J-S78017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DONALD J. SHERILL

                            Appellant                  No. 1236 MDA 2014


             Appeal from the Judgment of Sentence April 11, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001065-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                           FILED JANUARY 14, 2015

        Appellant Donald J. Sherill appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas following his bench

trial conviction for aggravated assault.1      After review, we affirm and grant

counsel’s petition to withdraw.

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

On September 18, 2012, while serving a period of incarceration for criminal

attempt to commit homicide2 and criminal conspiracy to commit aggravated

assault,3 Appellant spit into one prison guard’s face and bit another prison

____________________________________________


1
    18 Pa.C.S. § 2702(a)(3).
2
    18 Pa.C.S. § 901; § 2501.
3
    18 Pa.C.S. § 903(a); § 2702(a).
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guard’s wrist. At the time of the assault, the two guards were attempting to

handcuff Appellant to transport him from the misconduct hearing room to

the restricted housing unit within the prison.         Appellant was charged with

aggravated assault and aggravated harassment by a prisoner.4

        On April 11, 2014, Appellant pled guilty to aggravated assault, and the

Commonwealth withdrew the aggravated harassment charge.                     The court

sentenced     Appellant     to    thirty-six   to   seventy-two   (36-72)    months’

incarceration to run consecutively to the sentence he was serving at the

time. On April 16, 2014, Appellant filed a post sentence motion, which the

court denied on May 6, 2014. Appellant timely filed a notice of appeal on

June 5, 2014, and the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).               Appellant

timely filed his Rule 1925(b) statement on June 26, 2014.            On September

16, 2014, Appellant’s counsel filed a petition for leave to withdraw along

with an Anders brief.

        As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 978 A.2d

349 (Pa.2009).       Prior to withdrawing as counsel on a direct appeal under




____________________________________________


4
    18 Pa.C.S. § 2703.1.



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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 must also provide a copy of the

Anders brief to the appellant, together with a letter that advises the

appellant of his or her 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, 936 A.2d 40 (Pa.2007).         Substantial

compliance with these requirements is sufficient.        Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the

antecedent requirements have been met, this Court must then make an

independent evaluation of the record to determine whether the appeal is, in

fact, wholly frivolous.”   Commonwealth v. Palm, 903 A.2d 1244, 1246

(Pa.Super.2006).

      Here, counsel filed a petition for leave to withdraw as counsel.      The

petition states counsel made a conscientious and extensive review of the

record and the law in this matter, and determined there were no non-


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frivolous issues to be raised on appeal.         The petition explains counsel

notified Appellant of the withdrawal request, supplied him with a copy of the

Anders brief, and sent Appellant a letter explaining his right to proceed pro

se or with new, privately-retained counsel to raise any additional points or

arguments that Appellant believed had merit. In the Anders brief, counsel

provides a summary of the facts and procedural history of the case with

citations to the record, refers to evidence of record that might arguably

support the issue raised on appeal, provides citations to relevant case law,

and states his conclusion that the appeal is wholly frivolous and his reasons

therefor. See Anders Brief, pp. 1-3. Accordingly, counsel has substantially

complied with the requirements of Anders and Santiago.

     As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issue raised

in the Anders brief:

        WHETHER THE TRIAL COURT ERRED BY MAKING THE
        SENTENCE TO BE SERVED [CONSECUTIVE] RATHER THAN
        [CONCURRENT] TO [APPELLANT’S] PREVIOUS SENTENCE?

Anders Brief at 1.

     In the Anders brief, counsel states he found nothing that arguably

supports an appeal, because Appellant challenges the discretionary aspects

of sentencing without raising a substantial question. We agree.

     When reviewing a challenge to the discretionary aspects of sentencing,

we   determine   whether   the   trial   court   has   abused   its   discretion.

Commonwealth v. Seagraves, ___ A.3d ___, 2014 PA Super 252, *3

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(Nov. 6, 2014). “Challenges to the discretionary aspects of sentencing do

not entitle a petitioner to review as of right.” Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011).      Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Allen, 24 A.3d at 1064.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

         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.

Id. (internal citations omitted). A court’s exercise of discretion in imposing

a sentence concurrently or consecutively does not ordinarily raise a

substantial question.     Commonwealth v. Mastromarino, 2 A.3d 581

(Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011).           In fact, the

imposition of consecutive rather than concurrent sentences will only present


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a substantial question in “the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d

365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).

      Presently, Appellant filed a timely notice of appeal and preserved his

issues in a post sentence motion.       Appellant’s brief, however, does not

include a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).      Nevertheless, in light of Counsel’s

petition to withdraw, we will proceed to address whether Appellant raises a

substantial question.   See Commonwealth v. Lilley, 978 A.2d 995, 998

(Pa.Super.2009) (observing that Anders requires review of issues otherwise

waived on appeal).

      Appellant was sentenced to thirty-six to seventy-two (36-72) months’

incarceration for spitting on and biting prison guards while he was already

incarcerated. The aggregate sentence is not unduly harsh, considering the

nature of the crimes and the length of imprisonment.        Thus, Appellant’s

challenge to the discretionary aspects of his sentence does not present a

substantial question. See Lamonda, supra.

      Because Appellant does not raise a substantial question, we need not

address whether the court abused its discretion in the imposition of its

sentence. Further, after an independent review of the record, we agree with

Counsel that this appeal is wholly frivolous.


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     Judgment of sentence affirmed.   Counsel’s petition to withdraw

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2015




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