J-S40008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OFRARLIN MARTINEZ-ROSARIO,                 :
                                               :
                       Appellant               :   No. 2731 EDA 2017

               Appeal from the Judgment of Sentence July 7, 2017
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0011207-2015

BEFORE: LAZARUS, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                           FILED SEPTEMBER 21, 2018

        Appellant, Ofrarlin Martinez-Rosario, appeals from the Judgment of

Sentence entered by the Philadelphia County Court of Common Pleas after he

entered an open guilty plea to Aggravated Assault and Possession of an

Instrument of Crime (“PIC”).1          On appeal, he challenges the discretionary

aspects of his sentence. Appellant’s counsel filed a Petition to Withdraw as

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

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful

review, we grant counsel’s Petition to Withdraw and affirm Appellant’s

Judgment of Sentence.

        The trial court set forth the underlying facts in its Pa.R.A.P. 1925(a)

Opinion and we need not repeat them in detail. See Trial Court Opinion, filed

____________________________________________


1   18 Pa.C.S. § 2702(a)(1) and 18 Pa.C.S. § 907(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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11/30/17, at 2. Briefly, in June 2015 Appellant stabbed the victim several

times with a machete during an argument.        On April 18, 2017, Appellant

entered an open guilty plea to one count each of Aggravated Assault and PIC.

In exchange, the Commonwealth nolle prossed several charges, including

Attempted Murder, and agreed to request at most a three-year minimum term

of incarceration at sentencing.     The trial court ordered a pre-sentence

investigation report and a mental health evaluation, and deferred sentencing.

      On July 7, 2017, the court sentenced Appellant to an aggregate term of

2½ to 5 years’ incarceration, followed by 3 years’ probation. Appellant filed a

timely Post-Sentence Motion for Reconsideration summarily requesting a

sentence of 11½ to 23 months’ incarceration, which the trial court denied on

July 31, 2017.

      On August 29, 2017, Appellant filed a timely Notice of Appeal. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      On May 4, 2018, counsel filed a Brief and a Petition to Withdraw

pursuant to Anders and Santiago.        Appellant did not file a response to

counsel’s Anders Brief.

      In his Anders Brief, counsel raised one issue:

      Did not the lower court’s imposition of a 2½ to 5 year sentence of
      incarceration violate 42 Pa.C.S. § 9721, and was it not an abuse
      of discretion where the court failed to give individualized
      consideration to [A]ppellant’s personal history, rehabilitative
      needs or background, and failed to explain how, as a matter of
      law, this sentence was the least stringent one adequate to protect
      the community and to serve the rehabilitative needs of the
      [A]ppellant?

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Anders Brief at 3.

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

counsel has complied with the procedures provided in 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

stating that he or she has made a conscientious examination of the record and

determined that there are no meritorious issues to be raised on appeal.

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 or retain different counsel. Id. See also

Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005); Santiago,

978 A.2d at 361 (detailing substantive requirements of an Anders Brief).

      Once counsel has satisfied the above requirements, it is then this Court’s

duty to conduct an independent review of the record to discern if there are

any non-frivolous issues overlooked by counsel and render an independent

judgment as to whether the appeal is, in fact, wholly frivolous. See Goodwin,

supra at 291; Commonwealth v. Yorgey, ___ A.3d ___, 2018 PA Super

136, *5 (Pa. Super. filed May 24, 2018) (en banc) (noting that Anders

requires the reviewing court to “review ‘the case’ as presented in the entire

record with consideration first of issues raised by counsel.”).




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      Counsel in the instant appeal has complied with the above requirements.

We thus proceed to conduct an independent review to ascertain if the appeal

is indeed wholly frivolous.

      In the Anders Brief, Appellant’s counsel raised a challenge to the

discretionary aspects of Appellant’s sentence. Challenges to the discretionary

aspects of sentence are not appealable as of right.        Commonwealth v.

Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).             Rather, an appellant

challenging the sentencing court’s exercise of its discretion must invoke this

Court’s jurisdiction by satisfying a four-part test: “(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.[] § 9781(b).” Id. (citation omitted).

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”    Pa.R.A.P. 302.     The Pennsylvania Rules of

Criminal Procedure specifically caution defendants that, when filing Post-

Sentence Motions, “[a]ll requests for relief from the trial court shall be stated

with specificity and particularity[.]”    Pa.R.Crim.P. 720(B)(1)(a).   See also

Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003) (holding

that defendant waived discretionary aspects of sentencing claim regarding


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sentencing court’s failure to state the reasons for his sentence on the record

where defendant filed a post-sentence motion, but only argued that his

sentence was unduly severe and the trial court abused its discretion under the

sentencing code).

      In the instant case, Appellant did not properly preserve this issue at

sentencing or in his Post-Sentence Motion to Reconsider.        At sentencing,

Appellant did not challenge the discretionary aspects of his sentence on the

same grounds he now presents on appeal. See N.T., 7/7/17, at 3-16.

      In his Post-Sentence Motion, Appellant did not assert that the trial court

violated any statute, failed to give individualized consideration to Appellant’s

rehabilitative needs, or any other theory included in his issue presented on

appeal. Instead, Appellant baldly requested a reduced sentence as follows:

      1. Petitioner entered a guilty plea on April 18, 2017 to one count
      of Aggravated Assault F1 and one count of [P]ossession of an
      Instrument of Crime.

      2. On July 7, 2017 this court sentenced Petitioner to 2½ to 5 years
      on the Assault to be followed by 3 years reporting probation.

      3. Petitioner asks this Court to reconsider the custody portion of
      the sentence and impose a sentence of 11 ½ to 23 months. The
      Petitioner has 2 years of time credit.

      WHEREFORE, petitioner, through her counsel, respectfully
      requests this Honorable Court impose the requested sentence.

Appellant’s Post-Sentence Motion, filed 7/14/17, at 1-2 (unpaginated).

      Although Appellant requested a lesser sentence in his Post-Sentence

Motion, Appellant’s Motion failed to preserve the specific issue presented in


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the   Anders      Brief.     See    Pa.R.A.P.    302;   Pa.R.Crim.P.   720(B)(1)(a);

Commonwealth v. McAfee, 849 A.2d 270 (Pa. Super. 2004) (defendant

cannot cure failure to raise discretionary aspects of sentencing issue at

sentencing or in a post-sentence motion “by submitting the challenge in a Rule

1925(b) statement.”). This failure deprived the trial court of the opportunity

to reconsider or modify Appellant’s sentence based on the reason Appellant

raises in this appeal. Thus, we must find it waived.2 Mann, 820 A.2d at 793-

94.

       Even if Appellant had preserved his claim, Appellant’s claim does not

present a “substantial question” for review. An appellant raises a “substantial

question” when he “sets forth a plausible argument that the sentence violates

a provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process.” Commonwealth v. Crump, 995 A.2d 1280, 1282

(Pa. Super. 2010) (citation omitted).

       Here, Appellant avers that the trial court failed to adequately consider

various mitigating factors and Appellant’s rehabilitative needs, and failed to

impose an individualized sentence as a result. Anders Brief at 3. Appellant



____________________________________________


2 We also note that Appellant did not include a Statement of Reasons Relied
Upon for Allowance of Appeal pursuant to Pa.R.A.P. 2119(f) in the Anders
Brief. However, this Court may ignore such a defect in cases where counsel
seeks permission to withdraw. See Commonwealth v. Zeigler, 112 A.3d
656, 661 (Pa. Super. 2015) (“Where counsel files an Anders brief, this Court
has reviewed the matter even absent a separate Pa.R.A.P. 2119(f)
statement.”).

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recognizes that the trial court imposed a legal sentence below the applicable

statutory maximums, and that his sentence fell within the mitigated range of

the sentencing guidelines. Anders Brief at 15-16.

      It is clear from our precedent that Appellant has failed to raise a

substantial question with respect to his sentencing arguments.       See, e.g.,

Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa. Super. 2013) (claim

that the trial court failed to consider defendant’s rehabilitative needs in

imposing standard-range sentences did not raise a substantial question);

Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa. Super. 1990) (claim that

sentence failed to take into consideration the defendant’s rehabilitative needs

and was manifestly excessive did not raise a substantial question where

sentence was within statutory guidelines and within sentencing guidelines).

See also Commonwealth v. Miklos, 159 A.3d 962, 970 (Pa. Super. 2017),

appeal denied, 170 A.3d 1042 (Pa. 2017) (holding that an argument that the

sentencing court failed to adequately consider mitigating factors in favor of a

lesser sentence does not present a substantial question appropriate for our

review); Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super.

1989) (en banc) (concluding that an allegation that the sentencing court did

not adequately consider various factors is, in effect, a request that this court

substitute its judgment for that of the lower court in fashioning a defendant’s

sentence).




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      Accordingly, in addition to our waiver conclusion, we agree with counsel

that this claim is wholly frivolous. After conducting our independent review

as required pursuant to Anders, we discern no non-frivolous issues to be

raised on appeal. We therefore grant counsel’s Petition to Withdraw and affirm

the July 7, 2017 Judgment of Sentence.

      Judgment of Sentence affirmed. Petition to Withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/18




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