J-S10042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JEREMY ABEL,

                            Appellant                    No. 2340 EDA 2015


           Appeal from the Judgment of Sentence September 6, 2013
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0002373-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED FEBRUARY 08, 2016

        Appellant, Jeremy Abel, appeals nunc pro tunc from the judgment of

sentence imposed following his conviction of two counts of involuntary

deviate sexual intercourse with a child (IDSI),1 and one count of rape of a

child.2    Appellant’s counsel has filed a brief and a petition to withdraw

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the

appeal is wholly frivolous.        We affirm the judgment of sentence and grant

counsel’s request to withdraw.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3123(b).
2
    18 Pa.C.S.A. § 3121(c).
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       After Pottstown Police arrested him on March 5, 2012, Appellant

confessed to numerous sexual offenses with his niece and nephew, while he

was babysitting for his sister.         The crimes occurred in 2011, when the

children were seven and four years old, respectively. The crimes included

anal and oral rape of the children.

       On February 4, 2013, after a written and oral colloquy, Appellant

proceeded to a stipulated bench trial at which the trial court judge found him

guilty of the three offenses noted. On September 6, 2013, after testimony

and a written report from Sexual Offenders Assessment Board (SOAB)

expert Dr. Jennifer Hahn, the court found Appellant to be a sexually violent

predator.    On the same day the court sentenced him to three concurrent

terms of not less than twenty nor more than forty years’ incarceration. The

court had the benefit of a pre-sentence investigation report.              (See Trial

Court Opinion, 10/06/15, at 4).                Appellant did not file a post-sentence

motion or a direct appeal.

       After Appellant filed a pro se motion for post-conviction collateral relief

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, on

September 24, 2014, the PCRA court reinstated his direct appeal rights.

(See Order, 7/29/15). This nunc pro tunc appeal followed.3

____________________________________________


3
  Newly appointed counsel complied with the trial court’s directive to file a
concise statement of errors on Appellant’s behalf.        (See Statement,
9/14/15); see also Pa.R.A.P. 1925(b).



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      On November 17, 2015 counsel filed a petition for leave to withdraw

from further representation.   Counsel contemporaneously filed an Anders

brief. Appellant has not responded to the petition to withdraw.

      When we receive an Anders brief, we first rule on the petition to

withdraw and then review the merits of the underlying issues.               See

Commonwealth v. Garang, 9 A.3d 237, 240–41 (Pa. Super. 2010).                In

addition, “[p]art and parcel of Anders is our Court’s duty to review the

record to insure no issues of arguable merit have been missed or misstated.”

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

      Appellant’s counsel has petitioned for permission to withdraw and has

submitted an Anders brief, which is procedurally proper for counsel seeking

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed

counsel who seeks to withdraw from representing an appellant on direct

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

Santiago, supra at 361.

      In the instant matter, counsel has substantially complied with all the

requirements of Anders and Santiago. Specifically, he has petitioned this

Court to withdraw after concluding that an appeal to this Court would be

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“wholly frivolous.” (Petition for Leave to Withdraw as Appellant’s Counsel,

11/17/15, at 1).

       In addition, after his review of the record, counsel filed a brief with this

Court that provides a summary of the procedural history and facts with

citations to the record, refers to any facts or legal theories that arguably

support the appeal, and explains why he believes the appeal is frivolous.

(See Anders Brief, at 2-14). Finally, he has attached, as an exhibit to his

petition to withdraw, a copy of the letter he sent to Appellant giving notice of

his rights, and including a copy of the Anders brief and the petition. (See

Petition, at 1-2); see also Commonwealth v. Millisock, 873 A.2d 748,

749 (Pa. Super. 2005).

       Because counsel has substantially complied with the requirements of

Anders, Santiago, and Millisock, we will examine the issues set forth in

the Anders brief that counsel believes could have arguable merit.             See

Garang, supra at 240–41.

       Here, the sole question raised in the Anders Brief is whether the trial

court abused its discretion by imposing a harsh and excessive sentence

under the circumstances. (See Anders Brief, at 1).4 This issue challenges

the discretionary aspects of Appellant’s sentence. (See id. at 9-13).

____________________________________________


4
  The Commonwealth did not file a brief in this case; instead it filed a letter
of agreement with counsel’s Anders brief. (See Letter of Deputy District
Attorney to Deputy Prothonotary of Pennsylvania Superior Court, 11/20/15).



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            Sentencing is a matter vested in the sound discretion of
      the trial court and will not be disturbed on appeal absent an
      abuse of discretion. In imposing a sentence, the trial judge may
      determine whether, given the facts of a particular case, a
      sentence should run consecutive to or concurrent with another
      sentence being imposed.

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

omitted).

      Additionally, the right to appeal the discretionary aspects of a sentence

is not absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant

challenges the discretionary aspects of the sentence imposed, he must

present “a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).   Pursuant to Pennsylvania Rule of Appellate Procedure

2119(f), an appellant must articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to   the    fundamental    norms   underlying    the   sentencing    scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted).

      Here, counsel has not included a Rule 2119(f) statement in the

Anders brief.   Nevertheless, in light of counsel’s petition to withdraw, we

will address the claim. See Lilley, supra at 998 (citing Commonwealth v.

Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) (concluding that Anders

requires review of issues otherwise waived on appeal)).

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      Here, we discern no basis to disagree with counsel’s conclusion that

the trial court properly exercised its discretion in sentencing Appellant. (See

Anders brief, at 9-10).

      The sentencing court had the benefit of a PSI. “Where pre-sentence

reports exist, we shall . . . presume that the sentencing judge was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.        A pre-sentence

report constitutes the record and speaks for itself.”     Commonwealth v.

Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014), appeal denied, 95 A.3d

275 (Pa. 2014) (citation omitted).

      The   sentencing    court   chose   to   impose   the   three   sentences

concurrently rather than consecutively, which it had the prerogative to do.

See Lilley, supra at 998. The sentence was within the standard range of

the Sentencing Guidelines. (See Trial Ct. Op., at 4).

      Appellant is a sexually violent predator, with a diagnosis of pedophilia,

who took advantage of his position of trust as an uncle to engage in

predatory sexual offenses against his niece and nephew.         Dr. Hahn, the

SOAB expert, testified that Appellant’s likelihood of reoffending is supported

by the multiple victims involved in these crimes, and by his history of having

committed a similar offense previously as a juvenile against another four

year-old boy.    (See N.T. SVP/Sentencing, 9/06/13, at 11, 13).            The

sentencing court noted that probation was clearly inappropriate, and a lesser


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sentence would depreciate the seriousness of the crimes. (See id. at 50).

We discern no basis to disturb the court’s sentence.

     Appellant’s issue does not merit relief.   Furthermore, this Court has

conducted an independent review of the record as required by Anders and

Santiago and concludes that no non-frivolous issues exist.

     Judgment of sentence affirmed.        Petition to withdraw as counsel

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2016




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