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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSUE ALAMEDA, SR.

                            Appellant                No. 1298 WDA 2014


          Appeal from the Judgment of Sentence November 18, 2013
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0001175-2013


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 04, 2015

        Josue Alameda, Sr., appeals from the judgment of sentence imposed

by the Court of Common Pleas of Erie County following his convictions for

several offenses arising out of a high speed chase after he failed to obey a

stop sign.     Alameda’s counsel also seeks to withdraw pursuant to the

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

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

434 A.2d 1185 (Pa. 1981). Upon review, we grant counsel’s petition to

withdraw and affirm Alameda’s judgment of sentence.

        Between midnight and 12:15 a.m. on February 27, 2013, police

officers observed Alameda, who was driving a dark colored Pontiac Grand

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Am, run a stop sign at the corner of 24th and Ash Streets in Erie. He led the

officers on a high-speed chase at 80 miles per hour through an area posted

at 25 miles per hour. At one point, when the vehicle was estimated to be

traveling at 100 miles per hour, it hit a bump, became airborne and jumped

two lanes of traffic. Eventually, the vehicle hit a snowbank, then hit some

trees and came to stop.

        On September 24, 2013, at the conclusion of a two-day trial, a jury

convicted Alameda of fleeing or attempting to elude a police officer 1 and

resisting arrest.2     The court then convicted him of reckless driving 3 and

failure to obey a stop sign.4

        On November 18, 2013, the trial court sentenced Alameda to 9 to 23

months’ incarceration followed by 24 months of probation along with fines

and costs. He did not file a post-sentence motion or direct appeal.

        Alameda filed a petition pursuant to the Post-Conviction Relief Act,5

which the court granted on July 29, 2014, reinstating Alameda’s right to file

a post-sentence motion and direct appeal. He filed a post-sentence motion

____________________________________________


1
    75 Pa.C.S. § 3733(a).
2
    18 Pa.C.S. § 5104.
3
    75 Pa.C.S. § 3736(a).
4
    75 Pa.C.S. § 3323(b).
5
    42 Pa.C.S. §§ 9541-9546.



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on August 1, 2014, which the court denied on August 4, 2014. This timely

appeal followed, and on August 25, 2014, Alameda’s counsel filed a

statement of intent to file an Anders/McClendon brief in lieu of a Pa.R.A.P.

1925(b) statement of errors complained of on appeal.

     On January 28, 2015, Alameda’s counsel filed an Anders brief. “When

faced with a purported Anders brief, this Court may not review the merits of

the underlying issues without first passing on the request to withdraw.”

Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super. 2005).

Furthermore, counsel must comply with certain mandates when seeking to

withdraw pursuant to Anders, Santiago, and McClendon. These mandates

are not overly burdensome and have been summarized as follows:

        Direct appeal counsel seeking to withdraw under Anders
        must file a petition averring that, after a conscientious
        examination of the record, counsel finds the appeal to be
        wholly frivolous. Counsel must also file an Anders brief
        setting forth issues that might arguably support the appeal
        along with any other issues necessary for the effective
        appellate presentation thereof.

        Anders counsel must also provide a copy of the Anders
        petition and brief to the appellant, advising the appellant
        of the right to retain new counsel, proceed pro se or raise
        any additional points worthy of this Court’s attention.

        If counsel does not fulfill the aforesaid technical
        requirements of Anders, this Court will deny the petition
        to withdraw and remand the case with appropriate
        instructions (e.g., directing counsel either to comply with
        Anders or file an advocate’s brief on Appellant’s behalf).

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations

omitted).


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     Moreover, the Anders brief that accompanies counsel’s petition to

withdraw 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.

Santiago, 978 A.2d at 361.

     Here, counsel has filed a petition averring that, after a thorough

review of the record, she finds the appeal to be wholly frivolous, and states

her reasons for so concluding. Santiago, supra. Counsel provided a copy

of the petition and Anders brief to Alameda, advised him of the right to

retain new counsel, or proceed pro se, and raise any additional points he

deems worthy of this Court’s attention.        Accordingly, we find counsel has

met the requirements of Anders, McClendon and Santiago.

     Once counsel has satisfied the above requirements, this Court

conducts its own review of the proceedings and renders an independent

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

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

     In her Anders brief, the sole issue of arguable merit raised by counsel

is whether the sentence is manifestly excessive, clearly unreasonable, and

not individualized as required by law. Anders Brief, at 1.



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      Alameda’s allegation that his sentence was excessive is a challenge to

the discretionary aspect of his sentence, which is not appealable as of right.

Rather, an appellant challenging the sentencing court’s discretion must

invoke   this   Court’s   jurisdiction   by   satisfying   a   four-part   test.

Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).

      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 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

      Here, Alameda has preserved his claim by filing a post-sentence

motion and including it in his statement of intent to file an Anders brief. His

notice of appeal was timely filed. Finally, Alameda’s counsel has included in

her Anders brief a statement pursuant to Pa.R.A.P. 2119(f), claiming that

the trial court imposed an excessive sentence.

      Judicial review of the discretionary aspects of a sentence is granted

only upon a showing that there is a substantial question that the sentence

was inappropriate and contrary to the fundamental norms underlying the

Sentencing Code.     Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987). A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)


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inconsistent with a specific provision in the Sentencing Code; or (2) contrary

to   the   fundamental   norms   which   underlie   the   sentencing   process.”

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en

banc).

      Alameda argues that he raises a substantial question because although

he was sentenced within the guidelines, “the case involves circumstances

where the application of the guidelines would be clearly unreasonable.” 42

Pa.C.S. § 9781(c)(2). The reasons set forth by Alameda in support of this

claim are as follows:

      [H]e should have received a lighter sentence because he took
      responsibility for his actions and expressed remorse for his
      actions and that he apologized at the time of sentencing.
      Further, his actions were the result of his drinking alcohol.

Anders Brief, at 4-5.

      We are unpersuaded that these reasons support a conclusion that

Alameda’s sentence was either excessive or unreasonable.

      When imposing sentence, the court noted:

      I have considered a number of things here, the pre-sentence
      investigative report in its entirety, and I’ll make it a part of the
      record. I’ve also considered the Pennsylvania Sentencing Code
      and all its factors, the guidelines, the various statements made
      here to me today, and also [Alameda’s] sister’s letter which I
      have read and I’m returning to counsel.

N.T. Sentencing Hearing, 11/18/13, at 7.

      Where a pre-sentence report exists, we presume that the sentencing

judge was aware of the relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

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factors.   Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa. 2007).

Accordingly, we reject Alameda’s argument that his sentence was not

individualized.

      Alameda has failed to raise a substantial question, and therefore is not

entitled to review of the discretionary aspect of his sentence.

      Judgment of sentence affirmed.        Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2015




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