J-S03022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ADAM SCHRODER

                            Appellant                 No. 810 WDA 2016


          Appeal from the Judgment of Sentence dated April 29, 2016
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0002403-2015
                                        CP-25-CR-0003152-2015

BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                             FILED MARCH 02, 2017

        Appellant, Adam Schroder, appeals from the aggregate judgment of

sentence of 1-12 months’ confinement followed by 4 years’ probation, which

was imposed after he pleaded guilty to use/possession of drug paraphernalia

at Docket No. CP-25-CR-0002403-2015 and to theft by unlawful taking –

movable property at Docket No. CP-25-CR-0003152-2015.1                 With this

appeal, appellate counsel has filed a petition to withdraw and an Anders2

brief, stating that the appeal is wholly frivolous.   After careful review, we

affirm and grant counsel’s petition to withdraw.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(32) and 18 Pa.C.S. § 3921(a), respectively.
2
    Anders v. California, 386 U.S. 738 (1967).
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        On July 18, 2015, Appellant had “a multicolored glass smoking pipe for

the purpose of ingesting a controlled substance” – specifically, marijuana –

in his possession while in “the Borough of North East, Erie County.” N.T.,

3/8/16, at 9-10.

        On September 4, 2015, Appellant “took a laptop, a PlayStation and

several games having a total value of $600” and “a wooden peace sign

necklace and a pair of sunglasses having a value of $25” from a home also

in the Borough of North East; Appellant had “the intention of depriving the

owner or owners of that property.” N.T., 3/8/16, at 10.

        On March 8, 2016, Appellant pleaded guilty to the above charges. On

April 29, 2016, the trial court sentenced Appellant to 1-12 months’

confinement followed by 3 years’ probation at Docket No. 3152-2015 and to

1 year of probation at Docket No. 2403-2015, to be served consecutively.

N.T., 4/29/16, at 9-10. The trial court explained its reasoning for imposing

this sentence on the record, as follows:

        [The trial court has] read the presentence report. [It has] read
        the Sentencing Guidelines. [It has] listened to the evidence
        presented here today, and do[es] take into account [Appellant’s]
        age.[3]    [Appellant] graduated from high school, and that
        [Appellant] accept[s] responsibility by way of a plea. Although it
        was a favorable plea. But, nonetheless, [Appellant has] pled to
        the theft charge.[4]

____________________________________________


3
    Appellant was 19 years old at sentencing.
4
    Appellant also pleaded guilty to the drug paraphernalia charge.



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Id. at 9.

      On May 5, 2016, Appellant filed a motion for post-sentence relief,

which was denied by order the next day. On June 1, 2016, Appellant filed

this timely direct appeal.

      On October 27, 2016, appellate counsel filed an Anders Brief, in which

she presented the following issue:

      Whether the [A]ppellant’s sentence is manifestly excessive,
      clearly unreasonable and inconsistent with the objectives of the
      Sentencing Code?

Anders Brief at 3.      On the same day, appellate counsel sent a letter to

Appellant, informing him that she intended to file a petition for leave to

withdraw, and she filed her petition to withdraw. Appellant has not filed a

pro   se    response   to    that   petition.    On   November     28,   2016,    the

Commonwealth sent a letter to this Court stating that it did not intend to file

a responsive brief.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (internal citation omitted).         An Anders brief shall comply with the

requirements     set   forth   by    the   Supreme    Court   of   Pennsylvania    in

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

      [W]e hold 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


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      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.

      Counsel seeking to withdraw on direct appeal must meet the following

obligations to his or her client.

          Counsel must also provide a copy of the Anders brief to
          his client. Attending the brief must be a letter that advises
          the client of his right to: (1) retain new counsel to pursue
          the appeal; (2) proceed pro se on appeal; or (3) raise any
          points that the appellant deems worthy of the court’s
          attention in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks, citation, and brackets omitted).                 “Once counsel has

satisfied the above 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   frivolous.”

Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en

banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.

2004)).    Finally, “this Court must conduct an independent review of the

record to discern if there are any additional, non-frivolous issues overlooked

by counsel.”     Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.

Super. 2015) (footnote and citation omitted).

      In this appeal, we observe that appellate counsel’s October 27, 2016

correspondence to Appellant provided a copy of the Anders Brief to


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Appellant and advised Appellant of his right either to retain new counsel or

to proceed pro se on appeal to raise any points he deems worthy of the

court’s attention. Further, appellate counsel’s Anders Brief, at 4, complies

with prevailing law in that counsel has provided a procedural and factual

summary of the case with references to the record.           Appellate counsel

additionally advances relevant portions of the record that arguably support

Appellant’s claims on appeal. Id. at 8. Ultimately, appellate counsel cites

her reasons and conclusion that Appellant’s “case presents no non-frivolous

issues for review.”      Id. at 9.   Counsel’s Anders brief and procedures

therefore comply with the requirements of Santiago and Orellana.           We

therefore proceed to conduct an independent review to ascertain whether

the appeal is indeed wholly frivolous.

      We recognize that “Pennsylvania law makes clear that by entering a

guilty plea, the defendant waives his right to challenge on direct appeal all

non[-]jurisdictional defects except the legality of the sentence and the

validity of the plea.”   Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa.

Super. 2013) (citation omitted), appeal denied, 87 A.3d 319 (Pa. 2014). “A

defendant,” however, “who has pled guilty may challenge the discretionary

aspects of his sentence as long as the defendant did not agree to a

negotiated sentence as part of a plea agreement.” Commonwealth v.

Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000) (citation omitted).

Appellant has not challenged the validity of his guilty pleas.


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     Appellant challenges only a discretionary aspect of his sentence — its

length. “Challenges to the discretionary aspects of sentencing do not entitle

an appellant to an appeal as of right.” Commonwealth v. Glass, 50 A.3d

720, 726 (Pa. Super. 2012) (citation omitted), appeal denied, 63 A.3d 774

(Pa. 2013). Instead, this Court has set forth an analytical framework under

which we determine whether we may exercise our discretion to hear such an

appeal:

     Before we reach the merits of this issue, we must engage in a
     four part analysis to determine: (1) whether the appeal is
     timely; (2) whether Appellant preserved his issue; (3) whether
     Appellant's brief includes a concise statement of the reasons
     relied upon for allowance of appeal with respect to the
     discretionary aspects of sentence; and (4) whether the concise
     statement raises a substantial question that the sentence is
     appropriate under the sentencing code. . . . [I]f the appeal
     satisfies each of these four requirements, we will then proceed to
     decide the substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)

(brackets and citation omitted), appeal denied, 109 A.3d 678 (Pa. 2015).

The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Glass, 50 A.3d at 727.

     In the current case, Appellant filed a timely notice of appeal and

properly preserved this issue in his post-sentence motion. Additionally, the

Anders brief contains a concise statement of the reasons for which he seeks

allowance of an appeal, in compliance with Rule 2119(f) of the Rules of

Appellate Procedure. See Anders Brief at 4-6. The Rule 2119(f) statement

sets forth the claim that the sentencing court sentenced within the

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guidelines but failed to consider the factors set forth in Section 9721(b) of

the Sentencing Code.     Section 9721(b) requires the sentencing court to

“follow the general principle that the sentence imposed should call for

confinement that is consistent with the protection of the public, the gravity

of the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. §

9721(b). Appellant’s argument therefore raises a substantial question. See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc) (“[a]rgument that the sentencing court failed to consider the

factors proffered in 42 Pa.C.S. § 9721 does present a substantial question”;

citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). Hence, we will

consider the substantive merits of his sentencing claim.

      Our standard of review is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015) (citation omitted).        “A sentencing court

need not undertake a lengthy discourse for its reasons for imposing a

sentence or specifically reference the statute in question, but the record as a

whole must reflect the sentencing court's consideration of the facts of the


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crime and character of the offender.”        Commonwealth v. Schutzues, 54

A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013)

(citation omitted).

      The trial court explained:

      In imposing a sentence, the [c]ourt considered the presentence
      investigation report (PSI), Appellant’s educational background,
      rehabilitative potential and his family support. These factors
      were balanced with the substantial impact the crimes had on the
      victims in this case and the need for a lengthy period of
      supervision to help Appellant get the help he needs from the
      community to address his addiction.

Tr. Ct. Op., 7/11/16, at 3; see also N.T., 4/29/16, at 9 (the trial court

“[took] into account [Appellant’s] age,” that “[Appellant] graduated from

high school, and that [Appellant] accept[s] responsibility” for his crimes).

Thus, the trial court considered Appellant’s character – including his youth,

education, and family; his rehabilitative needs; and the impact of his actions

on his victims and on the community and public. See 42 Pa.C.S. § 9721(b);

Schutzues, 54 A.3d at 99. The trial court also stated during the sentencing

hearing that it had read the sentencing guidelines, which take into account

the gravity of the offenses. N.T., 4/29/16, at 9; see 42 Pa.C.S. § 9721(b).

Accordingly, the trial court properly reviewed all of the requisite factors and

did   not   abuse     its   discretion   when        imposing   Appellant’s   sentence.

Consequently,    Appellant’s      sentence      is    not   manifestly   excessive   or

unreasonable.




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      Based on the foregoing, we agree with appellate counsel that the

sentencing issue raised by Appellant lacks merit.      In addition, we have

reviewed the certified record consistent with Flowers, 113 A.3d at 1250,

and have discovered no additional arguably meritorious issues. Therefore,

we grant appellate counsel’s petition to withdraw and affirm the trial court’s

judgment of sentence.

      Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2017




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