J-S59038-14

NON-PRECEDENTIAL DECISION                  SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :    IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                        Appellee             :
                                             :
                   v.                        :
                                             :
TYLER EDWARD WILLIAMS,                       :
                                             :
                        Appellant            :    No. 1109 EDA 2014

             Appeal from the Judgment of Sentence March 6, 2014
                in the Court of Common Pleas of Wayne County,
              Criminal Division at No(s): CP-64-CR-0000091-2013

BEFORE: SHOGAN, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED SEPTEMBER 23, 2014

        Tyler Edward Williams (Appellant) appeals from the judgment of

sentence that followed his open plea of guilty to one count of bad checks.1

In addition,

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                   We affirm the

judgment of sentence and grant the petition to withdraw.

        The background underlying this matter can be summarized as follows.

        On April 18, 2013, [Appellant] entered a[n open] plea of guilty
        to one count of Bad Checks (M2). [Appellant] was ordered to
        appear for sentencing. On July 5, 2013, [Appellant] failed to
        appear for sentencing, and a bench warrant was issued. On
        March 6, 2014, [Appellant] was sentenced to eight (8) to twenty




1
    18 Pa.C.S. § 4105(a)(1).


* Retired Senior Judge assigned to the Superior Court.
J-S59038-14

Trial Court Opinion, 5/21/2014, at 1.2

     On the same day he was sentenced, Appellant timely filed a counseled

motion to modify his sentence.    Soon thereafter, Appellant filed a pro se

motion to modify his sentence. On March 18, 2013, the trial court entered



footnote, the



                      pro se motion to modify his sentence.       Trial Court

Order, 3/18/2013, at n.1 (citing Commonwealth v. Ellis, 626 A.2d 1137

(Pa. 1993)).3

     Appellant timely filed a notice of appeal.     The trial court directed

Appellant to comply with Pa.R.A.P. 1925(b), and Appellant filed a Pa.R.A.P.

                                                                           n to

withdraw his representation of Appellant and an Anders brief.

     The following principles guide our review of this matter.

     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




2
  The court ordered Appellant to serve this sentence concurrently to a
sentence he already was serving in Luzerne County.
3
  In Ellis, our Supreme Court held that criminal defendants have no
constitutional right to hybrid representation.


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J-S59038-14

             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

      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

      Our Supreme Court has clarified portions of the Anders procedure:

      Accordingly, we hold that in the Anders brief that accompanies
      court-
      (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 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.

      We find that counsel has complied substantially with the requirements

of Anders and Santiago.        We, therefore, will undertake a review of the

appeal to determine if it is wholly frivolous.




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J-S59038-14

     In his Anders brief, counsel presents one issue that might arguably



sentencing [Appellant] in the aggravated range of the Pennsylvania

sentewncing [sic                                                       Anders

Brief at 4 (unnecessary capitalization and suggested answer omitted). This



     To reach the merits of a discretionary sentencing issue, we
     conduct a four-part analysis to determine:        (1) whether
     appellant has filed a timely notice of appeal; (2) whether the
     issue was properly preserved at sentencing or in a motion to
     reconsider and modify sentence; (3) whether appellant's brief
     has a fatal defect; and (4) whether there is a substantial
     question that the sentence appealed from is not appropriate
     under the Sentencing Code.

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citations

omitted).

     As we noted above, Appellant timely filed his notice of appeal.

Appellant did not object to his sentence during the sentencing hearing.

However, his counsel timely filed a motion to modify his sentence.

     In that motion, Appellant asserted that the minimum sentence he

received is in the aggravated range of the sentencing guidelines. He further

                                              cing Guidelines, the minimum

                                              -

Sentence, 3/6/2014, at ¶4.    Appellant then asked the court to reduce his

                                                                     Id. at ¶5.




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J-S59038-14

In support of his request, Appellant highlighted several mitigating factors

that he presented to the trial court at his sentencing hearing.

       Thus, the only challenge to the discretionary aspects of his sentence

that Appellant arguably preserved for appellate review is a claim that his




held on numerous occasions that a claim of inadequate consideration of

mi

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation

and quotation marks omitted).      We see no reason to deviate from this

general rule in this case.

       After a review of the record, we conclude that the only issue Appellant

preserved for appeal regarding the discretionary aspects of his sentence fails

to raise a substantial question.   Consequently, we agree with counsel that

this appeal is wholly frivolous. For these reasons, we affirm the judgment of



       Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2014




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