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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                     v.                     :
                                            :
MICHAEL TODD TORAN, JR.,                    :
                                            :
                           Appellant        :     No. 954 WDA 2015


              Appeal from the Judgment of Sentence June 3, 2015
                  In the Court of Common Pleas of Erie County
               Criminal Division No(s).: CP-25-CR-0000047-2014

BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                          FILED FEBRUARY 25, 2016

        Appellant, Michael Todd Toran, appeals from the judgment of sentence

entered in the Court of Common Pleas of Erie County on June 3, 2015,

following     his    conviction   one   count   each   of   robbery,1   criminal

conspiracy/robbery,2 theft by unlawful taking,3 receiving stolen property,4

and two counts of recklessly endangering another person.5           Appellant’s

counsel filed a petition to withdraw as counsel and brief pursuant to Anders

1
    18 P.S. § 3701(a)(1)(ii).
2
    18 P.S. § 903/3701(a)(1)(iv).
3
    18 P.S. § 3921(a).
4
    18 P.S. § 3925(a).
5
    18 P.S. §2705.
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v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.3d 349 (Pa. 2009).      We affirm the judgment of sentence and grant the

petition to withdraw.

         The relevant factual and procedural history is as follows. On October

5, 2013, Appellant robbed Lisa Gorton and Jodi Deickhoff at gunpoint at

Barbato’s Restaurant in Erie.        On November 10, 2014, a jury convicted

Appellant of the above charges. The trial court ordered that a pre-sentence

investigation report be prepared.       At Appellant’s sentencing hearing, the

Commonwealth informed the trial court that the sentencing guideline form in

the    presentence   investigative   report   contained   a   typographical   error

identifying the robbery charge against Appellant as a second-degree felony,

rather than a first-degree felony. On January 27, 2015, the court sentenced

Appellant to an aggregate term of four to eight years’ incarceration.6

        On February 3, 2015, the Commonwealth filed a post-sentence motion

to reconsider the sentence, asking the court to add a harsher penalty for a

deadly weapons enhancement. The Commonwealth noted in its motion that

the criminal information contained the correct statutory citation for first-

degree robbery,7 and the legal and factual basis for robbery charge, so that




6
  Appellant’s convictions on the other charges merged with the robbery
conviction for purposes of sentencing.
7
    18 Pa.C.S. § 3701(a)(1)(ii).



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Appellant had sufficient notice to prepare a defense.     After a hearing, the

trial court granted the Commonwealth’s motion to reconsider sentence.

        A second sentencing hearing took place on June 3, 2015.      Following

the hearing, the trial court sentenced Appellant to the mandatory minimum

of ten to twenty years’ incarceration for the robbery conviction, and a

concurrent term of five to ten years’ incarceration for the criminal

conspiracy/robbery conviction.8      Appellant timely appealed on June 12,

2015.

        On June 16, 2015, the trial court directed Appellant to file a Rule

1925(b) statement within twenty-one (21) days.        In response, Appellant’s

trial counsel filed a Statement of Intent to file an Anders brief in lieu of a

Rule 1925(b) concise statement pursuant to Pa.R.A.P. 1925(c)(4), 9 asserting

that there were no meritorious issues to raise on appeal.      On August 10,

2015, the trial court ordered that, in light of counsel’s Rule 1925(c)(4)

statement, no Rule 1925(a) opinion was necessary.               Subsequently,

Appellant’s appellate counsel filed a brief and petition to withdraw pursuant


8
  Appellant’s convictions on the other charges merged with the robbery
conviction for purposes of sentencing.
9
    Pa.R.A.P. 1925(c)(4) provides as follows:

           In a criminal case, counsel may file of record and serve on
           the   judge    a    statement  of     intent   to  file  an
           Anders/McClendon brief in lieu of filing a Statement.

Pa.R.A.P. 1925(c)(4).



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to Anders and Santiago, supra.          Appellant filed a response to Counsel’s

petition.

      Before we address the merits of this appeal, we must determine

whether counsel has followed the procedures for filing a brief and petition to

withdraw pursuant to Anders and its progeny.              Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).            Counsel who

wishes to withdraw must file a petition to withdraw explaining that he or she

made a conscientious examination of the record and determined that an

appeal would be frivolous. Commonwealth v. Wright, 846 A.2d 730, 736

(Pa. Super. 2004). Also, counsel must provide a copy of the Anders brief to

the appellant and inform him of his right to proceed pro se,10 retain different

counsel, or assert issues not included in the Anders brief.      In the instant

matter, counsel complied with these procedural requirements.

      Next, we consider counsel’s brief, which must comport with the

following:

                   [T]he Anders brief that accompanies court-
            appointed counsel’s petition to withdraw … 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 arguable 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


10
  The record shows that Appellant did not retain alternate counsel for this
appeal, but did file a pro se brief.



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        statutes on point that led to the conclusion that the appeal
        is frivolous.

Santiago, 978 A.2d at 361.

     In her Ander’s brief, counsel raises one issue: whether Appellant’s

sentence is manifestly excessive, clearly unreasonable, and inconsistent with

the objectives of the Sentencing Code, 42 Pa.C.S. § 9721(b), given the

mitigating factors of his case.   Anders Brief at 3, 5-6.   This question in

essence challenges the discretionary aspects of his sentence.

     An appeal from the discretionary aspects of sentencing is not

guaranteed as a matter of right.     Commonwealth v. Mastromarino, 2

A.3d 581, 585 (Pa. Super. 2010). Pennsylvania Rule of Appellate Procedure

2119(f) requires that “[a]n appellant who challenges the discretionary

aspects of a sentence in a criminal matter shall set forth in his brief a

concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.     The statement shall

immediately precede the argument on the merits with respect to the

discretionary aspects of sentence.” Pa.R.A.P. 2119(f). In the instant case,

the Ander’s Brief contains a statement pursuant to Pa.R.A.P. 2119(f)

immediately preceding the argument section of the brief.

     In the Pa.R.A.P. 2119(f) statement, Appellant avers that the trial court

abused its discretion in sentencing him to the mandatory minimum sentence

“given the mitigating factors of the case.” Anders Brief at 6. A claim that a

sentencing court failed to consider mitigating factors does not raise a


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substantial    question      that    the    sentence   is   inappropriate.    See

Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006).                  Thus,

Appellant has failed to present a substantial question for our review. See

Mastromarino, 2 A.3d at 585-86; Lewis, 911 A.2d at 567.

      Moreover, even if the failure to consider mitigating factors did raise a

substantial question that this Court could review, the record reveals that

counsel did not present the trial court with any mitigating factors for

consideration. Therefore, it is specious for Appellant to argue on appeal that

the trial court erred in not considering mitigating factors. Accordingly, this

issue is wholly frivolous.

      In his pro se brief, Appellant sets forth mere allegations, without more,

that his trial counsel violated the rules of professional conduct and provided

ineffective assistance.      Appellant further avers that his procedural due

process rights were violated. Since Appellant has not supported his claims

with any citations to the record or to controlling authority these claims must

also fail. See Pa.R.A.P. 2119.

      When a defense attorney files an Anders brief, the appellate court

must conduct an independent review of the record to determine whether

there any meritorious issues counsel could have been raised.                  See

Santiago, 978 A.2d at 355 n.5.              We have reviewed the record and

concluded there are none.           For the aforementioned reasons, we grant

counsel’s petition to withdraw and affirm the judgment of sentence.



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      Judgment of sentence affirmed.        Counsel’s petition to withdraw

granted. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/25/2016




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