J-S66021-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                   1   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                      v.

RYAN JONES

                           Appellant                      No. 115 MDA 2016


            Appeal from the Judgment of Sentence September 10, 2015
                 In the Court of Common Pleas of Luzerne County
               Criminal Division at No(s): CP- 40 -CR- 0003085 -2014
                                           CP- 40 -CR- 0004129 -2014


BEFORE:       BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                               FILED OCTOBER 24, 2016

        Appellant, Ryan Jones, appeals from the judgment of sentence entered

after   a   jury convicted him of burglary    and simple assault. Additionally,

Appellant's court -appointed counsel, Matthew      P.   Kelly, Esquire, has filed an

application to withdraw as counsel pursuant to Anders v. California, 386

U.S. 738 (1967), and       Commonwealth v. Santiago, 978 A.2d 349               (Pa.

2009). We affirm the judgment of sentence and grant counsel's petition to

withdraw.

        At trial, the Commonwealth presented evidence that Jones had broken

into the residence of the victim, held    a   knife to the victim's throat, and

threatened to kill him. After the jury returned its guilty verdict, Jones pled
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guilty to   a   charge of terroristic threats arising from his conduct while in

custody awaiting trial.

       The trial court imposed          a   sentence of 4 to 8 years on the burglary

charge and      a   consecutive     3   to 6 months imprisonment on the terroristic

threats charge. The burglary sentence reflected the court's conclusion that

Jones had utilized     a   deadly weapon in committing the burglary.

       Jones's trial counsel declined to file         a   post- sentence motion, but filed   a


timely notice of appeal. Trial counsel subsequently withdrew, and Attorney

Kelly was appointed to represent Jones on appeal.

       On appeal,      Attorney Kelly has moved for permission to withdraw as

counsel and has submitted an Anders brief in support thereof contending

that Appellant's appeal        is   frivolous. The Pennsylvania Supreme Court has

articulated the procedure to be followed when court -appointed counsel seeks

to withdraw from representing an appellant on direct appeal:

        [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.
Santiago,       978 A.2d at 361             (Pa.    2009). 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

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judgment to decide whether the appeal             is in   fact wholly frivolous." Id. at

355 n.5 (citation omitted).

      Counsel has complied' with the technical requirements of               Anders     as

articulated in Santiago. Additionally, counsel confirms that he sent              a   copy

of the Anders brief to Appellant, as well as        a   letter explaining that Appellant

has the right to proceed pro se or the right to retain new counsel. Counsel

has appropriately appended a copy of the letter to the motion to withdraw,

as required by this Court's decision in         Commonwealth v. Millisock, 873
A.2d 748 (Pa. Super. 2005). See also Commonwealth v. Daniels, 999

A.2d 590, 594 (Pa. Super. 2010).

      Attorney Kelly sets forth two issues for our review in his Anders brief.

Jones has not filed     a   response to Attorney Kelly's brief.

      The first issue identified by Attorney Kelly is          a   challenge to the trial

court's application of the deadly weapon enhancement. Jones concedes that

this claim raises   a       challenge to the discretionary aspects of his sentence.

See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super.

2014) (en banc).

      We review such challenges in the following manner.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal

' However, we note that Attorney Kelly's Anders brief is best described as
the bare minimum required to meet the requirements set forth in Santiago.


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          absent a manifest abuse of discretion. In this context, an abuse
          of discretion is not shown merely by an error in judgment.
          Rather, the appellant must establish, by reference to the record,
          that the sentencing court ignored or misapplied the law,
          exercised its judgment for reasons of partiality, prejudice, bias
          or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517 -518                        (Pa.       Super. 2007)

(citation omitted).

          The right to appellate review of the discretionary aspects of           a   sentence

is   not absolute, and must be considered         a   petition for permission to appeal.

See id., at 518 (citation omitted). An appellant must satisfy              a   four -part test

to invoke this Court's jurisdiction when challenging the discretionary aspects

of   a   sentence.

          [W]e conduct a four -part analysis to determine: (1) whether
          appellant has filed a timely 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.

Commonwealth v. Moury, 992 A.2d 162, 170                    (Pa. Super. 2010) (citations

omitted).

          Jones filed   a   timely notice of appeal and preserved this argument by

presenting it at his sentencing hearing. See N.T., Sentencing, 9/10/15, at 4.

Furthermore, Attorney Kelly has included the required Pa.R.A.P. 2119(f)

statement in his brief. Furthermore, Jones's challenge to the application of

the      deadly weapon         enhancement    raises    a   substantial    question. See



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Buterbaugh,     91 A.3d at 1267. Thus, Jones is in technical compliance with

the requirements to challenge the discretionary aspects of his sentence.

      Jones argues that the sentencing court was not empowered to make         a


factual finding that he used   a   deadly weapon pursuant to Alleyne v. United

States, 133 S.Ct. 2151 (2013). However, this Court has rejected that
argument. See Buterbaugh, 91 A.3d at 1270 n.10. We agree with Attorney

Kelly that this issue is meritless.

      In his second issue, Attorney Kelly notes that Jones desires to

challenge the sufficiency of the evidence supporting        his   conviction for

burglary. A challenge to the sufficiency of evidence implicates the following

principles:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact -finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact -finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant's guilt may be resolved by the fact -finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.



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Commonwealth v. Hansley, 24 A.3d 410, 416            (Pa. Super. 2011) (citations

omitted) (emphasis added).

      Jones challenges the sufficiency of the evidence to support his burglary

conviction. "Under Pennsylvania law the crime of burglary is defined as an

unauthorized     entry with the   intent to commit        a    crime after entry."

Commonwealth v. Alston, 651 A.2d 1092, 1094                   (Pa. 1994) (citing 18

Pa.C.S.A.   §   3502). The Commonwealth presented the testimony of the

victim at trial. He testified that when Jones appeared at his back door, he

told Jones to "go away." N.T., Trial, 6/17/15, at 35. Jones proceeded to kick

down the door. See id., at 36. The victim told Jones to go away two more

times, but Jones proceeded to put    a   knife to the victim's throat. See id. This

evidence is sufficient to support Jones's conviction for burglary. We therefore

agree with Attorney Kelly that this claim is frivolous.

      After examining the issues contained in the Anders brief and after

undertaking our independent review of the record, we concur with counsel's

assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed. Application to withdraw as counsel

granted.

Judgment Entered.




J: sephD. Seletyn,
Prothonotary
Date: 10/24/2016

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