J-S40018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BARRY THOMAS,                              :
                                               :
                      Appellant                :    No. 3169 EDA 2016

          Appeal from the Judgment of Sentence September 20, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000809-2016


BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                      FILED JULY 10, 2017

        Appellant, Barry Thomas, appeals from the Judgment of Sentence

imposed after the trial court convicted him of Possession, Possession With

Intent     to   Deliver   (Marijuana)      (“PWID”),    and   Possession   of   Drug

Paraphernalia.1 On appeal, Appellant challenges discretionary aspects of his

sentence. Additionally, Appellant’s counsel seeks permission to withdraw his

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

(1967), as elucidated by our Supreme Court in Commonwealth v.

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

v. Santiago, 978 A.2d 349 (Pa. 2009).              Upon review, we find Appellant’s
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 35 P.S. § 780-113(a)(16); 35 P.S. § 780-113(a)(30); 35 P.S. § 780-
113(a)(32), respectively.
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claim is frivolous.     Accordingly, we affirm his Judgment of Sentence and

grant counsel’s Petition to Withdraw.

       On July 12, 2016, the trial court convicted Appellant of the above

charges.     On September 20, 2016, the court sentenced Appellant to an

aggregate sentence of 18 to 36 months’ incarceration, a standard range

sentence under the sentencing guidelines, and 5 years’ reporting probation.2

       On September 21, 2016, Appellant filed a Post-Sentence Motion, in

which he challenged the discretionary aspects of his sentence.       The trial

court denied the Motion on September 23, 2016.        Appellant filed a timely

Notice of Appeal.

       On October 26, 2016, Appellant’s trial counsel filed an Application to

Withdraw as Counsel.          Accordingly, on November 22, 2016, this Court

remanded this case for the trial court for the appointment of new counsel.

The court appointed appellate counsel on November 30, 3016. Following his

appointment, appellate counsel filed a statement indicating that counsel

intended to file an Anders Brief in lieu of a Rule 1925(b) Statement,

pursuant to Pa.R.A.P. 1925(c)(4), asserting that there were no meritorious

issues to raise on appeal. Appellate counsel filed a Brief and a Petition to

Withdraw as Appellant’s Counsel pursuant to Anders and Santiago, supra.


____________________________________________


2
  Specifically, the court sentenced Appellant to a term of incarceration and
probation for his PWID conviction. The court adjudicated Appellant guilty on
the Possession and Paraphernalia charges, but imposed no further penalty.



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      In his Anders Brief, counsel raised one issue:

      The trial court committed an abuse of discretion in imposing
      sentence because the sentence imposed overstated Appellant’s
      criminal record given that there had been a lengthy period of
      time between Appellant’s last conviction and the instant one.

Anders Brief at 13.

      As Appellant’s counsel has filed an Anders Brief, we must consider his

request to withdraw as counsel prior to reviewing Appellant’s claims on the

merits. Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010).

Counsel has complied with the mandated procedure for withdrawing as

counsel.    See    Commonwealth      v.    Santiago,   978   A.2d   349,   361

(articulating Anders requirements); Daniels, supra at 594 (providing that

counsel must inform client by letter of rights to proceed once counsel moves

to withdraw and append a copy of the letter to the petition). Appellant has

not filed a response.

      As a result, we proceed to conduct an independent review to ascertain

if the appeal is indeed wholly frivolous. Commonwealth v. Flowers, 113

A.3d 1246, 1249 (Pa. Super. 2015).

      In his Anders Brief, Appellant challenges the discretionary aspects of

his sentence. A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:


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        We 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 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).


Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

     In the instant case, Appellant met the first three elements by filing a

timely Notice of Appeal, properly preserving the issue in a Post-Sentence

Motion to modify his sentence, and including a Statement of Reasons Relied

Upon for Allowance of Appeal pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f)

Statement”) in his Anders Brief. As to whether Appellant has presented a

substantial question, we note:

     The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis.          A substantial
     question exists only when the appellant advances a colorable
     argument that the sentencing judge’s actions were either: (1)
     inconsistent with a specific provision of the Sentencing Code; or
     (2) contrary to the fundamental norms which underlie the
     sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and quotation omitted).

     Here, Appellant avers the trial court failed to adequately consider as a

mitigating factor the length of time between his prior offense, which

occurred in 2003, and the instant one before imposing his sentence.


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Anders Brief at 13.      An argument that the sentencing court failed to

consider mitigating factors in favor of a lesser sentence does not present a

substantial question appropriate for our review.         Commonwealth v.

Hanson, 856      A.2d 1254, 1257-58 (Pa.         Super. 2004).      See also

Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (citing

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).

      Moreover, we note that Appellant does not allege that the court

miscalculated his prior record score, that his sentence is outside the

statutory maximum, or that it is contrary to the fundamental norms

underlying the sentencing scheme.        Neither does Appellant point to any

specific provision of the Sentencing Code that the sentencing court

ostensibly violated. Appellant’s bald assertion that his sentence is excessive

does not raise a substantial question.      See Commonwealth v. Trippett,

932 A.2d 188, 201-03 (Pa. Super. 2007) (bald allegations of excessiveness

insufficient to permit discretionary review).

      Accordingly, we conclude that Appellant has failed to raise a

substantial question as to the appropriateness of his sentence.     We agree

with counsel that this claim is wholly frivolous. Further, after conducting our


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independent review as required pursuant to Flowers, supra, we discern no

non-frivolous issues to be raised on appeal.   We therefore grant counsel’s

Petition to Withdraw and affirm the September 20, 2016 Judgment of

Sentence.

     Judgment of Sentence affirmed. Petition to Withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2017




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