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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

JAMES EDWARD DROB, SR.

                            Appellant                 No. 1367 MDA 2015


              Appeal from the Judgment of Sentence July 8, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000897-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED JUNE 01, 2016

        Appellant, James Edward Drob, Sr., appeals from the judgment of

sentence entered in the Luzerne County Court of Common Pleas, following

his guilty plea to one (1) count each of conspiracy and criminal use of

communication facility.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On December 19, 2013, a confidential informant (“CI”) spoke with Appellant

via telephone to arrange a purchase of heroin.       Appellant told the CI that

another individual, William Rivera, Jr., would sell heroin to the CI.    Under

police surveillance, the CI subsequently drove to Appellant’s residence.

Appellant entered the CI’s vehicle and directed the CI to an address where
____________________________________________


1
    18 Pa.C.S.A. §§ 903, 7512, respectively.
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Mr. Rivera was present. Upon arrival, Appellant entered the residence with

the CI. The CI then purchased heroin from Mr. Rivera with pre-recorded buy

money.

       On July 17, 2014, Appellant pled guilty to conspiracy to deliver a

controlled substance and criminal use of communication facility. On July 8,

2015, the court sentenced Appellant to concurrent terms of thirty-six (36) to

seventy-two (72) months’ incarceration for each offense. Appellant filed a

timely notice of appeal on August 3, 2015. The court ordered Appellant to

file a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b). On September 9, 2015, counsel filed a statement of intent to file

an Anders2 brief, pursuant to Pa.R.A.P. 1925(c)(4). On February 29, 2016

counsel filed with this Court a petition to withdraw as counsel.

       As a preliminary matter, appellate counsel seeks to withdraw his

representation     pursuant     to   Anders,     supra   and   Commonwealth   v.

Santiago, 602 Pa. 159, 978 A.2d 349 (2009).                Anders and Santiago

require counsel to: 1) petition the Court for leave to withdraw, certifying

that after a thorough review of the record, counsel has concluded the issues

to be raised are wholly frivolous; 2) file a brief referring to anything in the

record that might arguably support the appeal; and 3) furnish a copy of the

brief to the appellant and advise him of his right to obtain new counsel or file
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2
  Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).



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a pro se brief to raise any additional points the appellant deems worthy of

review.    Santiago, supra at 173-79, 978 A.2d at 358-61.          Substantial

compliance with these requirements is sufficient.        Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007).          “After establishing that

the antecedent requirements have been met, this Court must then make an

independent evaluation of the record to determine whether the appeal is, in

fact, wholly frivolous.”      Commonwealth v. Palm, 903 A.2d 1244, 1246

(Pa.Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980,

982 (Pa.Super. 1997)).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where appellate counsel seeks to withdraw representation:

          Neither Anders nor McClendon[3] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that
          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed
          counsel’s petition to withdraw, counsel must: (1) provide a
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3
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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         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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, counsel’s petition to withdraw states that counsel conducted

a conscientious review of the certified record and determined the appeal is

wholly frivolous. Counsel provided copies of the Anders brief and petition to

withdraw to Appellant.     Counsel also sent Appellant a letter explaining

Appellant’s right to obtain new counsel or to proceed pro se to raise any

additional issues for this Court’s consideration. In the Anders brief, counsel

provides a statement of the case and refers to relevant law and evidence of

record that might arguably support Appellant’s discretionary aspects of

sentencing claim on appeal.       Counsel further states his reasons for his

conclusion that the appeal is wholly frivolous.       Therefore, counsel has

substantially complied with the requirements of Anders and Santiago.

      We proceed to an independent review of the issue raised in the

Anders brief:

         WHETHER THE IMPOSITION OF CONCURRENT SENTENCES
         ON CASE NO. 897 OF 2014 IS HARSH AND EXCESSIVE
         UNDER THE CIRCUMSTANCES.

(Anders Brief at 1).

      Appellant argues the trial court should have imposed a lesser sentence

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because Appellant is a military veteran. Appellant concludes his sentence is

manifestly excessive. As presented, Appellant challenges the discretionary

aspects of his sentence.    See Commonwealth v. Lutes, 793 A.2d 949

(Pa.Super. 2002) (stating claim that sentence is manifestly excessive

challenges discretionary aspects of sentencing); Commonwealth v. Cruz-

Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676

A.2d 1195 (1996) (stating claim that sentencing court failed to consider or

did not adequately consider certain factors challenges discretionary aspects

of sentencing).

     Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.    Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).      Prior to reaching the merits of a discretionary

sentencing issue:

        [W]e 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.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

     When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a


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separate concise statement demonstrating a substantial question as to the

appropriateness    of   the     sentence     under   the    Sentencing     Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). “The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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.”      Sierra,     supra   at    912-13      (quoting

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

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).          A bald allegation of

excessiveness does not present a substantial question.        Mouzon, supra.

Additionally, a court’s refusal to weigh proposed mitigating factors as the

defendant wishes, absent more, does not raise a substantial question.

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

      Instantly, Appellant failed to raise his sentencing challenge at the

sentencing hearing or in a timely filed post-sentence motion.         Therefore,

Appellant’s issue is waived. See Evans, supra. Moreover, Appellant’s bare

assertion that his sentence was excessive in light of one particular mitigating

factor, absent more, does not raise a substantial question.        See Moury,

supra. Based on our independent examination of the record, we conclude


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this appeal is wholly frivolous.   Accordingly, we affirm and grant counsel’s

petition to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2016




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