), setting forth the reasons relied upon for

allowance of appeal.         Therefore, we may proceed to determine whether

White has set forth a substantial question that his sentence is inappropriate

under the Sentencing Code. See Commonwealth v. Titus, 816 A.2d 251,

255 (Pa. Super. 2003).

      A substantial question exists when an appellant sets forth a “colorable

argument that the sentence imposed is either inconsistent with a specific

                       _______________________
(Footnote Continued)

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).



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provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Bentura, 975 A.2d

1128, 1133 (Pa. Super. 2009).            The Anders brief sets forth a claim that

White’s sentence was manifestly excessive, clearly unreasonable, and

inconsistent with the objections of the Pennsylvania Sentencing Code

because “the objectives of Section 9721(b) of the Pennsylvania Sentencing

Code could have been achieved without the imposition of such a lengthy

sentence.”      Anders Brief at 6.             We find this claim does not raise a

substantial question for our review. See Commonwealth v. Wright, 832

A.2d 1104, 1107 (Pa. Super. 2003) (a bald claim of excessiveness does not

raise a substantial question); Commonwealth v. Moury, 992 A.2d 162,

175 (Pa. Super. 2010) (concluding argument “[t]hat the court refused to

weigh the proposed mitigating factors as Appellant wished, absent more,

does not raise a substantial question.”). In addition, where, as here, the trial

court had the benefit of a presentence investigation report, we will presume

it was “aware of all appropriate sentencing factors and considerations.”

Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)

(citation omitted).7 Therefore, this claim warrants no relief.
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7
  Moreover, White’s claim has no merit. Simple assault carries an offense
gravity score (OGS) of three. White’s prior record score was three. N.T.,
07/23/15 at 6-7. The standard range sentence for this level of offense is
restorative sanctions to 12 months’ incarceration. White’s sentence was on
the higher end of the guidelines; nevertheless, it was still within the
standard range. Indeed, as the trial court properly found:
(Footnote Continued Next Page)


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       Consequently, because we agree with counsel’s assessment that the

appeal is frivolous,8 we affirm the judgment of sentence and grant counsel’s

petition to withdraw.

       Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2016




                       _______________________
(Footnote Continued)


       Here, this Court considered the Pennsylvania Sentencing Code
       and accompanying factors, the pre-sentence investigative report,
       [White]’s absence, and the statement of Christina Davis. N.T.
       Sentencing, 07/23/15, at 5-7. Despite [White]’s claim to the
       contrary, he was not subject to an aggregate sentence. Rather,
       he was sentenced to a term of 11 to 23 months’ incarceration for
       the simple assault charge, which was within the statutory limits
       and not manifestly excessive. Accordingly, there was no
       sentencing error and this claim is without merit.

Trial Court Opinion, 11/9/15 at 4.
8
    See Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).



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