J-S28005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellee

                       v.

TRAVIS ASHLEY RAGER,

                       Appellant                  No. 1561 MDA 2014


          Appeal from the Judgment of Sentence August 19, 2014
             In the Court of Common Pleas of Adams County
           Criminal Division at No(s): CP-01-CR-0001060-2013



BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                             FILED MAY 12, 2015

      Travis Rager appeals from the judgment of sentence of five to ten

years imprisonment that the trial court imposed after Appellant tendered an

open guilty plea to one count of burglary.   Appellate counsel has filed a

petition seeking to withdraw from representation and a brief pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009), which govern a withdrawal from

representation on direct appeal.   We grant the petition to withdraw and

affirm.

      Appellant was charged with burglary of residence while a person was

present, theft by unlawful taking, and driving while his driving privileges

were suspended.   On the morning of October 24, 2013, Appellant entered
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the home of Sharon Sue Myers located on 166½ West King Street

Littlestown.   Appellant knew the victim and was aware that she was not

present at her home when he entered it. Ms. Myers arrived at her residence

at approximately 11:15 a.m. and caught Appellant “removing money from

her   master   bedroom    closet.”    Incident   Report,   Littlestown   Police

Department, 10/24/13, at 2. She asked Appellant “what he was doing and

how he could do this to her at which point he did leave the residence in a

black sedan.” Id.

      Ms. Myers called the police, and Littlestown Police Officer Gary

Gearhart responded to the call. While he was taking information from the

victim, Appellant called her. Ms. Myers demanded that Appellant return the

stolen items, and Appellant told her that he would comply with that demand.

When Appellant returned to Ms. Myers’ home, Officer Gearhart arrested him.

Appellant had two necklaces that belonged to the victim in his car. After the

administration and waiver of Miranda rights, Appellant admitted the

following. He and Ms. Myers left her residence together that morning, and

he was aware that she had a doctor’s appointment. After leaving, Appellant

immediately circled back to Ms. Myers’ home, entered it, and went to her

closet to take money since he was aware that she kept cash at that location.

Appellant also admitted to taking the two necklaces found in his vehicle.




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      In exchange for the Commonwealth’s agreement not to seek a

mandatory minimum sentence applicable to repeat offenders, Appellant

tendered an open guilty plea on March 31, 2014, to the burglary charge,

which was graded as a first-degree felony. The transcript of that proceeding

is not contained in the record so we have garnered the pertinent facts from

the incident report.

      The matter proceeded to sentencing on August 19, 2014. The court

had the benefit of a presentence report, and the guidelines recommended a

sentence of sixty to seventy-two months imprisonment. The victim spoke at

the proceeding. She expressed feelings of anger and betrayal at Appellant’s

actions.   She noted that she had welcomed him into her home for social

gatherings and that he betrayed her trust and that of her family.

Additionally, Ms. Myers reported that Appellant took other, unrecovered

jewelry consisting of “my wedding and my engagement ring along with an

emerald that was grandmother’s, two things that were very important to

me.” N.T. Sentencing, 8/19/14, at 4.

      The court ensured that there were no corrections to the presentence

report, which revealed that Appellant had committed ten burglaries in 2004

and 2005. Id. at 5. Defense counsel informed the court about Appellant’s

mental health issues and presented a mental health witness to explain them

in detail. Appellant exercised his right of allocution.


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      The court weighed Appellant’s psychiatric problems when imposing its

sentence, explaining that, absent those problems, it would have imposed the

maximum sentence. It articulated: “The Court notes that the Defendant has

significant mental health issues; however, balances those issues against the

need for public safety and the safety of the Defendant. The Defendant has a

significant prior criminal record and was provided an opportunity to address

those issues[.]” Id. at 18. The court elected to sentence at the lowest end

of the standard range, which was five to ten years imprisonment.

      Appellant filed a motion for reconsideration of his sentence, and, upon

its denial, this appeal. As noted, counsel has filed a petition to withdraw.

Before we address the question 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 are that counsel must

      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).




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      Counsel has complied with the procedural requirements.                In a

withdrawal petition, counsel indicates that he reviewed the record and

concluded that this appeal was frivolous. Attached to the petition is a letter

to Appellant.   Counsel forwarded a copy of the petition to withdraw and

appellate brief to Appellant.   Counsel informed Appellant in the letter that

Appellant had the right to retain new counsel or to proceed to represent

himself and raise any additional points that he deemed worthy of this Court’s

attention.

      We now examine whether the brief comports with the Supreme Court’s

dictates in Santiago, supra, which provides 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, supra at 1032 (quoting Santiago, supra at 361).

      Counsel’s brief is compliant with Santiago.     It sets forth the factual

and procedural history of this case and establishes why Appellant’s issue

lacks legal merit. We now examine the merits of the issue raised and, after

reviewing that contention, we will independently review the record in order

to determine if counsel’s assessment of the frivolity of the present appeal is

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correct. Cartrette, supra. The issue raised is, “Did the sentencing court

manifestly abuse its discretion when it sentenced Appellant to serve a 5-10

year SCI sentence as the result of a burglary conviction?” Appellant’s brief

at 4. Appellant’s position is that the sentence should have been below the

mitigated range in light of these facts: 1) he had a significant history of

mental illness; 2) he was not taking his medication when he committed the

crime; 3) he cooperated with police and returned the necklaces that he

stole; and 4) he and the victim were friends.   Appellant's contention relates

to the discretionary aspects of his sentence.

          A challenge to the discretionary aspects of a sentence must
      be considered a petition for permission to appeal, as the right to
      pursue such a claim is not absolute. Two requirements must be
      met before we will review this challenge on its merits. First, an
      appellant must 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. Second, the appellant must
      show that there is a substantial question that the sentence
      imposed is not appropriate under the Sentencing Code. The
      determination of whether a particular issue raises a substantial
      question is to be evaluated on a case-by-case basis. In order to
      establish a substantial question, the appellant must show actions
      by the trial court inconsistent with the Sentencing Code or
      contrary to the fundamental norms underlying the sentencing
      process.

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014)

(citations omitted).

      In this case, Appellant’s brief contains the concise statement, but we

are unable to discern the existence of a substantial question. Appellant does


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not question that the trial court considered the mitigating factors presented

to it.    Indeed, the court expressed that those factors had induced it to

reduce the sentence significantly in that it planned to impose the maximum

sentence for a first-degree felony, i.e., twenty years. 18 Pa.C.S. § 1103(1)

(maximum sentence for first-degree felony is twenty years).     Instead, the

court imposed a sentence of one-half that amount.        It is apparent that

Appellant is merely asking this Court to re-weigh the sentencing factors. It

is settled that a challenge to the “weight that the trial court gave to the

various factors that it considered in sentencing” and a request that we re-

weigh them in the manner requested by the defendant “does not raise a

substantial question.” Commonwealth         v. Zirkle, 107 A.3d 127, 133

(Pa.Super. 2014).        Hence, we cannot accept this appeal from the

discretionary aspects of Appellant’s sentence.

         As required by the case authority, we have conducted an independent

review of the record and have concluded that there are no non-frivolous

issues that can be raised in this appeal. Hence, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

         Petition of Sean A. Mott, Esquire, to withdraw as counsel granted.

Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




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