J-S14015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
    KENNETH A. TERRY                           :
                                               :
                      Appellant                :       No. 1323 MDA 2016

             Appeal from the Judgment of Sentence June 28, 2016
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0001258-2016


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

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 28, 2017

        Appellant, Kenneth A. Terry, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his guilty

plea to one count each of retail theft, criminal conspiracy, possession of an

instrument of crime (“PIC”), possession of a controlled substance, and

possession of drug paraphernalia.1 We affirm and grant counsel’s petition to

withdraw.

        The relevant facts and procedural history of this case are as follows.

On February 18, 2016, Joseph Smith, the manager of a Tommy Hilfiger

Outlet Store at the Tanger Outlets in Hershey, PA, called the police to report

____________________________________________


1
 18 Pa.C.S.A. §§ 3929(a)(1), 903(c), 907(a), and 35 P.S. §§ 780-113(a)(1)
and (a)(32), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S14015-17


that a man and a woman, later identified as Appellant and Brandy Spells,

were acting suspiciously in his store. Mr. Smith told the police that these

two persons were taking too many items of clothing into fitting rooms and

would get angry when told they could only bring a limited number of items

into the fitting rooms at one time. Mr. Smith also said it appeared as though

Ms. Spells was attempting to distract Mr. Smith and other store employees

from Appellant’s activities. At one point, Mr. Smith and another employee

observed Appellant placing store merchandise under his coat.       Soon after,

Ms. Spells approached the register to check out with a few items, and

Appellant walked out of the store.       The security devices on the clothing

under Appellant’s jacket triggered the store alarm, and Mr. Smith asked

Appellant to step back inside the store with the merchandise.

         Instead, Appellant continued out the door to the parking lot and began

to place the store merchandise inside a vehicle.          Police officers then

approached Appellant and informed him that he was being detained for retail

theft.    The officers handcuffed Appellant, patted him down, and found a

metal “V” shaped pry bar, frequently used to remove store security devices

from clothing, and a pair of scissors.

         Officers located the stolen merchandise in the vehicle: a polo shirt,

jeans, a V-neck t-shirt, and a jacket. Mr. Smith confirmed the items were

taken from the store and worth $159.67 total. The police arrested Appellant

for retail theft and took him to the Derry Township Police Department. At


                                      -2-
J-S14015-17


the police department, Appellant requested the police to ask Ms. Spells to

locate Appellant’s black bag, which he said contained his gold teeth.       An

officer retrieved the black bag with Ms. Spells and presented it to Appellant,

asking if it belonged to him. Appellant confirmed it was his bag. The police

removed a plastic bag from the bag, which contained crack cocaine.

      On June 28, 2016, Appellant pled guilty to retail theft, conspiracy to

commit retail theft, PIC, possession of a controlled substance, and

possession of drug paraphernalia.      For retail theft (Count 1), the court

sentenced Appellant to sixteen (16) to thirty-six (36) months’ incarceration

in state prison, with credit for time served from February 19, 2016 to March

3, 2016, and a fine of $300.00, plus court costs. For conspiracy, the court

sentenced Appellant to sixteen (16) to thirty-six (36) months’ incarceration,

concurrent with Count 1, and a fine of $100.00, plus court costs. For PIC,

the court sentenced Appellant to sixteen (16) to thirty-six (36) months’

incarceration, also concurrent with Count 1, and a fine of $100.00, plus

court costs. For possession of a controlled substance, the court sentenced

Appellant to twelve (12) months’ state probation, also concurrent with Count

1, and a fine of $25.00, plus court costs.          For possession of drug

paraphernalia, the court sentenced Appellant to twelve (12) months’ state

probation, also concurrent with Count 1, and a fine of $25.00, plus court

costs. The aggregate sentence was sixteen (16) to thirty-six (36) months’

incarceration with concurrent probation. In delivering this sentence, the trial


                                     -3-
J-S14015-17


court noted Appellant was facing an aggregate sentence of up to 23 years.

Additionally, the trial court remarked that Appellant had a prior record score

of five and had been given multiple opportunities over the last several years

but continued to show a disregard for the law.

      On July 7, 2016, Appellant timely filed a post-sentence motion to

modify his sentence, which the court denied on July 11, 2016.       Appellant

filed a timely notice of appeal on August 9, 2016. On August 10, 2016, the

court ordered Appellant to file a Rule 1925(b) statement; Appellant timely

complied on August 31, 2016. On November 21, 2016, Appellant’s counsel

filed an Anders brief and application to withdraw representation.

      As a preliminary matter, counsel seeks to withdraw her representation

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009). Anders and Santiago require counsel to: 1) petition the Court for

leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; 2) file a

brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.     Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.


                                    -4-
J-S14015-17


2007). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to

confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903

A.2d 1244, 1246 (Pa.Super. 2006).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

              Neither Anders nor McClendon[2] requires that
              counsel’s brief provide an argument of any sort, let
              alone the type of argument that counsel develops in
              a merits brief.    To repeat, what the brief must
              provide under Anders are references to anything in
              the record that might arguably support the appeal.

                                       *       *   *

              Under Anders, the right to counsel is vindicated by
              counsel’s examination and assessment of the record
              and counsel’s references to anything in the record
              that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

              [I]n 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
____________________________________________


2
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



                                           -5-
J-S14015-17


            on point that have led to the conclusion that the
            appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

      Instantly, counsel filed a petition to withdraw.    The petition states

counsel conducted a conscientious review of the record and determined the

appeal is wholly frivolous.    Counsel also supplied Appellant with a copy of

the brief and a letter explaining Appellant’s right to retain new counsel or to

proceed pro se to raise any additional issues Appellant deems worthy of this

Court’s attention.     (See Letter to Appellant, dated 11/21/16, attached as

Exhibit B to Appellant’s Brief.)    In the Anders brief, counsel provides a

summary of the relevant facts and procedural history of the case. Counsel’s

argument refers to relevant law that might arguably support Appellant’s

issue. Counsel further states the reasons for her conclusion that the appeal

is wholly frivolous.   Therefore, counsel has substantially complied with the

requirements of Anders and Santiago.

      Counsel raises the following issue on Appellant’s behalf:

         WHETHER THE TRIAL COURT ERRED IN IMPOSING A
         SIXTEEN TO THIRTY-SIX MONTH INCARCERATION
         SENTENCE, WHERE THE SENTENCE IS EXCESSIVE AND
         UNREASONABLE?

(Anders Brief at 5).

      Essentially, Appellant argues the sentence imposed is manifestly

excessive, constitutes too severe a sentence, and is unreasonable.          As

presented, Appellant’s claim implicates the discretionary aspects of his


                                      -6-
J-S14015-17


sentence.3 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)

(stating claim that sentence is manifestly excessive challenges discretionary

aspects of sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).          Prior to reaching the merits of a discretionary

aspects of sentencing issue:

          [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).

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

denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary

aspects of sentence are generally waived if they are not raised at the

sentencing hearing or raised in a motion to modify the sentence imposed at

____________________________________________


3
  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”      Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
guilty plea included no negotiated sentence.



                                           -7-
J-S14015-17


that hearing.    Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

        When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,

112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),

cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009). The

concise statement must indicate “where the sentence falls in relation to the

sentencing guidelines and what particular provision of the code it violates.”

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) (quoting

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000), appeal

denied, 563 Pa. 672, 759 A.2d 920 (2000)).

        What constitutes a substantial question must be evaluated on a case-

by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007).

A substantial question exists “only when the appellant advances a colorable


                                     -8-
J-S14015-17


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, 913 (Pa.Super. 2000) (internal

citation omitted).   In other words, an appellant’s Rule 2119(f) statement

must sufficiently articulate the manner in which the sentence violates either

a specific provision of the sentencing scheme set forth in the Sentencing

Code or a particular fundamental norm underlying the sentencing process.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

      Our standard of review of a challenge to the discretionary aspects of

sentencing is as follows:

         Sentencing is a matter vested in the sound discretion of
         the sentencing judge, and 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.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).             On appeal, this

Court will not disturb the judgment of the sentencing court absent an abuse

of discretion. Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006).

         [A]n abuse of discretion is more than a mere error of
         judgment; thus, a sentencing court will not have abused

                                       -9-
J-S14015-17


         its discretion unless the record discloses that the judgment
         exercised was manifestly unreasonable, or the result of
         partiality, prejudice, bias or ill-will. In more expansive
         terms, …: An abuse of discretion may not be found merely
         because an appellate court might have reached a different
         conclusion,     but   requires    a    result   of   manifest
         unreasonableness, or partiality, prejudice, bias, or ill-will,
         or such lack of support so as to be clearly erroneous.

         The rationale behind such broad discretion and the
         concomitantly deferential standard of appellate review is
         that the sentencing court is in the best position to
         determine the proper penalty for a particular offense based
         upon an evaluation of the individual circumstances before
         it. Simply stated, the sentencing court sentences flesh-
         and-blood defendants and the nuances of sentencing
         decisions are difficult to gauge from the cold transcript
         used upon appellate review. Moreover, the sentencing
         court enjoys an institutional advantage to appellate review,
         bringing to its decisions an expertise, experience, and
         judgment that should not be lightly disturbed. Even with
         the advent of the sentencing guidelines, the power of
         sentencing is a function to be performed by the sentencing
         court. Thus, rather than cabin the exercise of a sentencing
         court’s discretion, the guidelines merely inform the
         sentencing decision.

                                   *      *     *

         [W]e reaffirm that the guidelines have no binding effect,
         create no presumption in sentencing, and do not
         predominate over other sentencing factors—they are
         advisory guideposts that are valuable, may provide an
         essential starting point, and that must be respected and
         considered; they recommend, however, rather than
         require a particular sentence. …

Commonwealth v. Walls, 592 Pa. 557, 564-70, 926 A.2d 957, 961-65

(2007)   (internal   quotation   marks,       footnotes,   and   citations   omitted).

“Generally, Pennsylvania law ‘affords the sentencing court discretion to

impose its sentence concurrently or consecutively to other sentences being

                                       - 10 -
J-S14015-17


imposed at the same time or to sentences already imposed. Any challenge

to the exercise of this discretion ordinarily does not raise a substantial

question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)

(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.

2006)). “[T]he court shall make as part of the record, and disclose in open

court at the time of sentencing, a statement of the reason or reasons for the

sentence imposed.” 42 Pa.C.S.A. § 9721(b). Nevertheless, “[a] sentencing

court need not undertake a lengthy discourse for its reasons for imposing a

sentence   or   specifically   reference     the   statute[s]   in   question….”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal

denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record as a whole

must reflect the sentencing court’s consideration of the facts of the case and

the defendant’s character. Id.

      In the instant case, Appellant preserved his challenge to the

discretionary aspects of sentencing in his post-sentence motion, his Rule

1925(b) statement, and his Rule 2119(f) statement.              To the extent,

however, Appellant poses a generic claim that the court gave him an

excessive and unreasonable sentence, the claim does not raise a substantial

question as to the discretionary aspects of sentencing. Commonwealth v.

Trippett, 932 A.2d 188 (Pa.Super. 2007).

      Moreover, the court stated its reasons for the sentence imposed as

follows:


                                    - 11 -
J-S14015-17


           [Appellant] alleges that his sentence of 16 to 36 months of
           incarceration is excessive and unreasonable.           This
           sentence is not excessive [or] unreasonable.         All of
           [Appellant’s] sentences are within the standard range of
           the sentencing guidelines. …

           Nor is the sentence manifestly excessive.            Here,
           [Appellant] was facing an aggregate sentence of up to 23
           years as indicated in the Guilty Plea Colloquy that
           [Appellant] signed.    [Appellant] was also asked if he
           understood the nature of the charges brought against him
           and he answered “yes.” [Appellant] was further asked if
           he understood the maximum possible penalty listed and
           whether it was his signature on the guilty plea colloquy.
           [Appellant] also has a prior record score of five (5).
           [Appellant] has been given multiple opportunities over the
           last several years but has shown a complete disregard for
           the law and continues to commit new crimes.

           For the foregoing reasons, it is believed that the judgment
           of sentence was properly entered.

(Trial Court Opinion, filed September 8, 2016, at 2-3).     Further, the court

imposed the standard range sentences for Appellant’s offenses to run

concurrently and gave Appellant credit for time served as to all convictions.

We also note Appellant’s new offenses constituted probation violations. So

under these circumstances, Appellant’s bare challenge to the discretionary

aspects of sentence fails. Following our independent review of the record,

we conclude the appeal is frivolous.     See Palm, supra.     Accordingly, we

affirm and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.




                                     - 12 -
J-S14015-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




                          - 13 -
