J-S13017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TYMEEN WILLIAMS

                            Appellant                  No. 638 WDA 2015


          Appeal from the Judgment of Sentence entered April 7, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at Nos: CP-25-CR-0002134-2014
                                        CP-25-CR-0002508-2014


BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 13, 2016

        Appellant, Tymeen Williams, appeals from the judgment of sentence

the Court of Common Pleas of Erie County entered April 7, 2015.         In the

brief filed by his counsel in accordance with Anders v. California, 386 U.S.

938 (1969), as refined by Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), Appellant contends his sentence is manifestly excessive. Specifically,

Appellant argues the sentencing court considered impermissible factors in

fashioning his sentence. His counsel concurrently filed a petition for leave to

withdraw. For the reasons explained below, we grant counsel’s petition for

leave to withdraw and affirm Appellant’s judgment of sentence.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      The trial court summarized the relevant background of the case as

follows:

      On January 12, 2015, Appellant pled guilty to disarming a law
      enforcement officer without lawful authority, firearms not to be
      carried without license, and resisting arrest at [d]ocket [n]umber
      2134 of 2014 and simple assault at [d]ocket [n]umber 2508 of
      2014.

      On April 7, 2015, [the trial court sentenced Appellant to an
      aggregate term of incarceration of 58 months to 112 months.]

      Appellant filed a [m]otion for [r]econsideraton of [s]entence on
      April 9, 2015, which was denied by [o]rder dated April 9, 2015.

      On April 17, 2015, Appellant filed a notice of appeal. On April
      22, 2015, Appellant filed a [s]tatement of [m]atters
      [c]omplained of on [a]ppeal[, challenging, inter alia, the
      sentencing court’s reliance on impermissible factors in fashioning
      his sentence].

Trial Court Opinion, 6/11/15, at 1-2 (footnote omitted).

      We must address the request to withdraw before reviewing the merits

of Appellant’s issue.   Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.

Super. 2005). As this Court recognized in Commonwealth v. Cartrette,

83 A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in Santiago

did not change the procedural requirements for requesting withdrawal from

representation.

      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.


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Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.

Super. 2009)).

       We conclude counsel has satisfied the procedural requirements set

forth in Anders.1         In the petition to withdraw, counsel explains her

conclusion, based on a review of the case, that there are no meritorious

issues to be raised on Appellant’s behalf and that proceeding with the case

would be frivolous.      In addition, counsel furnished a copy of the appellate

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

act on his own behalf to raise additional arguments or points for this Court’s

consideration.

       Having concluded counsel satisfied the procedural requirements of

Anders, we must ascertain whether the brief satisfied the substantive

mandates prescribed in Santiago.               In Santiago, our Supreme Court

announced:

       [I]n 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
____________________________________________


1
  Although in her petition to withdraw, counsel stated that she was filing an
Anders/McClendon brief, the brief filed with this Court appropriately refers
to Santiago, requiring that counsel state the reasons for concluding the
appeal is frivolous, rather than comply with the standard set forth in
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), abrogated by
Santiago.



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      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.

Santiago, 978 A.2d at 361.

      In the Anders brief, counsel has included a statement of the case that

includes a procedural history of the case.     Counsel has satisfied the first

requirement.

      The second required element of an Anders brief is reference to

anything in the record that counsel believes arguably supports the appeal.

Here, counsel suggests that the trial court relied on impermissible factors,

namely, “that . . . Appellant was in possession of a stolen firearm at the time

of his arrest.” Appellant’s Brief at 7. Appellant notes this circumstance was

not mentioned in the guilty plea.      Counsel, therefore, has satisfied the

second Anders requirement.

      Counsel also has satisfied the third element of Anders, stating her

conclusion that the appeal is frivolous. Id. at 8-9. Finally, counsel provided

her reasons for concluding the appeal is frivolous. Id. at 9. Thus, counsel

has satisfied the fourth and final element of the Anders test.

      Having determined the procedural and substantive requirements of

Anders are satisfied, we must conduct our own independent review of the

record to determine if the issue identified in this appeal is, as counsel

asserts, wholly frivolous, or if there are any other meritorious issues present

in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)

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(“[T]he court—not counsel—then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds, it

may grant counsel’s request to withdraw.”).

      As noted above, Appellant argues the trial court abused its discretion

by imposing a manifestly excessive sentence. Specifically, Appellant argues

the trial court relied on an impermissible factor, namely that he was in

possession of a stolen weapon at the time of his arrest. Appellant’s Brief at

8. As such, Appellant presents a challenge to the discretionary aspects of

his sentence. Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super.

2009).

      In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this

Court reiterated:

      Appellant is not entitled as of right to a review of such a
      challenge. Our jurisdiction over a claim regarding the
      discretionary aspects of sentence must be established as follows:

         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. § 9781(b).

Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super.   2010)   (internal   quotation   marks,   citations   and   modifications

omitted)).


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       A review of the record reveals that Appellant has satisfied the first

three elements of the test.         We now turn to the fourth element, whether

there is a substantial question under 42 Pa.C.S.A. § 9781(b) that the

sentence appealed from is not appropriate.2         An allegation that the trial

court considered an impermissible sentencing factor raises a substantial

question.    Commonwealth v. Matroni, 923 A.2d 444 (Pa. Super. 2007).

Thus, we will consider the merits of Appellant’s sentencing challenge.

       Appellant failed to show that the sentencing court abused its discretion

in fashioning Appellant’s sentence.3 To this end, the trial court noted that

Appellant’s possession of a loaded, stolen firearm at the time of arrest was

mentioned in four separate instances during sentencing proceedings, yet

Appellant never challenged this statement. Trial Court Opinion, 6/11/15, at

2-4.   The trial court also emphasized the circumstance complained of by

Appellant was included in the offense description of the Pre-Sentence

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2
  “A substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process.” Commonwealth v. Johnson, G., 873 A.2d 704, 708 (Pa. Super.
2005).
3
  “In reviewing a challenge to the discretionary aspects of sentencing, we
evaluate the court’s decision under an abuse of discretion standard.
Additionally, this Court’s review of the discretionary aspects of a sentence is
confined by the statutory mandates of 42 Pa.C.S.[A]. § 9781(c) and (d).”
Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013)
(quotation marks and citations omitted).




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Investigation report (PSI). Appellant did not challenge the accuracy of the

PSI, despite the fact he had the opportunity to do so.

       The trial court also noted that even if the circumstance was indeed not

accurate, the court’s reliance on such circumstance does not warrant a

finding of abuse of discretion. We agree. The sentencing court noted:

       The [c]ourt considered Appellant’s age, work, education, and
       personal history, and that the crimes were Appellant’s first non-
       summary charges as an adult. The [c]ourt balanced these
       factors with the serious nature of the crimes and that Appellant
       has an extensive juvenile record, which includes three felony
       adjudications. The [c]ourt also noted Appellant seemed to have
       a recurring issue with anger management and substance abuse
       issues. Appellant’s sentences were in the standard range of the
       Sentencing Guidelines. Therefore, Appellant’s sentences were
       justified absent consideration of possession of a stolen firearm
       when arrested.

Trial Court Opinion, 2/5/15, at 4-5 (internal citations omitted).

       In light of the foregoing, we conclude that the trial court did not abuse

its discretion in fashioning Appellant’s sentence, even if it relied on an

impermissible factor, because the sentencing court had independently valid

reasons supporting Appellant’s sentence. See Commonwealth v. Smith,

673 A.2d 893 (Pa. 1996) (where departure sentence was justified by

independently valid reasons, even though impermissible sentencing factor

also   was    employed     in   support,    sentence     must   be   affirmed);

Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa. Super. 2008) (“Even if

a sentencing court relies on a factor that should have not been considered,




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there is no abuse of discretion when the sentencing court has significant

other support for its departure from the sentencing guidelines.”).4

       In summary, we agree with counsel that any challenge to the trial

court’s sentence is frivolous. Our independent review of the record does not

reveal any non-frivolous arguments available to Appellant.      We therefore

affirm the judgment of sentence and grant counsel’s petition to withdraw.

       Judgment of sentence affirmed. Counsel’s petition for leave to

withdraw is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016




____________________________________________


4
  As noted above, the sentencing court sentenced Appellant in the standard
range of the sentencing guidelines. As such, the instant matter is even less
assailable than Smith and Sheller.



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