J-S47003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

PATRICK LEE STALEY,

                            Appellant                       No. 2154 MDA 2014


      Appeal from the Judgment of Sentence entered September 2, 2014,
               in the Court of Common Pleas of Luzerne County,
              Criminal Division, at No: CP-40-CR-00000891-2014


BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                                     FILED JULY 24, 2015

        Patrick Lee Staley (“Appellant”) appeals from the judgment of

sentence imposed by the trial court after Appellant pled guilty to one count

of theft by unlawful taking of a motor vehicle, and one count of fleeing or

attempting to elude police.1             Appellant’s appointed counsel seeks to

withdraw,     citing   Anders     v.    California,   386   U.S.   738   (1967)   and

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). We affirm the

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

        The pertinent facts and procedural background of this case are as

follows:    On February 24, 2014, officers from the Plains Township Police

Department were dispatched to the Mohegan Sun Casino in Luzerne County

____________________________________________


1
    18 Pa.C.S.A. § 3921(a) and 75 Pa.C.S.A. § 3733(a).



*Retired Senior Judge specially assigned to the Superior Court.
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following a report of a vehicle theft. Affidavit of Probable Cause, 2/27/14.

Upon arrival, Officer William Poulos spoke with the victim, Stanley Grebeck,

who testified that he had arrived at the casino at approximately 10:18 p.m.,

and left his car, a blue Ford Focus, in the valet parking lot, with the keys in

the ignition. Id. Approximately two hours later, he returned to retrieve his

vehicle, and found that it was not in the valet parking lot. Id. Surveillance

video from the Mohegan Sun Casino revealed that at approximately 10:36

p.m., a white male, approximately 40 years of age, entered Mr. Grebeck’s

vehicle and drove it toward the casino exit.

      On February 27, 2014, Officer Baranski of the Plains Township Police

Department observed a blue Ford Focus travelling on Miner Street in Plains,

Luzerne County, which matched the description of Mr. Grebeck’s vehicle.

Id.   Officer Baranski also observed that the driver of the vehicle matched

the description of the person seen in surveillance footage driving the vehicle

from the casino.    Officer Baranski alerted Officer Poulos, who arrived at

Miner Street and checked the vehicle registration. Id. Upon learning that

the registration was expired, the officers attempted to conduct a traffic stop

of the vehicle. Id. However, Appellant fled in the vehicle to Kidder Street

and eventually came to a stop on Jenks Lane, a dead end street, where

Appellant and an unidentified passenger exited the vehicle and fled on foot.

Id.    Appellant was subsequently apprehended and charged with the

aforementioned crimes.




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      On July 10, 2014, Appellant pled guilty to one count of theft by

unlawful taking, and one count of fleeing and eluding police.      Following a

hearing on September 2, 2014, the trial court sentenced Appellant to a term

of imprisonment of twelve to twenty-four months for theft by unlawful

taking, and a consecutive three to six months for fleeing and eluding, for an

aggregate sentence of fifteen to thirty months of imprisonment.

      On September 19, 2014, Appellant’s counsel filed a motion for

permission to file nunc pro tunc post-sentence motions, which the trial court

granted by order filed on September 23, 2014. Appellant filed post-sentence

motions on September 26, 2014, which the trial court denied on October 2,

2014. This appeal followed.

      On November 17, 2014, Appellant’s counsel filed a notice of intent to

file an Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c).                  On

December 15, 2014, the trial court entered an order explaining that in light

of   counsel’s   November   17,   2014   statement   of   intent   to   file   an

Anders/McClendon brief, it would not submit a Pa.R.A.P. 1925(a) opinion.

      Appellant presents one issue for our review:

      1. Whether the consecutive sentences imposed by the trial court
         on Case No. 891 of 2014 are harsh and excessive?

Anders Brief at 1.

      Appellant’s counsel has filed a brief pursuant to Anders and its

Pennsylvania counterpart, McClendon.        See Anders, 386 U.S. 738;

McClendon, 434 A.2d at 1187.       Where an Anders/McClendon brief has


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been presented, our standard of review requires counsel seeking permission

to withdraw pursuant to Anders to:        (1) petition the court for leave to

withdraw stating that after making a conscientious examination of the record

it has been determined that the appeal would be frivolous; (2) file a brief

referring to anything that might arguably support the appeal, but which does

not resemble a “no merit” letter or amicus curiae brief; and (3) furnish a

copy of the brief to the defendant and advise him of his right to retain new

counsel or raise any additional points that he deems worthy of the court's

attention.   Commonwealth v. McBride, 957 A.2d 752, 756 (Pa. Super.

2008). Counsel is required to submit to this Court “a copy of any letter used

by counsel to advise the appellant of the rights associated with the Anders

process.”    Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super.

2007). Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009), appellant’s counsel must state in the Anders brief the reasons for

concluding that the appeal is frivolous. If these requirements are met, we

may then review the record to determine whether we agree with counsel’s

assessment.

      In the instant case, by letter dated April 30, 2015, Appellant’s counsel

notified Appellant of her intent to file an Anders brief and petition to

withdraw with this Court, and informed Appellant of his rights to retain new

counsel and raise additional issues. That same day, Appellant’s counsel filed

an appropriate petition seeking leave to withdraw.        Finally, Appellant’s

counsel has submitted an Anders brief to this Court, with a copy provided to

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Appellant.    Accordingly, the technical requirements of Anders have been

met.     We will therefore conduct our own independent examination of the

issue set forth in the Anders brief to determine if it is frivolous and whether

counsel should be permitted to withdraw.

        Appellant’s sole argument on appeal is that the sentence imposed by

the trial court was excessive.      Anders Brief at 5-8.     A challenge to the

discretionary aspects of a sentence is not appealable as of right.        Rather,

Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §

9781.     Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.

2004).

              Before we reach the merits of this [issue], we must engage
        in a four part analysis to determine: (1) whether the appeal is
        timely; (2) whether Appellant preserved his issue; (3) whether
        Appellant's brief includes a concise statement of the reasons
        relied upon for allowance of appeal with respect to the
        discretionary aspects of sentence; and (4) whether the concise
        statement raises a substantial question that the sentence is
        appropriate under the sentencing code. The third and fourth of
        these requirements arise because Appellant's attack on his
        sentence is not an appeal as of right. Rather, he must petition
        this Court, in his concise statement of reasons, to grant
        consideration of his appeal on the grounds that there is a
        substantial question. Finally, if the appeal satisfies each of these
        four requirements, we will then proceed to decide the
        substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

        Here, Appellant has filed a timely notice of appeal, and preserved a

challenge to the discretionary aspects of his sentence by filing a post-


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sentence motion. In addition, Appellant has included in his brief a statement

pursuant to Pa.R.A.P. 2119(f).      See Anders Brief at 5.     We therefore

proceed to determine whether Appellant has raised a substantial question for

our review.

     Appellant argues that the trial court abused its discretion by imposing

a harsh and excessive sentence when it denied Appellant’s request for

admission to the Salvation Army Rehabilitation Program rather than a

sentence of imprisonment. Anders Brief at 6.

            The determination of what constitutes a substantial
     question must be evaluated on a case-by-case basis. Further:

           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.

           An appellant making an excessiveness claim raises a
     substantial question when he sufficiently articulates the manner
     in which the sentence violates either a specific provision of the
     sentencing scheme set forth in the Sentencing Code or a
     particular fundamental norm underlying the sentencing process.

           When imposing a sentence, the sentencing court must
     consider the factors set out in 42 [Pa.C.S.] § 9721(b), that is,
     the protection of the public, gravity of offense in relation to
     impact on victim and community, and rehabilitative needs of the
     defendant.    And, of course, the court must consider the
     sentencing guidelines.


Commonwealth v. Caldwell, 2015 PA Super 128 (May 29, 2015) (citations

and internal quotations omitted).




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      Appellant argues that in making its sentencing determination, the trial

court should have taken into consideration the fact that Appellant had been

sober for six years preceding his relapse and the commission of his crimes,

and that Appellant had previously benefitted from the Salvation Army

Rehabilitation Program. Anders Brief at 6. See also Post-Sentence Motion,

9/26/14. Appellant asserts that the trial court’s failure to consider enrolling

him in the rehabilitation program rather than imposing a sentence of total

confinement, constituted an abuse of sentencing discretion. This Court has

made clear, however, that “a claim that a court did not weigh the factors as

an   appellant    wishes   does    not     raise   a   substantial   question.”

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).

Accordingly, Appellant’s assertion that the trial court did not properly weigh

the fact that he had previously benefitted from rehabilitation and had been

sober for an extended period, does not raise a substantial question for our

review.

      Even if Appellant had raised a substantial question for our review, we

find no merit to his claim. At the sentencing hearing, the trial court heard

statements from Appellant’s counsel, who outlined Appellant’s prior criminal

history, including the fact that Appellant was on parole at the time he

committed the crimes in the present case, and requested that Appellant be

enrolled in the Salvation Army Rehabilitation Program. N.T., 9/2/14, at 3.

Additionally, the trial court heard from Appellant, who informed the trial


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court that he likely would not have committed the crimes if he had been

enrolled in a rehabilitation program, and indicated that he would benefit

greatly from such program and treatment. Id. at 6.

      The trial court, which had the benefit of a pre-sentence investigation

report, nonetheless explained that because Appellant was already on

supervision at the time he committed the crimes, “it’s the conclusion of the

Court that [Appellant] is nonamenable to supervision at this time and ...

based upon that review that if he’s not incarcerated he’s likely to reoffend”,

and that “if any rehabilitation is going to take place at this point that it’s best

done at the state level.” Id. at 7-8. Accordingly, it is clear from the record

that the trial court in making its sentencing determination considered the

appropriate factors, including Appellant’s rehabilitative needs, the protection

of the public, and Appellant’s prior criminal history.      We find no abuse of

discretion by the trial court.

      Having reviewed the issue contained in the Anders brief, and after

independent and thorough review of the record, we find this appeal wholly

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

the judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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