J-S95044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        :        IN THE SUPERIOR COURT OF
                                                    :              PENNSYLVANIA
            v.                                      :
                                                    :
ANTHONY NAJI TAYLOR,                                :
                                                    :
                       Appellant                    :               No. 2533 EDA 2016

            Appeal from the Judgment of Sentence July 14, 2016
             in the Court of Common Pleas of Delaware County,
             Criminal Division, No(s): CP-23-CR-0001654-2016

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                        FILED APRIL 27, 2017

      Anthony Naji Taylor (“Taylor”) appeals from the judgment of sentence

imposed following his guilty plea to person not to possess firearms. See 18

Pa.C.S.A.   §    6105(a)(1).          Additionally,       Patrick    J.   Connors,   Esquire

(“Counsel”),     has    filed   a   Petition   to       Withdraw    as    counsel,   and   an

accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744

(1967). We grant Counsel’s Petition to Withdraw, and affirm the judgment

of sentence.

      On May 19, 2016, Taylor entered an open guilty plea to persons not to

possess firearms. On July 14, 2016, the trial court sentenced Taylor to five

to ten years in prison. Taylor filed a timely Notice of Appeal. The trial court

ordered Taylor to file a concise statement of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(b).            In response, Counsel indicated that he

intended to file an Anders brief.
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     Before addressing Taylor’s issues on appeal, we must determine

whether Counsel has complied with the dictates of Anders and its progeny

in petitioning to withdraw from representation. Pursuant to Anders, when

counsel believes that an appeal is frivolous and wishes to withdraw from

representation, he or she must

       (1) petition the court for leave to withdraw[,] stating that after
       making a conscientious examination of the record and
       interviewing the defendant, counsel has determined the appeal
       would be frivolous, (2) file a brief referring to any issues in the
       record of arguable merit, and (3) furnish a copy of the brief to
       defendant and advise him of his right to retain new counsel or
       to raise any additional points that he deems worthy of the
       court’s attention. The determination of whether the appeal is
       frivolous remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citations omitted).   Additionally, the Pennsylvania Supreme Court has

explained that a proper Anders brief 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).




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      Here, we conclude that Counsel has substantially complied with each

of the requirements of Anders and Santiago.          See Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must

substantially comply with the requirements of Anders).       Counsel indicates

that he made a conscientious examination of the record and determined that

an appeal would be wholly frivolous.        Further, Counsel’s Anders brief

comports with the requirements set forth in Santiago. Finally, the record

contains a copy of the letter that Counsel sent to Taylor, advising him of his

right to proceed pro se or retain alternate counsel, and file additional claims,

and Counsel’s intention to seek permission to withdraw. Thus, Counsel has

complied   with    the   procedural   requirement     for   withdrawing    from

representation.   We next examine the record and make an independent

determination of whether Taylor’s appeal is, in fact, wholly frivolous.

      Counsel has filed a brief pursuant to Anders that raises the following

question for our review: “Whether a 5 to 10 year prison term is harsh and

excessive under the circumstances of this case?” Anders Brief at 1. Taylor

filed a pro se Response, arguing that his counsel provided ineffective

assistance at sentencing. Pro Se Response at 1 (unnumbered).

      Initially, Taylor challenges the discretionary aspects of his sentence. 1

“Challenges to the discretionary aspects of sentencing do not entitle an


1
  Because Taylor entered an open guilty plea, his plea did not preclude a
challenge to the discretionary aspects of sentencing. See Commonwealth
v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).


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appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).     Prior to reaching the merits of a discretionary

sentencing issue,

      [this Court conducts] a four-part analysis to determine: (1)
      whether appellant has filled 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).

                                      ***

      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.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

     Here, Taylor filed a timely Notice of Appeal. However, he did not raise

his sentencing claim at the sentencing hearing or in a post-sentence motion

to modify and reduce sentence. See Commonwealth v. Reaves, 923 A.2d

1119, 1125    (Pa.   2007) (stating    that “failure   to   file   a motion for

reconsideration after failing to object at sentencing … operates to waive

issues relating to the discretionary aspects of sentencing.”); see also

Commonwealth v. Williams, 787 A.2d 1085, 1088 (Pa. Super. 2010)

(stating that claims challenging discretionary aspects of sentencing are



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waived when the sentencing judge is not afforded the opportunity to

reconsider or modify the sentence though a post-sentence motion or an

objection at sentencing).     Thus, Taylor’s claim is not preserved for our

review.

      Regardless of this defect, Anders requires that we examine the merits

of Taylor’s claim to determine whether his appeal is, in fact, “wholly

frivolous” in order to rule upon Counsel’s request to withdraw.            See

Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa. Super. 1990) (stating

that discretionary aspects of sentencing raised in an Anders brief must be

addressed on appeal, despite the fact that the claim was not properly

presented so as to determine whether counsel is entitled to withdraw); see

also Commonwealth v. Lilley, 978 A. 2d 995, 998 (Pa. Super. 2009)

(stating that where counsel files an Anders brief, this Court will review

discretionary aspects of sentencing claims that were otherwise not properly

preserved). Thus, we will review Taylor’s sentencing claims.

      Our standard of review for challenges to discretionary aspects of

sentencing is well settled:

       [S]entencing is vested in the discretion of the trial court, and
       will not be disturbed absent a manifest abuse of that discretion.
       An abuse of discretion involves a sentence which was manifestly
       unreasonable, or which resulted from partiality, prejudice, bias
       or ill will. It is more than just an error in judgment.

Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)

(citation omitted).



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      Taylor asserts that the sentence was excessive.      Anders Brief at 5.

Taylor claims that the trial court abused its discretion by failing to consider

mitigating factors, including his desire to improve his life and his drug

problems. Id.

      Here, in imposing sentence, the trial court reviewed a pre-sentencing

investigation report and a substance abuse evaluation. See N.T., 7/14/16,

at 3, 6, 9.     Where the sentencing judge considered a pre-sentencing

investigation report, it is presumed that they were aware of the all relevant

sentencing factors and weighed all mitigating statutory factors.          See

Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006); see

also Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(noting that the “sentencing judge can satisfy the requirement that reasons

for imposing sentence be placed on the record by indicating that he or she

has been informed by the pre-sentencing report; thus properly considering

and weighing all relevant factors.”) (citation omitted). The trial court also

considered Taylor’s statements, Taylor’s prior criminal history, the fact that

Taylor was employed, and Taylor’s drug issues. See N.T., 7/14/16, at 6-8,

10-12, 13. Further, the trial court imposed a standard range sentence. Id.

at 3-4, 18; see also Moury, 992 A.2d at 171 (stating that “where a

sentence is within the standard range of the guidelines, Pennsylvania law

views the sentence as appropriate under the sentencing code.”).         Based




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upon the foregoing, we discern no abuse of the sentencing court’s discretion

in imposing the sentence. See Ventura, supra; Flower, supra.2

     Further, our independent review discloses no other non-frivolous

issues that Taylor could raise on appeal.   Accordingly, we grant Counsel’s

Petition to Withdraw and affirm Taylor’s judgment of sentence.

     Petition to Withdraw granted; judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2017




2
  In his pro se response, Taylor raises an ineffective assistance of counsel
claim. It is well-settled that ineffectiveness claims are not generally raised
on direct appeal, and are to be raised on collateral review.              See
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).


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