J-S15019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

SHAWN W. SHAFER

                            Appellant                  No. 1237 MDA 2014


            Appeal from the Judgment of Sentence of June 11, 2013
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No.: CP-40-CR-0003182-2012

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                               FILED MARCH 19, 2015

       Shawn W. Shafer appeals from the judgment of sentence imposed

following his entry of guilty pleas to robbery, escape, resisting arrest, and

possessing instruments of crime (“PIC”).1 Counsel for Shafer has petitioned

for leave to withdraw as counsel on the ground that Shafer’s issue on direct

appeal is wholly frivolous.       We grant the petition for leave to withdraw as

counsel, and we affirm the judgment of sentence.

       The trial court set forth the underlying procedural history of this case

as follows:2


____________________________________________


1
       18 Pa.C.S.A. §§ 3701(a)(1)(iv), 5121(a), 5104, and 907, respectively.
2
      The facts underlying Shafer’s guilty plea are immaterial to our
disposition. Therefore, we need not recite them here.
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      The [c]ourt accepted [Shafer’s] guilty pleas at a hearing on
      March 15, 2013.     A Pre-Sentence Investigation (PSI) was
      ordered to be completed by the Luzerne County Adult Probation
      and Parole Department, and a sentencing hearing was
      scheduled.

      On June 11, 2013, [Shafer] appeared before the [c]ourt for
      sentencing. Upon a review of the PSI and upon consideration of
      the submissions made by [Shafer] and counsel at the sentencing
      hearing, [the court] determined that sentences within the
      standard range of the applicable sentencing guidelines were
      appropriate.     Accordingly, [Shafer] was sentenced to an
      aggregate term of seventy[-]five (75) months to one hundred
      fifty (150) months in a state correctional institution.
      Additionally, although [the court] ordered Count 4 to be served
      concurrently with the sentence on Count 2, Counts 7 and 8 were
      ordered to be served consecutive [sic] to each other,
      consecutive to Count 2, and consecutive to any other sentence
      [Shafer] was then serving. [Shafer] was subsequently advised
      of his post-sentence rights before the hearing concluded.

      [After a series of attempts to appeal pro se and orders issued by
      this Court, o]n June 4, 2014, [Shafer] filed a [counseled] Motion
      to Modify Sentence which [the trial court] denied by Order of the
      same date. A Nunc Pro Tunc Notice of Appeal was filed on June
      19, 2014, and on June 2[3], 2014, [the court] ordered [Shafer]
      to filed a Concise Statement of Errors Complained of on Appeal
      pursuant to Pa.R.A.P. 1925(b) and requested the Commonwealth
      to respond thereto.

      On July 2, 2014, [Shafer] filed his Concise Statement . . . . The
      Commonwealth’s response was filed on July 10, 2014.

Trial Court Opinion (“T.C.O.”), 9/25/2014, at 1-2.

      On September 25, 2014, the trial court entered its Pa.R.A.P. 1925(a)

opinion, in which it reviewed Shafer’s sentence and concluded that Shafer

had failed to raise a substantial question that his sentence was contrary to

the fundamental norms or a violation of a provision of the Sentencing Code.

Id. at 3-5.


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       On November 14, 2014, counsel for Shafer filed an Anders brief in

which she presented issues that might arguably support an appeal.3 Counsel

filed her petition for leave to withdraw as counsel on the same day, stating

that, after a conscientious examination of the record, she determined that

the appeal would be wholly frivolous. See Petition for Leave to Withdraw as

Counsel, 11/14/2014, at unnumbered page 1 ¶ 2. Attached to the petition is

a copy of her letter to Shafer advising him of her intent to seek withdrawal

as his counsel and of Shafer’s right to retain new counsel or to proceed with

his appeal pro se, and providing him with a copy of the Anders brief filed

with this Court.      See id. at Attachment.     Shafer has not responded to

counsel’s petition for leave to withdraw.

       [I]n the Anders brief that accompanies . . . 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
       on point that have led to the conclusion that the appeal is
       frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

       Anders counsel must also provide a copy of the Anders petition
       and brief to the appellant, advising the appellant of the right to
____________________________________________


3
     See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).




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      retain new counsel, proceed pro se or raise any additional points
      worthy of this Court’s attention.

      If counsel does not fulfill the aforesaid technical requirements of
      Anders, this Court will deny the petition to withdraw and
      remand the case with appropriate instructions (e.g., directing
      counsel either to comply with Anders or file an advocate’s brief
      on Appellant’s behalf). By contrast, if counsel’s petition and
      brief satisfy Anders, we will then undertake our own review of
      the appeal to determine if it is wholly frivolous. If the appeal is
      frivolous, we will grant the withdrawal petition and affirm the
      judgment of sentence.        However, if there are non-frivolous
      issues, we will deny the petition and remand for the filing of an
      advocate’s brief.

Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)

(citations omitted).

      In the instant case, counsel has complied with the Anders and

Santiago requirements.     She has submitted a brief that summarizes the

case and cites to the record, see Anders Brief at 1-4; refers to anything

that might arguably support the appeal, id. at 5-6; and sets forth her

reasoning and conclusion that the appeal is frivolous, id. at 6-7.          See

Santiago, 978 A.2d at 361. She has filed a petition for leave to withdraw as

counsel, sent Shafer a letter advising him that she found no non-frivolous

issues, provided Shafer with a copy of the Anders brief, and notified Shafer

of his right to retain new counsel or proceed pro se.         Shafer has not

responded.

      “Once counsel has satisfied the [Anders] requirements, it is then this

Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly


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frivolous.” Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)

(citation omitted).

      The Anders brief raises one question for our review: “Whether the

consecutive   sentences   imposed    by    the   [trial   court]   are   harsh   and

excessive?” Anders Brief at 1.

      In her Anders brief, counsel asserts that Shafer’s “aggregate

sentence, imposed with certain counts running consecutively to each other

and the entire sentence running consecutively to any other sentence

currently being served, is harsh and excessive.” Id. at 5. We agree with

counsel that the issue is without merit.

      An argument premised upon the court’s order running a defendant’s

sentences consecutively is a challenge to the discretionary aspects of

sentencing. See Commonwealth v. Glass, 50 A.3d 720, 726 (Pa. Super.

2012).

      [A]ccordingly, pursuant to the dictates of 42 Pa.C.S.A. § 9781,
      [an appellant] must petition for allowance of appeal by including
      in his brief a separate, concise statement of the reasons relied
      upon for allowance of appeal. See Pa.R.A.P. 2119(f). The Rule
      2119(f) Statement must “raise a substantial question as to the
      appropriateness of the sentence” by demonstrating that the
      “actions of the sentencing court [were either] inconsistent with
      the Sentencing Code or contrary to the fundamental norms
      underlying the sentencing process.”

Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006) (case

citations omitted).




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      In the instant case, counsel’s Anders brief includes a statement of

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).

See Anders Brief at 5.      Shafer contends that his sentence is excessive

because the court imposed some sentences consecutive to each other, and

consecutive to any other sentences being served, despite Shafer’s “regret for

his criminal actions that were motivated by a drug addiction.”        Id. at 2

(citing Notes of Testimony (“N.T.”) Sentencing, 6/11/2013, at 10).

      “[A]n allegation that the sentencing court did not consider certain

mitigating factors does not raise a substantial question.” Commonwealth

v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003) (citation omitted).           “[An

a]ppellant’s claim that the trial court erred in ordering his sentences . . . to

run consecutively, instead of concurrently, to a previously imposed sentence

does not raise a substantial question.” Commonwealth v. Pass, 914 A.2d

442, 446 (Pa. Super. 2006).          Furthermore, in general, “a claim of

excessiveness of sentence does not raise a substantial question where the

sentence is within the statutory limits.”   Commonwealth v. Brown, 741

A.2d 726, 735 (Pa. Super. 1999).

      Shafer’s challenge to the discretionary aspects of his sentence for the

court’s alleged failure to consider mitigating factors while running his

sentences consecutively fails to raise a substantial question. Accordingly, his

petition for allowance of appeal of the discretionary aspects of his sentence

is frivolous. Furthermore, upon independent review, we find no other non-




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frivolous basis for appeal.   Therefore, we conclude that Shafer’s appeal is

wholly frivolous. O’Malley, 957 A.2d at 1266.

      Judgment of sentence affirmed.       Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2015




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