J-S12008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TRACEY E. DOWNING

                            Appellant                No. 1687 EDA 2015


              Appeal from the Judgment of Sentence April 7, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0000779-2015


BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                         FILED FEBRUARY 09, 2016

        Appellant, Tracey E. Downing, appeals from the April 7, 2015

judgment of sentence of one to two years’ imprisonment in a state

correctional institution, imposed by the trial court after Appellant entered an

open guilty plea to one count of retail theft and one count of simple assault. 1

With this appeal, Appellant’s counsel has filed a petition to withdraw and an

Anders2 brief, stating that the appeal is wholly frivolous.       After careful

review, we affirm and grant counsel’s petition to withdraw.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3929(a) and 2701(a)(1), respectively.
2
    Anders v. California, 386 U.S. 738 (1967).
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       The trial court summarized the relevant factual and procedural history

of this case as follows.

                    On January 1, 2015, police responded to a
              Wal-Mart store located in Bensalem Township, Bucks
              County, Pennsylvania, to investigate the report of a
              theft. Upon arriving at the scene, Wal-Mart security
              advised police that a black male, later identified as
              Appellant, had exited the store with six watches
              worth a combined value of $239.84.         As store
              security attempted to stop Appellant, Appellant
              shoved an employee, causing the employee to hit
              her head against the wall.      Appellant was then
              located a short distance away from the Wal-Mart and
              was identified as the perpetrator by Wal-Mart
              security.

                     On April 7, 2015, Appellant entered an open
              guilty plea to one count of retail theft and one count
              of simple assault. The retail theft conviction was
              graded as a felony of the third degree because
              Appellant has an extensive criminal history including
              over ten convictions for retail theft. Appellant was
              sentenced on the retail theft conviction to twelve to
              twenty-four months incarceration in a state
              correctional institution.   [No further penalty was
              imposed for the simple assault conviction.]
              Thereafter,     Appellant    filed   a    Motion     for
              Reconsideration of Sentence. After a hearing held
              May 11, 2015, Appellant’s Motion was denied.
              Appellant then timely filed [a] Notice of Appeal to the
              Superior Court of Pennsylvania.[3]




____________________________________________


3
   On June 11, 2015, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant complied on
June 26, 2015. The record does not indicate that Appellant filed a response
to the Anders brief.



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Trial Court Opinion, 7/7/15, at 1-2 (citations to notes of testimony and

footnotes omitted).

     In the Anders Brief, counsel has raised the following issues for our

review.
             1. Whether counsel’s petition to withdraw and
                request for dismissal of the appeal should be
                granted where counsel has diligently investigated
                the possible grounds of appeal and finds the
                appeal frivolous?

             2. Did the sentencing court abuse its discretion by
                imposing a sentence that was excessive in that it
                exceeds what is necessary to protect the public
                and rehabilitate the Appellant?

Anders Brief at 4.

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

merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

                    [W]e hold that in 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


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              have led to the conclusion that the appeal is
              frivolous.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

              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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation omitted). “Once counsel has satisfied

the above requirements, it is then this Court’s duty to conduct its own

review of the trial court’s proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,

“this Court must 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)

(footnote and citation omitted).




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       In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Second, counsel

advances relevant portions of the record that arguably support Appellant’s

claims on appeal.          Third, counsel concluded, “Appellant’s counsel has

diligently investigated the possible grounds and finds the appeal frivolous.

Undersigned      counsel    can    find   no   argument     that   arguably    supports

Appellant’s appeal.” Anders Brief at 16. Lastly, counsel has complied with

the requirements set forth in Millisock.                See Letter from Counsel to

Appellant, dated 8/17/15.            As a result, we proceed to conduct an

independent review to ascertain if the appeal is indeed wholly frivolous.

       Appellant asserts that the trial court abused its discretion by imposing

a sentence “that was excessive in that it exceeds what is necessary to

protect the public and rehabilitate the Appellant.” Anders Brief at 12-15.4

At   the   outset,   we    note    that   Appellant’s    argument   pertains    to   the

discretionary aspects of his sentence.         “Pennsylvania law makes clear that

by entering a guilty plea, the defendant waives his right to challenge on

direct appeal all non[-]jurisdictional defects except the legality of the

sentence and the validity of the plea.”          Commonwealth v. Lincoln, 72
____________________________________________


4
   At the May 11, 2015 hearing on Appellant’s post-sentence motion to
reconsider sentence, Appellant did not offer any new information, but rather
expressed his desire to be incarcerated in a county facility with work release
eligibility. N.T., 5/11/15, at 2-3.



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A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d

319 (Pa. 2014). However, when a defendant’s plea is an open guilty plea,

he or she does not waive claims regarding the discretionary aspects of the

sentence “because there was no agreement as to the sentence [the

defendant] would receive.” Commonwealth v. Hill, 66 A.3d 359, 363 (Pa.

Super. 2013) (citation omitted). Nevertheless, “[t]here is no absolute right

to appeal when challenging the discretionary aspect of a sentence.”

Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation

omitted).       When an appellant makes an argument pertaining to the

discretionary aspects of the sentence, this Court considers such an argument

to be a petition for permission to appeal. Commonwealth v. Buterbaugh,

91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal

denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this

Court determines that there is a substantial question that the sentence was

not appropriate under the sentencing code.” Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks

and citation omitted).

      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether     a    petition   for   permission   to   appeal   should   be   granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)




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(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

            (1) [W]hether appellant has filed a timely notice of
            appeal, Pa.R.A.P. 902, 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, 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).

Id.

      Instantly, Appellant filed a timely motion for reconsideration of

sentence and notice of appeal.     Also, the Anders brief includes a Rule

2119(f) statement.    Anders Brief at 12-13.       We therefore proceed to

address whether Appellant has raised a substantial question for our review.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75

(Pa. 2013). “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.”          Id.

(citations omitted). “Additionally, we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine




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whether a substantial question exists.”     Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa. Super. 2012).

      In this case, Appellant avers that the trial court abused its discretion

based on the following claims.

                   The sentencing court failed to properly weigh
            the mitigating factors presented by Appellant.
            Moreover, the imposition of a state correctional
            institute   sentence   was     unreasonable    when
            considering the gravity of the offense, the need to
            protect the public and Appellant’s rehabilitative
            needs.

Appellant’s Pa.R.A.P. 2119(f) Statement, Anders Brief at 13.

      This Court has long recognized that “an allegation that a sentencing

court … did not adequately consider certain factors does not raise a

substantial question that the sentence was inappropriate.” Commonwealth

v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008), appeal denied, 968 A.2d

1280 (Pa. 2009); see also Commonwealth v. Bullock, 868 A.2d 516, 529

(Pa. Super. 2005), affirmed, 913 A.2d 207 (Pa. 2006), cert. denied, 550

U.S. 941 (2007). Furthermore, this Court has held that an argument that

the trial court failed to consider certain mitigating factors in favor of a lesser

sentence does not present a substantial question appropriate for our review.

Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 2011);

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

Consequently, Appellant has failed to a raise a substantial question for our

review. See Edwards, supra.



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      We note that even if we were permitted to address the merits,

Appellant would not be entitled to relief.             The trial court explained

Appellant’s sentence, stating “[i]n light of Appellant’s significant criminal

history, and because the sentence fell within the standard range of the

sentencing guidelines, the trial court did not abuse its discretion…”          Trial

Court Opinion, 7/7/15, at 2.      The trial court further commented that “[i]n

imposing [Appellant’s] sentence, the trial court considered Appellant’s

extensive criminal history, which included one felony conviction and sixteen

misdemeanor convictions; over ten of which were for theft related offenses.

N.T., 4/7/2015, pp. 13-14.”       The trial court expressed its rationale more

bluntly   at     sentencing,   and   after   hearing    Appellant’s   motion    for

reconsideration of sentence, as follows.

                     Well, it appears that [Appellant] is a career
               criminal and a poor one. I can’t give [Appellant] a
               sentence that is not one of total confinement in a
               state correctional facility. To do so would be to
               ignore [Appellant’s] history. And, of course, the fact
               that   [Appellant]    assaulted    somebody     while
               committing this offense.

N.T., 4/7/15, at 12.

               I want to be more lenient to [Appellant], but I have
               an obligation to the community as well.

                     It’s one thing for somebody to stand before me
               on their second, third, fourth matter, but when you
               get to your fifth, sixth, seventh, the game changes.
               Your ninth, tenth, eleventh, it ups again. When you
               get to number 17 and 18, [Appellant] pretty much
               took the matter out of [the trial court’s] hands.


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N.T., 5/11/15, at 5-6.

     Based on the foregoing, we agree with counsel that Appellant’s

sentencing issue lacks merit.   In addition, we have reviewed the certified

record consistent with Flowers and have discovered no additional arguably

meritorious issues. Accordingly, we grant counsel’s petition to withdraw and

affirm the April 7, 2015 judgment of sentence.

     Judgment of sentence affirmed.         Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




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