J    -S25023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
     COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT
                                                                      OF
                                                                PENNSYLVANIA


                            v.

     AMEEN MCNAIR

                                  Appellant                   No. 1027 EDA 2016


             Appeal from the Judgment of Sentence February 2, 2016
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0006577-2009

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

MEMORANDUM BY RANSOM, J.:                                 FILED FEBRUARY 07, 2018

         Appellant, Ameen McNair, appeals from the judgment of sentence of five

to ten years of incarceration, imposed February 2, 2016, following            a   revocation

of probation hearing.            Additionally, Appellant's counsel, Richard       H.   Maurer,

Esq., seeks to withdraw his representation of Appellant pursuant to                    Anders
v.    California, 87   S. Ct. 1936     (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We affirm and grant counsel's petition to withdraw.

         We adopt the following statement of facts from the trial court's opinion,

which in turn     is   supported by the record.        See Trial Court Opinion (TCO),

5/24/16, at 1-3. In December 2009,              a   jury convicted Appellant of robbery
and criminal conspiracy for his involvement in the robbery of an elderly man.1-



1-   See 18 Pa.C.S.    §   3701(a)(1)(ii), 903(a)(1), respectively.
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In February 2010, the court sentenced Appellant to three to six years of

incarceration followed by two years of reporting probation.               Appellant filed

post -sentence motions, which were denied. Appellant timely appealed, and

his judgment of sentence was affirmed. See          Commonwealth v. McNair,           26

A.3d 1212 (Pa. Super. 2011) (unpublished memorandum), appeal denied, 32

A.3d 1276 (Pa. 2011).

        While on parole from the 2010 sentence, Appellant was arrested on new

charges.    In November 2015,       a    jury convicted Appellant of robbery.          In

January 2016, the court sentenced Appellant to ten to twenty years of

incarceration.2

        Appellant   appeared    before    the court for       violation    of   probation

proceedings. Following   a   hearing, the court revoked Appellant's probation and

resentenced him to five to ten years of incarceration consecutive to any other

sentence Appellant was serving. Appellant filed         a   motion for reconsideration

of his sentence, which the court denied.

        Appellant timely appealed and filed    a   court -ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).3 The court issued                a

responsive opinion.


2Appellant timely appealed his judgment of sentence; the pending appeal                is
docketed at 1570 EDA 2016.

3   On March 18, 2016, Appellant  untimely appealed to this Court. On March
21, 2016, Appellant filed a motion for reinstatement of his appellate rights
nunc pro tunc in the lower court. On March 29, 2016, the lower court, treating
the motion as a petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546, granted the motion.

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        In June 2016, appellate counsel filed in this Court an Anders brief and

application to withdraw as counsel. The brief sets forth two issues Appellant

seeks to raise on appeal, namely that the lower court did not consider all

relevant factors prior to imposing the VOP sentence and that the sentence was

manifestly excessive and breached fundamental norms of sentencing.                See

Appellant's Brief at 11, 14. However, counsel failed to attach to his application

a    letter to Appellant informing him of his right to retain counsel or proceed

pro se in the instant appeal.

        On July 28, 2016, this Court issued an order directing            that counsel
comply with the requirements of Anders.               Counsel was given ten days to

comply. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super.

2005) (opining that the prudent course         is   to require counsel to attach to the

petition to withdraw    a   copy of the letter sent to the client advising him of his

rights).

        On June 1, 2017, this Court issued a second order directing       that counsel
comply with the requirements of Anders.               That same day, counsel filed   a

response containing     a   letter advising Appellant of his right to retain counsel

or proceed pro se, dated June 29, 2016.

        On July 26, 2017, this Court issued a             judgment ordering denying
counsel's petition to withdraw, directing counsel's proper compliance with

Anders     and   Millisock,   and allowing Appellant an additional      thirty days to
respond.     On July 28, 2017, counsel certified        that he had sent Appellant an



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Anders -compliant letter. Appellant did not respond. Accordingly, we address
Appellant's brief.

        When faced with   a   purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel's

request to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc).        Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file          a   brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

        (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


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Anders and Santiago, only then may this Court "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 the instant matter, Attorney Maurer's Anders brief complies with the

above -state requirements.          Namely, he includes   a   summary of the relevant

factual and procedural history, he refers to the portions of the record that

could arguably support Appellant's claims, and he sets forth his conclusion

that Appellant's appeal      is   frivolous. He explains his reasoning and supports

his rationale with citations to the record as well as pertinent legal authority.

Attorney Maurer avers he has supplied Appellant with             a   copy of his Anders

brief and   a   letter explaining the rights enumerated in Nischan. Accordingly,

counsel has complied with the technical requirements for withdrawal. Thus,

we may independently review the record to determine if the issues Appellant

raises are frivolous and to ascertain if there are other non -frivolous issues he

may pursue on appeal.

        Appellant's issues challenge the discretionary aspect of his sentence and

argues that the lower court did not adequately consider all relevant factors

prior to imposing the VOP sentence, and that the sentence was manifestly

excessive and breached fundamental norms of sentencing.

        A challenge to      the discretionary aspects of        a    sentence must be

considered      a   petition for permission to appeal.        See Commonwealth v.

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.

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2119(f). This Court conducts           a   four-part analysis to determine: (1) whether
Appellant has timely filed        a    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,     42   Pa.C.S.       §   9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83                        (Pa. Super. 2015) (citation

omitted).

        Appellant timely filed    a   notice of appeal, preserved his issues in         a   motion

for reconsideration, and counsel has provided this Court with the requisite

notice to Appellant. Although counsel has not included the requisite Pa.R.A.P.

2119(f) statement      in his   Anders brief,

        [w]here counsel files an Anders brief, this Court has reviewed the
        matter even absent a separate Pa.R.A.P. 2119(f) statement.
        Hence, we do not consider counsel's failure to submit a Rule
        2119(f) statement as precluding review of whether Appellant's
        issue is frivolous. In addition, a determination of what constitutes
        a substantial question must be evaluated on a case -by -case basis
        and such question exists only when an appellant advances a
        colorable argument that the sentencing judge's actions were
        either inconsistent with a specific provision of the Sentencing Code
        or contrary to the fundamental norms underlying the sentencing
        process.

Commonwealth v. Bynum -Hamilton, 135 A.3d 179, 184                         (Pa. Super. 2016)

(internal citations and quotations omitted).                   A claim   that   a   sentence is

manifestly excessive may raise             a   substantial question if Appellant's Pa.R.A.P.

2119(f) statement sufficiently articulates the manner in which the sentence


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was inconsistent with the Code or contrary to its norms.              Commonwealth v.
Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).
        In the lower court, Appellant argued that the court failed to consider his

rehabilitative needs and failed to consider the extent to which he would be

ready to make    a   positive financial contribution to the care of his family. See

Appellant's Pa.R.A.P. 1925(b) Statement at          1111   9-14. However, the allegation

that the sentencing court did not consider certain mitigating factors, without
more, does not raise         a   substantial question.         See Commonwealth v.

McNabb, 819 A.2d 54, 57 (Pa. Super. 2003). Accordingly, Appellant's first
issue does not raise    a   substantial question.

        Appellant next claimed that the aggregate sentence was manifestly

excessive and breached fundamental norms of sentencing, as the term of

incarceration was not necessary for Appellant to avail himself of the

rehabilitation options in prison, nor necessary to ensure the safety of the

public. See Appellant's Pa.R.A.P. 1925(b) Statement at                1111   15-16. We note

that Appellant must still articulate the manner                in which the sentence is

inconsistent with the Code or contrary to its norms. Mouzon, 812 A.2d at

627-28. Appellant does not identify       a   specific provision of the Code with which

the sentence was inconsistent.          Further,    a      claim the trial court failed to

consider an appellant's rehabilitative needs also fails to raise               a   substantial

question.    See Commonwealth v. Cannon, 54 A.2d 1222, 1228-29 (Pa.

Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 893 (2009) (claim that



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the trial court failed to consider the defendant's rehabilitative needs, age, and

educational background did not present        a   substantial question);

        Thus, we cannot conclude, based on the record, that the sentencing

court in any other way imposed       a   harsh and excessive sentence that was

disproportionate to the underlying violations and circumstances.                 See

Commonwealth v. Kalichak, 943 A.2d 285, 292                 (Pa. Super. 2008).   The

court appropriately considered all factors relevant to sentencing.

        In short, we agree with Attorney Maurer that Appellant's two issues are

frivolous. We have independently reviewed the record and find no other issues

of arguable merit that he could pursue on appeal.             Accordingly, we affirm

Appellant's judgment of sentence and grant counsel's petition to withdraw.

        Petition   to withdraw   granted.         Judgment of sentence affirmed.

Jurisdiction relinquished.

Judgment Entered.




  seph D. Seletyn,
Prothonotary



Date: 2/7/18




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