J-S25013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

LARRY KING,

                            Appellant                    No. 2791 EDA 2016


           Appeal from the Judgment of Sentence August 15, 2016
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0005430-2013


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                                 FILED MAY 31, 2017

      Appellant, Larry King, appeals from the judgment of sentence of full

backtime    plus   a    consecutive     sentence   of   six    to   twelve   months’

imprisonment, imposed after the court revoked his parole/probation,

following a new conviction. Appellant seeks to challenge his new sentence.

Additionally, his counsel, Patrick J. Connors, Esq., has filed a petition to

withdraw his representation of Appellant pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). After review, we affirm Appellant’s judgment of sentence and grant

counsel’s petition to withdraw.

      In October of 2013, Appellant entered a negotiated plea to charges of

criminal trespass and criminal mischief. He was sentenced to time served

(53 days) to twelve months on the criminal trespass count and a consecutive
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sentence of one year of probation on the criminal mischief count. Following

an arrest and conviction related to a robbery of a Family Dollar Store, a

probation and parole revocation hearing was held on August 15, 2016.

Appellant stipulated that he had violated his parole/probation and the court

sentenced him as noted above. Although no post-sentence motion was filed,

Appellant requested that Attorney Connors file this appeal. In response to

the court’s order directing that a concise statement of matters complained of

on appeal be filed, counsel filed a statement of intent to file an Anders brief.

See Pa.R.A.P. 1925(c)(4). In the Anders brief, the single issue raised on

appeal questions “[w]hether the 6 to 12 month term of imprisonment

imposed for violating the probation originally imposed for [c]riminal

[m]ischief is harsh and excessive under the circumstances?” Anders brief

at 1.

        As noted, Attorney Connors has filed with this Court a petition to

withdraw and an Anders brief, asserting that the issue Appellant seeks to

raise has arguable merit, but “is frivolous since the new sentence was well

within the [c]ourt’s discretion given the facts of this case.”       Id. at 5.

Counsel also acknowledges that he has found no other issues that may be

raised on appeal. See Counsel’s Application to Withdraw, ¶ 3.

        This Court must first pass upon counsel's petition to withdraw
        before reviewing the merits of the underlying issues presented
        by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
        287, 290 (Pa. Super. 2007) (en banc).




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      Prior to withdrawing as counsel on a direct appeal under
      Anders, counsel must file a brief that meets the requirements
      established by our Supreme Court in Santiago. The brief 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 at 361. 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. Nischan, 928 A.2d 349,
      353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
      (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “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) (citations and footnote omitted).

      In this case, Attorney Connors’ Anders brief substantially complies

with the above-stated requirements. Namely, he includes a summary of the

relevant factual and procedural history with citations to the record, he refers



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to portions of the record that could arguably support Appellant’s claim, and

he sets forth his conclusion that the issue and Appellant’s appeal are

frivolous. He also explains his reasons for reaching that determination, and

supports his rationale with citation to the record and pertinent legal

authority. Attorney Connors also states in his petition to withdraw that he

has supplied Appellant with a copy of his Anders brief, and he attaches a

letter directed to Appellant in which he informs him of the rights enumerated

in Nischan.        Accordingly, counsel has sufficiently complied with the

technical requirements for withdrawal.           We will now independently review

the record to determine if Appellant’s issue is frivolous, and to ascertain if

there are any other, non-frivolous issues Appellant could pursue on appeal.

       Appellant’s issue challenges the discretionary aspects of his sentence.

Essentially, he argues that the term of incarceration imposed is unduly harsh

and excessive.1 However, as previously noted, Appellant did not file a post-

sentence motion raising this discretionary aspect of sentencing claim, and he

also did not assert it during the sentencing proceeding. Consequently, this

issue is waived. See Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.

Super. 2004) (“Issues challenging the discretionary aspects of sentence




____________________________________________


1
  At the hearing on August 15, 2016, Appellant stated that he has accepted
responsibility for his actions. He also explained about his long-standing drug
use and his participation in prison programs to help improve himself.



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J-S25013-17



must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.”).

      Accordingly, we agree with Attorney Connors that the issue Appellant

seeks to assert on appeal is frivolous, and our independent review of the

record does not reveal any other, non-frivolous issue(s) he could present on

Appellant’s behalf. Therefore, we grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2017




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