J-S66022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHACQAN MCCLENDON

                            Appellant                 No. 386 WDA 2015


        Appeal from the Judgment of Sentence entered January 21, 2015
                  In the Court of Common Pleas of Erie County
                Criminal Division at No: CP-25-CR-0001969-2013


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED MARCH 8, 2016

        Appellant, Shacquan McClendon, appeals from the judgment of

sentence entered by the Court of Common Pleas of Erie County, following a

jury trial that convicted Appellant of robbery, recklessly endangering another

person (2 counts), and theft by unlawful taking.1 Appellant’s counsel filed a

petition to withdraw, alleging that no non-frivolous grounds exist for appeal,

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

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

        The trial court summarized the relevant background as follows.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. § 3701(a)(1)(ii), 18 Pa.C.S.A. § 2705 (2 counts), and 18
Pa.C.S.A. § 3921, respectively.
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           On May 31, 2013, at approximately 9:00 p.m., victims
     Chelsea Seyler and Ryan Droney [were] walking home from
     Sanders Market, located on East 6th street in the city of Erie.
     While they [were] walking westward on East 6th street, Appellant
     walked past [sic] them from behind, turned around, and pointed
     a black handgun at them. Appellant stood approximately one
     foot away. Seyler immediately recognized Appellant as they
     both graduated from East High School in 2012 and she knew him
     from music class. Seyler and Appellant were also Facebook
     friends.     Although Appellant’s head was covered by his
     sweatshirt’s hood, both Seyler and Droney could see Appellant’s
     entire face.

            With his gun pointed at the victims, Appellant told them to
     empty their pockets. Appellant took a cellular phone from
     Seyler, searched Droney’s pockets, and removed $20.00 from
     his sweatshirt pocket. After a moment, Appellant gave the cell
     phone back to Seyler, apologized to them both, and stated that,
     “it’s been hard and tough times.” Appellant then fled the scene
     and the victims walked back home.

           Approximately 30 minutes after the robbery, the victims
     called [the] police. Police arrived at their home and Seyler gave
     them Appellant’s name as the assailant. Seyler also identified
     Appellant during a police photo lineup on June 4, 2013.

           On January 21, 2014, appellant’s jury trial commenced.
     Both victims unequivocally identified Appellant as their assailant.
     Although Appellant denied robbing the victims, he admitted that
     he knew Seyler from school. Following testimony, the jury found
     Appellant guilty of the foregoing offenses.

           After trial, the Commonwealth filed its notice of intent
     under 42 Pa.C.S.A. § 9712 (a), requesting imposition of a 5-year
     mandatory minimum for robbery. On March 14, 2014, appellant
     was sentenced to a mandatory minimum term of 5 to 10 years’
     imprisonment at Count 1, robbery.       The remaining counts
     merged for sentencing purposes.

           On March 24, 2014, Appellant filed a Motion To Reconsider
     Sentence, which this [c]ourt denied on March 26, 2014.
     Appellant filed a timely Notice of Appeal on April 21, 2014. In
     response to this [c]ourt’s 1925(b) Order, Appellant filed a

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      Statement of Matters Complained of on Appeal on June 12,
      2014.

Trial Court Opinion, 7/7/14, at 1-2 (internal citations and footnotes omitted).

      On January 21, 2015, a re-sentencing hearing was held following the

decision from this Court vacating Appellant’s prior sentence and remanding

for a new sentence in light of the Supreme Court’s decision in Alleyne v.

United States, 133 S.Ct. 2151 (2013).       Commonwealth v. McClendon,

113 A.3d 348 (Pa. Super. 2014).          Appellant was re-sentenced to an

aggregate of thirty-three to one-hundred twenty months of incarceration and

was credited for time served.     Appellant filed a post-sentence motion on

January 30, 2015, which was denied.         Appellant timely appealed.        As

ordered, Appellant filed a Pa.R.A.P. 1925(b) statement, and Appellant’s

counsel simultaneously filed a statement of intent to file an Anders brief.

      On August 31, 2015, Appellant’s counsel filed an Anders brief and a

petition for leave to withdraw as counsel. Counsel’s Anders brief raises the

following issue for our review: “Whether the appellant’s sentence is

manifestly excessive, clearly unreasonable       and inconsistent with        the

objectives of the Sentencing Code?” Anders/Santiago Brief at 3.

      When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw.   Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).     In requesting a withdrawal, counsel must satisfy the

following procedural requirements: 1) petition the court for leave to

withdraw stating that, after making a conscientious examination of the

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record, counsel has determined that the appeal would be frivolous; 2)

provide a copy of the brief to the defendant; and 3) advise the defendant

that he or she has the right to retain private counsel, proceed pro se or raise

additional arguments that the defendant considers worthy of the court’s

attention. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

        Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that she was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

her Anders brief. Counsel also advised Appellant of his right to retain new

counsel, to proceed pro se, or to raise any additional points he deems

worthy of this Court’s attention. Accordingly, we conclude that counsel has

satisfied the procedural requirements of Anders.

        We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court

held:

        [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
        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.




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Santiago, 978 A.2d at 361.         Here, our review of counsel’s brief indicates

that she has complied with the briefing requirements of Santiago.

      Once counsel has met her obligations, the reviewing court must fully

examine the proceedings and make an independent judgment as to whether

the appeal is, in fact, wholly frivolous.         Santiago, 978 A.2d at 355 n.5.

Thus, we now turn to the merits of Appellant’s appeal.

      Appellant argues that, although the trial court sentenced him within

the   guidelines,   it   failed   to   consider    the   factors     set   out   in   42

Pa.C.S.A. § 9721(b) and imposed a sentence that “is manifestly excessive,

clearly unreasonable and inconsistent with the objectives of the Pennsylvania

Sentencing Code.”        Anders/Santiago Brief at 6.               In support of this

contention, Appellant only contends that the trial court failed to take into

consideration the mitigating factors in his case, including Appellant’s young

age at the time of the offense, that Appellant was in his second year at

Mercyhurst University and majoring in Culinary Arts, that Appellant had no

prior record, and that Appellant apologized to the victims and returned the

property taken during the robbery. Id. at 6-7.

      When reviewing a challenge to the trial court’s discretion, our standard

of review is as follows.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. An abuse of discretion is
      more than just an error in judgment and, on appeal, the trial
      court will not be found to have abused its discretion unless the
      record discloses that the judgment exercised was manifestly


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     unreasonable, or the result of partiality, prejudice, bias, or ill-
     will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.

2002), appeal denied, 64 A.3d 630 (Pa. 2003)).

     An appellant’s right to appeal a discretionary aspect of sentence is not

absolute.   Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.

2011).

     Before we reach the merits of this [issue], we must engage in a
     four part analysis to determine: (1) whether the appeal is
     timely; (2) whether Appellant preserved his issue; (3) whether
     Appellant's brief includes a [Pa.R.A.P. 2119(f)] concise
     statement of the reasons relied upon for allowance of appeal
     with respect to the discretionary aspects of sentence; and (4)
     whether the concise statement raises a substantial question that
     the sentence is appropriate under the sentencing code. . . .
     Finally, if the appeal satisfies each of these four requirements,
     we will then proceed to decide the substantive merits of the
     case.

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)

appeal denied, 109 A.3d 678 (Pa. 2015). Appellant has complied with the

first three of these requirements as he has filed a timely appeal, preserved

his issue through a post-sentence motion, and his brief includes a Rule

2119(f) statement. We ordinarily next would determine if Appellant’s Rule

2119(f) statement presents a substantial question for review. As explained

below, we need not resolve that question.

     Even if Appellant had a raised a substantial question, he still cannot

obtain relief. Contrary to Appellant’s claim, our review of the transcript of



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the re-sentencing hearing indicates that the trial court did consider the

factors set forth in Section 9721(b) as well as the particular mitigating

circumstances that Appellant points out. See N.T. Sentencing, 1/21/15, 8-

9, 11, 14-16, 22-23.     The trial court specifically stated the following at

Appellant’s re-sentencing hearing.

           In this case I’ve considered the Pennsylvania Sentencing
      Code and it’s [sic] various factors.

       ....

            Initially the sentencing of the [c]ourt was 60 months to 10
      years, but I make the following observations: The guidelines are
      40 to 54 months. And normally I pick a sentence here at the
      bottom end of the standard range because he has no prior
      record. Pastor Sanders and his mother made a little headway
      with me. There’s nothing mitigated, nothing at all about this
      offense, okay, but I’m going to go below the standard range, the
      bottom end of the standard range by a little bit because I do
      think that his young man has rehabilitative potential and I don’t’
      believe every individual is as bad as the worst thing they’ve ever
      done. So I look at crimes but I sentence individuals.

       ....

      So here I am going to impose a sentence . . . of 33 months at
      the bottom end, which is seven months below the minimum of
      the guidelines. Not as low as I might have gone. Not as high as
      I was going to go when I came out here. But the people that
      have, participated and I’ve come down on that number, simply
      because I think he has rehabilitative potential. . . . I can’t go
      any lower than that. To impose less of a sentence would be to
      diminish the seriousness of what you did.

N.T. Sentencing, 1/21/15, at 26-28. Accordingly, Appellant’s argument that

the trial court failed to consider his mitigating circumstances fails.     We

therefore agree with counsel that the issue Appellant seeks to litigate in this


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appeal is wholly frivolous. Further, we have reviewed the record and we do

not discern any non-frivolous issues that Appellant could have raised.   As

such, we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2016




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