J-S23008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

MARK DAVID BARENDS

                            Appellant                 No. 3206 EDA 2015


              Appeal from the Judgment of Sentence May 8, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000652-2015
                                          CP-48-CR-0000653-2015


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED JUNE 07, 2016

        Appellant, Mark David Barends, appeals from the judgment of

sentence entered by the Honorable Stephen G. Baratta, President Judge of

the Court of Common Pleas of Northampton County. Additionally, Barends’

court-appointed counsel, Rory B. Driscole, Esquire, filed a petition to

withdraw as counsel and a brief 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 Attorney Driscole’s petition to

withdraw.

        The relevant factual and procedural history is as follows. Barends

entered a negotiated guilty plea to resisting arrest, possession of drug
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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paraphernalia, DUI, and harassment. Thereafter, the trial court sentenced

Barends to an aggregate term of 15 to 60 months’ imprisonment. The trial

court denied Barends’ post-sentence motion to withdraw his guilty plea.

Thereafter, Barends filed a motion to reinstate appellate rights nunc pro

tunc, which the trial court granted. This timely appeal followed. Attorney

Driscole subsequently filed a petition to withdraw as counsel and an Anders

brief.

         We begin by addressing Attorney Driscole’s petition to withdraw. If

counsel     believes   an   appeal   is    frivolous   and   wishes   to   withdraw

representation on appeal, he must follow certain steps.

           First, counsel must petition the court for leave to withdraw
           and state that after making a conscientious examination of
           the record, he has determined that the appeal is frivolous;
           second, he must file a brief referring to any issues in the
           record of arguable merit; and third, he must furnish a copy
           of the brief to the defendant and advise him of his right to
           retain new counsel or to himself raise any additional points
           he deems worthy of the Superior Court’s attention.

Santiago, 978 A.2d at 351 (citation omitted). Substantial compliance with

these requirements is sufficient. See Commonwealth v. Wrecks, 934 A.2d

1287, 1290 (Pa. Super. 2007). 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 (citation omitted).




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      Attorney Driscole has substantially complied with the technical

requirements of Anders as articulated in Santiago. Additionally, Attorney

Driscole sent a copy of the Anders brief to Barends, as well as a letter

explaining to Barends that he has the right to proceed pro se or retain new

counsel. Barends has not filed a response.

      We will now conduct an independent evaluation of the record to

determine the accuracy of Attorney Driscole’s averment that this appeal is

wholly frivolous. The Anders brief challenges discretionary aspects of

Barends’ sentence. See Appellant’s Brief, at 5. Thus, Barends was required

to “set forth in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of [his]

sentence.” Pa.R.A.P. 2119(f).

      The concise statement must specify where the sentence falls in
      relation to the sentencing guidelines and what particular
      provision of the code it violates. Additionally, the statement
      must specify what fundamental norm the sentence violates and
      the manner in which it violates that norm. If the statement
      meets these requirements, we can decide whether a substantial
      question exists.

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. Super. 2004) (internal

quotations and citations omitted).

      “[A] defendant’s statement must raise a substantial question as to

whether   the   court   properly     considered   the   sentencing   guidelines.”

Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010)

(citation omitted). A “substantial question” as to the inappropriateness of the



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sentence under the Sentencing Code 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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012)

(internal quotations and citations omitted).

      Here, the Anders brief does not include a 2119(f) statement, nor does

it cite to a particular provision of the Sentencing Code or a specific

fundamental norm that Barends’ sentence allegedly violates. Nevertheless,

in light of Attorney Driscole’s petition to withdraw, we will address the claim.

See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)

(stating that where counsel files an Anders brief, this Court will review

discretionary aspects of sentencing claims that were otherwise not properly

preserved).

      Our standard of review is as follows.

      Sentencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias,
      or ill will. It is more than just an error in judgment.

Downing, 990 A.2d at 792-93 (citation omitted).

      Upon review of the record, we conclude that the trial court did not

abuse its discretion in fashioning Barends’ sentence. After considering the

pre-sentence investigation report, the trial court imposed sentences within

the standard range of the sentencing guidelines for all of Barends’

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convictions. The standard range sentence is presumptively reasonable. See,

e.g., Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006).

Thus, Barends’ challenge to the discretionary aspects of his sentence is

meritless.

      After examining the issue contained in the Anders brief and

undertaking our own independent review of the record, we agree with

Attorney Driscole’s assessment that this appeal is wholly frivolous.

      Judgment of sentence affirmed. Permission to withdraw as counsel

granted. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2016




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