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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                       Appellee                 :
                                                :
                v.                              :
                                                :
    DESHAUNDRE JAMAL WILLIAMS                   :
                                                :
                       Appellant                :      No. 1181 WDA 2019

         Appeal from the Judgment of Sentence Entered June 18, 2019
                  In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000019-2019


BEFORE:      GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY GANTMAN, P.J.E.:                         FILED JANUARY 17, 2020

        Appellant, Deshaundre Jamal Williams, appeals from the judgment of

sentence entered in the Erie County Court of Common Pleas, following his

guilty plea to one count each of robbery and firearms not to be carried without

a license.1 We affirm and grant counsel’s petition to withdraw.

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

November 22, 2018, Appellant struck Victim in the back of the head with a

handgun and stole Victim’s cell phone. Appellant entered a guilty plea to the

charged offenses on April 3, 2019.             With the benefit of a pre-sentence

investigation (“PSI”) report, the court sentenced Appellant on June 18, 2019,


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3701(a)(1)(iv) and 6106(a)(1), respectively.
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to an aggregate thirty-one (31) to sixty-two (62) months’ incarceration. On

June 25, 2019, Appellant timely filed a post-sentence motion, which the court

denied on July 9, 2019. Appellant timely filed a notice of appeal on August 6,

2019.    On August 7, 2019, the court ordered Appellant to file a concise

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

In lieu of a concise statement, counsel filed a Rule 1925(c)(4) statement on

August 12, 2019, of intent to file an Anders brief.       On August 23, 2019,

counsel (a public defender) filed in this Court a petition to withdraw as counsel

because different counsel from the public defender’s office had entered an

appearance on Appellant’s behalf. This Court granted counsel’s petition on

August 27, 2019. On October 7, 2019, new counsel filed in this Court an

application to withdraw and an Anders brief.

        As a preliminary matter, counsel seeks to withdraw 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,


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

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

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). See also Commonwealth v. Dempster, 187 A.3d

266 (Pa.Super. 2018) (en banc).

      In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor [Commonwealth v. McClendon, 495
          Pa. 467, 434 A.2d 1185 (1981)] 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

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          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.

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

      Instantly, Appellant’s counsel has 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 on appeal pro se to raise any additional issues Appellant

deems worthy of this Court’s attention. In the Anders brief, counsel provides

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

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

issues. Counsel further states the reasons for counsel’s conclusion that the

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

the technical requirements of Anders and Santiago.

      Appellant has not responded to the Anders brief pro se or with newly-

retained private counsel. Counsel raises the following issue on Appellant’s

behalf:

          WHETHER…APPELLANT’S    SENTENCE   IS   MANIFESTLY
          EXCESSIVE, CLEARLY UNREASONABLE AND INCONSISTENT
          WITH THE OBJECTIVES OF THE SENTENCING CODE?

(Anders Brief at 3).

      Appellant argues his sentence of 31 to 62 months’ incarceration is

excessive and an abuse of the court’s discretion.      Appellant contends the


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objectives of 42 Pa.C.S.A. § 9721(b) of the Sentencing Code could have been

achieved without the imposition of such a lengthy sentence. Appellant further

avers the court failed to consider certain mitigating factors, such as (1)

Appellant’s young age at the time of the offense; (2) Appellant’s lack of any

significant criminal history; (3) Appellant’s guilty plea and acceptance of

responsibility for his crimes; and (4) the remorse Appellant expressed at the

sentencing hearing.          As presented, Appellant’s claims challenge the

discretionary aspects of his sentence. See Commonwealth v. Lutes, 793

A.2d 949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly

excessive challenges discretionary aspects of sentencing); Commonwealth

v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.

653, 676 A.2d 1195 (1996) (explaining claim that court did not consider

mitigating factors challenges discretionary aspects of sentencing).2

       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 sentencing



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2 “[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 plea was “open” as
to sentencing, so he can challenge the discretionary aspects of his sentence.

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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) (internal citations omitted).

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

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387

(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks

omitted).


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      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”      Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741

A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790

A.2d 1013 (2001)).

      A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

a substantial question will be found “only where the appellant’s Rule 2119(f)

statement sufficiently articulates 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….”

Id. Nevertheless, “[a]n allegation that a sentencing court ‘failed to consider’

or ‘did not adequately consider’ certain factors does not raise a substantial

question that the sentence was inappropriate.” Cruz-Centeno, supra at 545

(quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995),


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appeal    denied,   541   Pa.   625,   661   A.2d   873   (1995)).    See   also

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining

allegation that sentencing court failed to consider specific mitigating factor

generally does not raise substantial question; claim that sentencing court

ignored appellant’s rehabilitative needs failed to raise substantial question).

      “Where [PSI] reports exist, we shall continue to presume that the

sentencing judge was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18

(1988).

          A [PSI] report constitutes the record and speaks for itself.
          In order to dispel any lingering doubt as to our intention of
          engaging in an effort of legal purification, we state clearly
          that [sentencing courts] are under no compulsion to employ
          checklists or any extended or systematic definitions of their
          punishment procedure. Having been fully informed by the
          pre-sentence report, the sentencing court’s discretion
          should not be disturbed. This is particularly true, we repeat,
          in those circumstances where it can be demonstrated that
          the judge had any degree of awareness of the sentencing
          considerations, and there we will presume also that the
          weighing process took place in a meaningful fashion.

Id. at 102, 546 A.2d at 18. See also Tirado, supra (explaining if sentencing

court has benefit of PSI, law presumes court was aware of relevant information

regarding appellant’s character and weighed those considerations along with

mitigating factors).

      Instantly, Appellant has properly preserved his sentencing issue for

appeal. Nevertheless, Appellant’s bald allegation of excessiveness does not

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warrant review.     See Mouzon, supra.         Likewise, Appellant’s claim the

sentencing court failed to consider certain mitigating factors does not pose a

substantial question. See Berry, supra; Cruz-Centeno, supra. Moreover,

the court had the benefit of a PSI report. Therefore, we can presume the

court    was   aware   of   the   relevant   information   regarding   mitigating

circumstances.    See Devers, supra; see also Tirado, supra.               Thus,

Appellant is not entitled to relief on these grounds. Following an independent

review of the record, we agree with counsel that the appeal is wholly frivolous.

See Dempster, supra. Accordingly, we affirm the judgment of sentence and

grant counsel’s petition to withdraw.

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

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/2020




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