J-S59006-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 :     IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
                           Appellee           :
                                              :
              v.                              :
                                              :
MAURICE RAY,                                  :
                                              :
                           Appellant          :     No. 2078 EDA 2013


        Appeal from the Judgment of Sentence Entered February 12, 2013,
                  In the Court of Common Pleas of Bucks County,
                Criminal Division, at No. CP-09-CR-0006853-2012.


BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                                FILED OCTOBER 21, 2014

        Maurice Ray (“Appellant”) appeals from the judgment of sentence

imposed after he pled guilty to robbery, aggravated assault, simple assault,

terroristic threats, resisting arrest, theft by unlawful taking, and receiving

stolen property. Appellant’s counsel has filed a petition to withdraw and a

brief    pursuant   to    Anders      v.   California,    386    U.S.    738   (1967),

Commonwealth         v.   McClendon,        434   A.2d    1185    (Pa.   1981),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

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

        The trial court summarized the factual and procedural history of this

case as follows:



*Retired Senior Judge assigned to the Superior Court.
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            On September 21, 2012, Detective Thomas Jackson and
     Daniel Errigo of the Bensalem Police Department responded to
     the Fulton Bank located at 2100 Street Road in Bensalem for the
     report of a robbery. It was reported that a black male wearing a
     white ski hat, sunglasses, and a tan or plaid shirt handed the
     teller a note saying he had a gun. The note read put the money
     in the bag, I have a gun. The teller was extremely scared and
     proceeded to put the money inside a bag that Appellant gave her
     and gave it back to him. Appellant then fled the bank out the
     east doors. N.T. 4/5/13, pp. 4–5.

            A canine track led to the McDonald’s located on Street
     Road in Bensalem.            Bensalem Officers Hill, Bailey,
     Deppenschmidt, and Corporal Schwartz, along with a Bristol
     canine officer and the canine located Appellant in the
     McDonald’s. As officers attempted to detain him, Appellant
     shoved Corporal Schwartz and other officers out of the way in an
     attempt to flee. In a further attempt to elude police, Appellant
     threw metal chairs at the officers, one of which struck the Bristol
     officer and the canine. N.T. 4/5/13, p. 5.

            A black nylon bag containing a large amount of cash was
     recovered from the area where Appellant was sitting. Two of the
     employees from the bank were brought to the scene and
     identified Appellant as the subject who had robbed the bank.
     Appellant was interviewed at headquarters, and he admitted to
     robbing the bank. He stated that [he] had written a note a
     couple of hours earlier and had watched the bank for a couple of
     hours before committing the robbery. N.T. 4/5/13, pp. 5–6.

           Appellant pled guilty on November 29, 2012 and sentence
     was imposed on February 12, 2013. At both the Sentencing
     Hearing and Reconsideration Hearing, defense counsel presented
     evidence of Appellant’s difficult childhood and lack of family
     support.     Defense counsel also presented evidence that
     [Appellant] had no permanent home, and had recently lost a job
     at a restaurant. In determining the appropriate sentence, this
     Court took into consideration the mitigating evidence presented
     by Appellant. However, we also considered the protection of the
     public, Appellant’s need for rehabilitation, the gravity of the
     particular offense as it relates to the impact on the victim and
     the community, and the sentencing guidelines.


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                                     * * *
            Accordingly, Appellant was sentenced to four (4) to eight
      (8) years in a state correctional institution.

            Appellant filed a Post-Sentence Motion for Reconsideration
      of Sentence on November [sic] February 26, 2013.             After
      entertaining the arguments of counsel on April 5, 2013, we
      denied [Appellant’s] Post-Sentence Motion. On July 1, 2013, this
      Court granted Appellant’s Motion to reinstate direct appeal rights
      Nunc Pro Tunc. On July 19, 2013, Appellant filed a Notice of
      Appeal. On July 30, 2013, Appellant was directed to file a
      Concise Statement of Matters Complained of on Appeal and did
      so August 13, 2013.

Trial Court Opinion, 8/29/13, at 2–4.

      Before we address the questions raised on appeal, we first must

resolve appellate counsel’s request to withdraw.         Commonwealth v.

Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural

and briefing requirements imposed upon an attorney who seeks to withdraw

on appeal. The procedural mandates require counsel to:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted a conscientious examination

of the record.   Following that review, counsel concluded that the present


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appeal is wholly frivolous.   Counsel sent Appellant a copy of the Anders

brief and petition to withdraw, as well as a letter, a copy of which is included

with the Anders brief. In the letter, counsel advised Appellant that he could

represent himself or that he could retain private counsel to represent him.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

      in 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 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Upon review, we conclude that counsel’s brief is compliant with

Santiago. It sets forth the factual and procedural history of this case, cites

to the record, and refers to issues that counsel arguably believes support the

appeal.   Anders Brief at 5-8.       Further, the brief sets forth counsel’s

conclusion that the appeal is frivolous, and it contains pertinent case

authority and counsel’s reasons for concluding that the appeal is frivolous.

Id. at 9–15.




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      We are satisfied that counsel has met the requirements set forth in

Cartrette; therefore, we now address the issues raised in the Anders brief,

which are set forth below:

      1.    Did the sentencing court abuse its discretion in imposing
            its sentence?

      2.    Whether a petition to withdraw as counsel and request for
            dismissal of an appeal should be granted where counsel
            has diligently investigated the possible grounds for appeal
            and finds the appeal frivolous?

Anders Brief at 4 (full capitalization omitted; reordered for ease of

disposition).

      Appellant contends that the sentence imposed was an abuse of the

trial court’s discretion. Such a claim challenges the discretionary aspects of

the sentence, and it is well-settled that there is no absolute right to appeal

the discretionary aspects of a sentence.    Commonwealth v. Hartle, 894

A.2d 800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be

considered to be a petition for allowance of appeal.     Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

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

            [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

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              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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

     Whether a particular issue constitutes a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-

case basis.    Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).    As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id. “A

substantial question will be found where the defendant advances a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citations omitted).

     Herein, the first three requirements of the four-part test are met;

Appellant brought an appropriate appeal, raised the challenge in his post-

sentence motions, and included in his appellate brief the necessary separate

concise statement of the reasons relied upon for allowance of appeal

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pursuant to Pa.R.A.P. 2119(f).      Therefore, we next determine whether

Appellant has raised a substantial question requiring us to review the

discretionary aspects of the sentence imposed by the trial court.

      Specifically, in his Pa.R.A.P. 2119(f) statement, Appellant claims that:

      the lower court failed to consider mitigating factors which it must
      in order to make the sentence reasonable. A claim that the
      sentencing court imposed a “clearly unreasonable” sentence,
      presents a substantial question and is reviewable on appeal.
      See Commonwealth v. Drumgoole, 341 Pa. Super. 468, 491 A.2d
      1352 (1985).

Anders Brief at 12–13.

      We conclude that Appellant’s claim challenging the weight afforded to

certain mitigating factors does not raise a substantial question that his low-

standard-range sentence is inappropriate. An allegation that the sentencing

court failed to consider mitigating factors generally does not raise a

substantial question for our review. Commonwealth v. Disalvo, 70 A.3d

900, 903 (Pa. Super. 2013); Commonwealth v. Rhoades, 8 A.3d 912,

918–919 (Pa. Super. 2010). Because Appellant’s concise statement fails to

raise a substantial question, he is not entitled to relief on his sentencing

claim.1




1
  We note that the record belies Appellant’s sentencing challenge. The trial
court had the benefit of counsel’s advocacy and Appellant’s testimony
regarding his troubled childhood, his prior record, programs he participated
in while incarcerated, his hunger, desperation, and mental health, his
unemployment, his lack of family support and housing. N.T. (Sentencing),

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      Insomuch as Appellant’s claim does not warrant relief, we answer the

second question presented affirmatively. Following our independent review

of the record, we conclude that Appellant’s appeal is wholly frivolous, and we

affirm the judgment of sentence.      Moreover, as we agree with counsel’s

assessment of the appeal, and because we conclude that counsel has

satisfied the requirements for withdrawal, we grant counsel’s petition to

withdraw.

      Judgment of sentence affirmed.         Petition to withdraw granted.

Jurisdiction relinquished.




2/12/13, at 5–21; N.T. (Reconsideration), 4/5/13, at 7–15. In disposing of
Appellant’s sentencing challenge, the trial court opined as follows:

            Appellant pled guilty to Count 1-Robbery, a first-degree
      Felony, with a prior record score of 4 and an Offense Gravity
      Score of 10. The sentencing guidelines call for forty-eight to
      sixty months in the standard range, seventy-two months in the
      aggravated range. Appellant received a sentence in the low end
      of the standard range of four (4) to eight (8) years. Appellant
      received no further penalty on the remaining counts. It is
      apparent from the record that this Court took into account the
      mitigating evidence presented by [Appellant], in addition to
      considering the other necessary factors to reach the appropriate
      sentence.

Trial Court Opinion, 8/27/13, at 6.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




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