J. S08027/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                     v.                    :
                                           :
DENNIS SCHELL,                             :        No. 912 WDA 2016
                                           :
                          Appellant        :


             Appeal from the Judgment of Sentence, May 18, 2016,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0014569-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 15, 2017

        Dennis Schell appeals from the May 18, 2016 aggregate judgment of

sentence of 15 to 30 years’ imprisonment imposed after he pled guilty to

multiple counts of robbery.1 Contemporaneously with this appeal, counsel2

has requested leave to withdraw in accordance with Anders v. California,

386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa.

1981), and their progeny. After careful review, we grant counsel’s petition

to withdraw and affirm the judgment of sentence.

        The trial court summarized the relevant facts and procedural history of

this case as follows:


1
    18 Pa.C.S.A. § 3701(a)(1)(ii), (vi).
2
  Appellant is represented on appeal by Thomas N. Farrell, Esq. (hereinafter,
“counsel” or “Attorney Farrell”).
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                 [Appellant] was charged with four (4) counts of
          Robbery and one (1) count of Robbery of a Financial
          Institution in relation to two (2) robberies of First
          Commonwealth Bank and one (1) robbery of
          Citizen’s Bank. On December 13, 2012, [Appellant]
          appeared before th[e trial c]ourt and entered a
          general plea of guilty to all charges. Following the
          preparation of a Pre-Sentence Investigation Report
          and a mental health evaluation, [Appellant] again
          appeared before th[e trial c]ourt on March 18, 2013
          and was sentenced to three (3) mandatory,
          consecutive terms of imprisonment of five (5) to
          10 years for an aggregate term of imprisonment of
          15 to 30 years. No Post-Sentence Motions were filed
          and no direct appeal was taken.

                 No action was taken until June 2, 2014, when
          [Appellant]    filed  a   pro    se    “Petition   for
          Reconsideration of Sentence.”      Th[e PCRA c]ourt
          treated the Petition as a Post Conviction Relief Act
          Petition and appointed counsel to represent
          [Appellant]. Counsel subsequently filed an Amended
          PCRA Petition averring the ineffective assistance of
          counsel in relation to [Appellant’s] Post Sentence
          Motion rights. By Order of July 14, 2014, th[e PCRA
          c]ourt granted collateral relief and reinstated
          [Appellant’s] Post-Sentence Motion rights nunc pro
          tunc. Post Sentence Motions were subsequently
          filed and were denied on July 23, 2014.           The
          judgment of sentence was affirmed by the Superior
          Court on January 13, 2015 and our Supreme Court
          denied    [Appellant’s]  subsequent     Petition   for
          Allowance of Appeal on March 31, 2015.           [See
          Commonwealth v. Schell, 118 A.3d 445
          (Pa.Super. 2015), appeal denied, 113 A.3d 279
          (Pa. 2015) (unpublished memorandum).]

                 No further action was taken until June 24,
          2015, when [Appellant] filed a pro se [PCRA]
          Petition.  [Attorney] Farrell [] was appointed to
          represent [Appellant], and an Amended Petition
          followed which alleged an Alleyne claim with regard
          to th[e trial c]ourt’s imposition of mandatory
          sentences.    Upon consideration of the Amended


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            Petition and the Commonwealth’s response thereto,
            th[e PCRA c]ourt granted relief in the form of
            resentencing. The resentencing hearing was held on
            May 18, 2016, at which time th[e trial c]ourt
            imposed a non-mandatory sentence consisting of
            three (3) consecutive terms of imprisonment of
            five (5) to 10 years. Timely Post -Sentence Motions
            were filed [on May 23, 2016] and were denied on
            May 31, 2016.

Trial court opinion, 8/30/16 at 1-2 (case citation added; footnotes omitted).

      On June 27, 2016, Appellant filed a timely notice of appeal.         On

June 28, 2016, counsel filed a statement of his intention to file an

Anders/McClendon brief, in accordance with Pa.R.A.P. 1925(c)(4).           On

August 30, 2016, the trial court filed an opinion, concluding that there were

no meritorious issues on appeal. (See Trial Court Opinion, 8/30/16 at 3-4.)

Thereafter, on November 28, 2016, Appellant’s counsel filed a motion and

brief to withdraw from representation.       Appellant did not respond to

counsel’s motion to withdraw.

      In his Anders brief, counsel raises the following issues on Appellant’s

behalf:

            1.    Whether the sentencing court abused its
                  discretion by imposing an excessive and harsh
                  sentence of fifteen (15) to thirty (30) years of
                  incarceration for three (3) counts of robbery?

            2.    Whether the sentencing court abused its
                  discretion by failing to give the proper weight
                  to the facts presented at the sentencing
                  hearing included [sic], but not limited to, the
                  following: a) [a]ppellant has a serious health
                  condition and was essentially given a death
                  sentence, b) [a]ppellant’s conduct in prison


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                   was relatively good, c) [a]ppellant was a
                   veteran, d) [a]ppellant has a mental health
                   problem and e) when [a]ppellant was given the
                   wrong prescription, he would rob banks?

Anders brief at 7.

      “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).        In order to withdraw pursuant to Anders,

“counsel must file a brief that meets the requirements established by our

Supreme Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014)

(parallel citation omitted). Specifically, counsel’s Anders brief must comply

with the following requisites:

             (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.

Id. (citation omitted).




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

2005), and its progeny, “[c]ounsel also must provide a copy of the Anders

brief to his client.”   Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief

must be accompanied by a letter that advises the client of the option 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.”

Id.   “Once counsel has satisfied the above requirements, it is then this

[c]ourt’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) (citation and internal quotation marks omitted).

      Instantly, we conclude that counsel has satisfied the technical

requirements of Anders and Santiago. Counsel has identified the pertinent

factual and procedural history and made citation to the record. Counsel has

also raised two discretionary aspects of sentencing claims that could

arguably support an appeal, but ultimately concludes that the appeal is

wholly frivolous.   Counsel has also attached to his petition a letter to

Appellant, which meets the notice requirements of Millisock. Accordingly,

we proceed to conduct an independent review of the record to determine

whether this appeal is wholly frivolous.



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      Appellant contends that the trial court abused its discretion by

imposing an excessive sentence of 15 to 30 years’ imprisonment and by

failing to give proper weight to several mitigating factors. (Anders brief at

22, 25.) These claims are meritless.

      Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.           See Commonwealth v. Allen, 24 A.3d

1058, 1064 (Pa.Super. 2011).                 Rather, an Appellant challenging the

discretionary aspects of his sentence must invoke this court’s jurisdiction by

satisfying the following four-part test:

            (1) whether the appeal is timely; (2) whether
            [a]ppellant preserved his issue; (3) whether
            [a]ppellant’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.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Here, the record reveals that Appellant filed a timely notice of appeal

and preserved his issues in his May 23, 2016 post-sentence motion. (See

“Post-Sentencing Motions,” 5/23/16 at ¶¶ 16A-16B.) Appellant also included

a   statement   in     his   brief   that    comports   with   the   requirements   of

Pa.R.A.P. 2119(f).      (See Anders brief at 17-22.)           Accordingly, we must

determine whether Appellant has raised a substantial question.




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      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)

(citation omitted).   “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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),

appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

      Upon review, we find that Appellant has failed to raise a substantial

question that his sentence is not appropriate under the Sentencing Code.

This court has long recognized that “a bald assertion that a sentence is

excessive does not by itself raise a substantial question justifying this

Court’s review of the merits of the underlying claim.” Commonwealth v.

Harvard, 64 A.3d 690, 701 (Pa.Super. 2013), appeal denied, 77 A.3d 636

(Pa. 2013) (citation omitted); see also Commonwealth v. Mouzon, 812

A.2d 617, 623 (Pa. 2002) (holding that an excessiveness claim that is raised

against a sentence that falls within the statutory limits, as is the case here,

does not raise a substantial question).     Likewise, “a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”   Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super.

2013) (citation omitted); see also Commonwealth v. Moury, 992 A.2d



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162, 171 (Pa.Super. 2010) (stating that an “allegation that [the] sentencing

court failed to consider or did not adequately consider certain factors

generally does not raise a substantial question.”) (citation and internal

quotation marks omitted).

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

appeal is wholly frivolous and that Appellant is entitled to no relief on his

discretionary aspects of sentencing claims.     After our own independent

review of the record, we discern no additional issues of arguable merit.

Accordingly, we grant counsel’s petition to withdraw and affirm the May 18,

2016 judgment of sentence.

     Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/15/2017




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