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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
CHRISTOPHER DOUGLASS,                    :         No. 729 WDA 2018
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, November 1, 2016,
              in the Court of Common Pleas of Venango County
             Criminal Division at Nos. CP-61-CR-0000196-2016,
                           CP-61-CR-0000197-2016


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 04, 2019

        Christopher Douglass appeals from the November 1, 2016 judgment of

sentence of the Court of Common Pleas of Venango County after he pled guilty

to 21 counts of sexual abuse of children, possession of child pornography,

criminal use of a communication facility, and indecent assault of a person with

a mental disability.1 Appellant received an aggregate sentence of 45 months

to 35 years of imprisonment. Matthew C. Parson, Esq. (“Attorney Parson”),

has filed an application to withdraw, alleging that the appeal is frivolous,




1   18 Pa.C.S.A. §§ 6312(c), 6312(d), 7512(a), and 3126(a)(6), respectively.
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accompanied by an Anders brief.2 After careful review, we grant counsel’s

petition to withdraw and affirm the judgment of sentence.

      The relevant factual background and procedural history as found by the

trial court is as follows:

             On July 25, 2016, [appellant] entered into a
             negotiated guilty plea in which the Commonwealth
             nolle prossed the remaining counts at criminal
             docket numbers 196-2016 and 197-2016 in exchange
             for his pleading guilty to the following counts: at
             196-20[1]6, Counts One through Twenty-one-
             Distribution of Photos/Videos of Child Sex Acts, all
             violations of 18 Pa.C.S.A. § 6312(c), Count
             Twenty-two-Possession of Child Pornography, in
             violation of 18 Pa.C.S.A. § 6312(d); and Count
             Twenty-three-Criminal Use of a Communication
             Facility, a violation of 18 Pa.C.S.A. § 7512(a). At
             docket number 197-2016, [appellant] pled guilty to
             Count Three-Indecent Assault/Person with Mental
             Disability, in violation of 18 Pa.C.S.A. § 3126(a)(6).

             On November 11, 2016, [appellant] was sentenced at
             docket number 196-2016, at Counts One to
             Twenty-one, to a term of incarceration of one (1) to
             ten (10) years, at Count Twenty-two to a term of
             incarceration of one (1) to ten (10) years, and at
             Count Twenty-three to a term of incarceration of
             nine (9) to (24) twenty-four months. That same day,
             [appellant] was sentenced at Count Three of docket
             number 197-2016 to a term of incarceration of
             nine (9) months to five (5) years. In our November 1,
             2016 Sentence Order[,] we indicated the following as
             to the above-cited sentences:

                   The sentence imposed at C.R. 196-2016
                   on counts 1, 2, and 3 are intended to run
                   consecutive to each other.      Counts 4
                   through 22 are intended to run concurrent

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).


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                  with each other and concurrent with the
                  sentence imposed at Count 3.         The
                  sentence imposed at Count 23 is intended
                  to run concurrent with the sentence
                  imposed at Count 3.      The sentence
                  imposed at C.R. 197-2016, Count 3, is
                  intended to run consecutive to the
                  sentence imposed at Count 3 of
                  C.R. 196-2016 for a total aggregate
                  sentence of three (3) years, nine (9)
                  months minimum to a maximum of
                  thirty-five (35) years.

            11/1/2016 Sentencing Order.

            On November 9, 2016, [appellant] filed a timely
            post-sentence motion, which was subsequently
            denied by this Court on November 17 of the same
            year. On October 11, 2017, [appellant] filed a PCRA
            petition with this Court and [Attorney Parson] was
            appointed by Order dated October 16, 2017. On
            April 16, 2018, a PCRA hearing was held, and on
            April 17th, this Court ordered that [appellant’s]
            appellate rights be reinstated. On April 26, 2018,
            [appellant] filed his Notice of Appeal with the Superior
            Court and thereafter received notice from this Court
            directing compliance with Pa.R.A.P. 1925. [Appellant]
            filed his Concise Statement on May 7, 2018.[3]

Trial court opinion, 5/17/18 at 1-2.

      Appellant raises the following issue for this court’s review: “Whether

the Sentencing Court erred as a matter of law or abused its discretion when

the Sentencing Court ordered an excessive sentence[?]” (Appellant’s brief at

5.)




3The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on May 17,
2018.


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      On July 9, 2018, Attorney Parson filed in this court a petition for leave

to   withdraw   as   counsel,   because    he   found   the   appeal   to   be

“wholly frivolous.” (Petition for leave to withdraw as counsel, 7/9/18 at 1,

¶ 3 (emphasis in original).) On July 9, 2018, Attorney Parson filed an Anders

brief. This court denied the petition to withdraw due to deficiencies in the

petition and Attorney Parson’s failure to comply with Anders as it was not

clear that he sent a complete brief to appellant.

      When this court denied the petition to withdraw, we remanded the case

to the trial court with instruction to counsel to file either a compliant

Anders/Santiago brief and an accurate petition to withdraw as counsel or an

advocate’s brief within 30 days of the date of this court’s memorandum.

Attorney Parson filed a new petition for leave to withdraw as counsel and a

timely Anders brief on November 21, 2018.

            A request by appointed counsel to withdraw pursuant
            to Anders and Santiago gives rise to certain
            requirements and obligations, for both appointed
            counsel and this Court. Commonwealth v. Flowers,
            113 A.3d 1246, 1247-1248 (Pa.Super. 2015).

                  These requirements and the significant
                  protection they provide to an Anders
                  appellant arise because a criminal
                  defendant has a constitutional right to a
                  direct appeal and to counsel on that
                  appeal. Commonwealth v. Woods, 939
                  A.2d 896, 898 (Pa.Super. 2007). This
                  Court     has     summarized        these
                  requirements as follows:

                        Direct appeal counsel seeking
                        to withdraw under Anders


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                    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 additional points
                    worthy     of    the    Court’s
                    attention.

               Woods, 939     A.2d   at   898   (citations
               omitted).

               There are also requirements as to the
               precise requirements of an Anders brief:

                    [T]he Anders brief that
                    accompanies court-appointed
                    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 appeal is


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                        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.

            Id. at 1248. If this Court determines that appointed
            counsel has met these obligations, it is then our
            responsibility “to make a full examination of the
            proceedings and make an independent judgment to
            decide whether the appeal is in fact wholly frivolous.”
            Id. at 1248. In so doing, we review not only the
            issues identified by appointed counsel in the Anders
            brief, but examine all of the proceedings to “make
            certain that appointed counsel has not overlooked the
            existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

      Regarding the requirements of Anders, Attorney Parson has filed a

petition that avers that, after a conscientious examination of the record, he

finds the appeal to be wholly frivolous. He has also filed a brief that attempts

to set forth the issues that might arguably support the appeal. He identifies

the issue in the statement of questions involved in the brief as: “Whether the

Sentencing Court erred as a matter of law or abused its discretion when the

Sentencing Court ordered an excessive sentence[?]” (Anders brief at 5.) The

body of the argument section of the brief addresses the issue contained in the

statement of questions involved, so the issue set forth in the brief complies




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with Anders. A review of the record reveals that Attorney Parson complied

with the requirements of Anders concerning notification.4

      With respect to the requirements of Santiago, Attorney Parson has

provided a summary of the procedural history and facts. He has also set forth

his conclusion that the appeal is frivolous.    Attorney Parson reaches this

conclusion because the trial court imposition of standard range minimum

sentences and maximum sentences at the statutory limit does not constitute

an abuse of discretion.

      Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5. As Attorney Parson has fulfilled

the requirements of Santiago, we now turn to the merits of appellant’s

appeal.

      The possible issue raised in the brief is that the trial court erred as a

matter of law or abused its discretion when it ordered an excessive sentence.




4 In Paragraph 3 of the petition to withdraw, Attorney Parson refers to the
sentence order of 45 months to 36 years. A review of the record reveals that
the Sentence Order filed on November 4, 2016, states that the aggregate
sentence is 3 years 9 months to 35 years as opposed to the 36 years listed in
the petition. (Sentence order, 11/4/16 at 3-4.) In addition, Attorney Parson
identifies appellant in the caption of the petition as “Chrisopher Douglas.”
(Petition for leave to withdraw as counsel, 11/19/18 at 1.) The record clearly
states that appellant’s name is “Christopher Douglass.” While these two
errors are not substantive, Attorney Parson should submit an accurate
petition.


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      In reviewing the record, the trial court had the benefit of a pre-sentence

investigation report when it imposed the sentence on appellant. The trial court

imposed minimum sentences within the sentencing guidelines. The trial court

imposed statutory maximums. However, many of the counts ran concurrent

to one another such that the aggregate maximum sentence totaled 35 years.

The trial court explained the basis for the sentence: “My sentence is based

on the conduct. My sentence is based on the conduct since this has occurred,

the plea and everything that is in front of me and in considering everything

that is presented in the presentence investigation.”       (Notes of testimony,

11/1/16 at 24.)

      Attorney Parson states correctly that a discretionary aspect of

sentencing can only be overturned if the sentencing court abused its

discretion.   See Commonwealth v. Raybuck, 915 A.2d 212 (Pa.Super.

2000).

      We note that:

              Sentencing is a matter vested in the sound discretion
              of the trial court and the lower court’s judgment of
              sentence will not be disturbed by an appellate court
              absent an abuse of discretion. To constitute an abuse
              of discretion, a sentence must either exceed the
              statutory limits or be patently excessive.       When
              reviewing sentencing matters, we must accord the
              sentencing court great weight as it is in the best
              position to view the defendant’s character, displays of
              remorse, defiance or indifference, and the overall
              effect and nature of the crime.




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Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa.Super. 1990) (citations

omitted).

      Here, the trial court explained its reasoning behind the sentence, the

sentence was within the standard range for minimum sentences, and no

sentence exceeded the statutory maximum. There is nothing the record that

suggests the sentence was either excessive or unreasonable.

            Further, where a sentence is within the standard
            range of the guidelines, Pennsylvania law views the
            sentence as appropriate under the Sentencing Code.
            See Commonwealth v. Cruz-Centeno, 447
            Pa.Super. 98, 668 A.2d 536 (1995), appeal denied,
            544 Pa. 653, 676 A.2d 1195 (1996) (stating
            combination of PSI and standard range sentence,
            absent more, cannot be considered excessive or
            unreasonable).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).

      Attorney Parson is correct when he determined the issue on appeal was

frivolous. This court agrees with Attorney Parson that the trial court did not

commit a manifest abuse of discretion.

      Additionally, our independent review of the entire record has not

disclosed any potentially non-frivolous issues. Consequently, we grant

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

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 2/4/2019




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