J-S61030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                        v.

    SHANNON MESSERSMITH

                             Appellant               No. 1142 EDA 2017


            Appeal from the Judgment of Sentence February 21, 2017
                   In the Court of Common Pleas of Pike County
    Criminal Division at No(s): CP-52-CR-0000501-2016, CP-52-CR-0000502-
                                      2016


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                       FILED NOVEMBER 03, 2017

        Appellant, Shannon Messersmith, appeals from the judgment of

sentence of eighteen months to four years of incarceration, imposed February

21, 2017, following her negotiated guilty plea to two counts of possession with

intent to deliver, and one count of possession of a controlled substance.1

Additionally, Appellant’s counsel, Robert Reno, Esquire, seeks to withdraw his

representation of Appellant pursuant to Anders v. California, 87 S. Ct. 1936

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

affirm and grant counsel’s petition to withdraw.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30) and (a)(16), respectively.
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       On October 6, 2016, Appellant pleaded guilty to the above charges and

was sentenced on February 21, 2017, to an aggregate sentence of eighteen

months to four years of incarceration. She filed a motion for reconsideration

of sentence that was denied by the court.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.           The trial court issued a

responsive opinion.

       In this Court, Appellant’s counsel has filed an Anders brief, asserting a

single issue that Appellant might seek to raise: whether the trial court abused

its discretion in sentencing Appellant. See Appellant’s Brief at 6.    Appellant

also questions whether there are any non-frivolous issues preserved on

appeal.2 Id.

       When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

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

Super. 2007) (en banc).         Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

       (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;
____________________________________________


2Although initially phrased as a question, counsel later concludes there are
no non-frivolous issues preserved on appeal. See Appellant’s Brief at 9.

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      (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.

Santiago, 978 A.2d at 361.

      Counsel also must provide a copy of the Anders brief to his client.
      Attending the brief must be a letter that advises the client of his
      right to: “(1) retain new counsel to pursue the appeal; (2) proceed
      pro se on appeal; or (3) raise any points that the appellant deems
      worthy of the court[’]s attention in addition to the points raised
      by counsel in the Anders brief.” Commonwealth v. Nischan,
      928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704,
      936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, only then may this Court “conduct an independent

review of the record to discern if there are any additional, non-frivolous issues

overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (citations and footnote omitted).

      In the instant matter, Attorney Reno’s Anders brief complies with the

above-stated requirements. Namely, he includes a summary of the relevant

factual and procedural history; he refers to the portions of the record that

could arguably support Appellant’s claims; and he sets forth his conclusion

that Appellant’s appeal is frivolous. He explains his reasoning and supports

his rationale with citations to the record as well as pertinent legal authority.

Attorney Reno avers he has supplied Appellant with a copy of his Anders brief



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and a letter explaining the rights enumerated in Nischan.           Accordingly,

counsel has complied with the technical requirements for withdrawal. Thus,

we may independently review the record to determine if the issues Appellant

raises are frivolous and to ascertain if there are other non-frivolous issues she

may pursue on appeal.

      The sole issue counsel potentially raises on Appellant’s behalf is a

challenge to the discretionary aspects of her sentence. See Appellant’s Brief

at 10-14. A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal.       See Commonwealth v.

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.

2119(f). This Court conducts a four-part analysis to determine: (1) whether

Appellant has timely filed a 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,   42   Pa.C.S.   §   9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).

      Appellant timely filed a notice of appeal and preserved her issue in a

post-sentence motion for reconsideration of sentence. See Mot. for Recons.,

2/24/17, at ¶¶ 1-13. However, Mr. Reno has not included a Pa.R.A.P. 2119(f)

statement in his brief before this Court. See Leatherby, 116 A.3d at 83.

Even so, where the Commonwealth does not object to the absence of a

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Pa.R.A.P. 2119(f) statement, “we may reach our own conclusion as to whether

Appellant should be permitted to proceed with [the] appeal.”               See

Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2005). Here,

the Commonwealth does not object to the lack of inclusion of a Pa.R.A.P.

2119(f) statement, but instead argues that no relief is due, as Appellant has

failed to raise a substantial question for our review.            Because the

Commonwealth has not expressly objected to the absence of a Rule 2119(f)

statement, we decline to find waiver. See Commonwealth v. Dodge, 77

A.3d 1263, 1271 (Pa. Super. 2013).

      Essentially, Appellant’s position is that her sentence is harsh and

excessive based upon her circumstances.          A claim that a sentence is

manifestly excessive may raise a substantial question if Appellant sufficiently

articulates the manner in which the sentence was inconsistent with the Code

or contrary to its norms. Commonwealth v. Mouzon, 812 A.2d 617, 627-

28 (Pa. 2002). A substantial question is not raised where the court takes into

account, but rejects personal circumstances as a mitigating factor, and places

its reasons for the sentence on the record.         See Commonwealth v.

Kalichak, 943 A.2d 285, 292 (Pa. Super. 2008).

      Appellant does not identify a specific provision of the Code with which

the sentence was inconsistent.     Further, an examination of the notes of

testimony of Appellant’s guilty plea indicates that the court was informed of

Appellant’s disability and the special needs of her children and that it had the

benefit of a pre-sentence investigation report and Appellant’s allocution. See

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Notes of Testimony (N.T.), 2/21/17, at 5-10.           Thus, we cannot conclude,

based on the record, that Appellant has raised a substantial question.

Kalichak, 943 A.2d at 292.

       In short, we agree with Attorney Reno that Appellant’s issue is frivolous.

We have independently reviewed the record and find no other issues of

arguable merit that she could pursue on appeal.3           Accordingly, we affirm

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

       Petition to withdraw granted.             Judgment of sentence affirmed.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2017




____________________________________________


3 We note that the certified record does not contain the notes of testimony
from Appellant’s guilty plea colloquy. However, her written colloquy does
appear in the record.

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