J-S56033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SCOTT USEVICZ,

                            Appellant                 No. 414 MDA 2015


            Appeal from the Judgment of Sentence February 4, 2015
             in the Court of Common Pleas of Lackawanna County
               Criminal Division at No.: CP-35-CR-0001090-2014


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 05, 2015

        Appellant, Scott Usevicz, appeals from the judgment of sentence

imposed following his entry of a guilty plea to two counts of aggravated

assault by vehicle while driving under the influence, and one count each of

fleeing or attempting to elude a police officer and driving under the influence

(DUI).1 Counsel for Appellant has petitioned to withdraw on the ground that

his issues on appeal are wholly frivolous.2    We grant counsel’s petition to

withdraw and affirm the judgment of sentence.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3735.1(a), 3733(a), and 3802(c), respectively.
2
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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       The relevant facts and procedural history of this case are as follows.

On October 14, 2014, Appellant entered a guilty plea to the above-

mentioned charges. In exchange, numerous other charges filed against him

were nolle prossed.       The charges stem from an August 31, 2012 incident

during which he fled from police in his vehicle, flipping the vehicle after

driving across a sidewalk and over a wall, causing serious bodily injury to his

two passengers. Appellant’s blood alcohol content (BAC) at that time was

0.22 percent. At the guilty plea hearing, the trial court deferred sentencing

for preparation of a pre-sentence investigation report (PSI).

       On January 14, 2015, following a hearing, the court sentenced

Appellant to an aggregate term of not less than six nor more than fifteen

years’ incarceration.      On January 23, 2015, Appellant filed a petition for

reconsideration of sentence, which the trial court granted because the

probation office had provided it with inappropriate sentencing guidelines. On

January 28, 2015, the court entered an order vacating the original sentence.

       The court held a second sentencing hearing on February 4, 2015, and

it re-sentenced Appellant to an aggregate term of not less than four nor

more than fifteen years’ incarceration.3 The court explained its rationale for

the aggregate sentence as follows:
____________________________________________


3
  The court imposed consecutive sentences on the two aggravated assault
counts and the DUI count; it ran the sentence on the fleeing or attempting
to elude a police officer count concurrently to the other sentences. (See
N.T. Sentencing, 2/04/15, at 8-9). The sentences on the aggravated assault
(Footnote Continued Next Page)


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             . . . [A] problem, from my viewpoint, is the apparent lack
      of respect that you have for the law, and, in particular, for the
      [laws] applied to the operation of motor vehicles. You had
      [thirteen] separate license suspensions, numerous, numerous
      citations[.] . . . [W]hen you compound that situation by adding
      alcohol to the equation, then you have the kind of conduct that
      resulted not only in the accidents that involve the injuries to the
      young men, but the fleeing from the police when everything that
      started out was a DUI. Had you just responded the way that
      [ninety-eight] percent of people do who are being signaled to
      stop when there’s a DUI, this would have been history a long
      time ago. There would have been no injuries. There would have
      been no shortened scholastic careers by the young men that
      were involved and no permanent injuries that they’re going to
      have to suffer with for the rest of their lives.

(N.T. Sentencing, 2/04/15, at 6-8).

      Appellant filed a motion for reconsideration of sentence on February 9,

2015, which the trial court denied. This timely appeal followed.4

      On June 22, 2015, counsel for Appellant filed an Anders brief and a

petition to withdraw as counsel stating her belief that this appeal is without

merit. (See Petition to Withdraw as Counsel, 6/22/15, at unnumbered page

2). Counsel has submitted to this Court a copy of her letter to Appellant,

enclosing a copy of the Anders brief, informing him of the petition to

withdraw, and advising him of his right to retain new counsel or proceed


                       _______________________
(Footnote Continued)

counts fell at the top of the standard range of the sentencing guidelines.
(See id. at 10).
4
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on March 20, 2015. See
Pa.R.A.P. 1925(b). The trial court entered an opinion on April 21, 2015.
See Pa.R.A.P. 1925(a).



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with the appeal pro se.      (See Letter from Donna M. De Vita, Esq. to

Appellant, 6/22/15, at unnumbered page 1). Appellant has not responded.

      [I]n the Anders brief that accompanies . . . 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, supra at 361.

          Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

           If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel to either comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)

(citations omitted).

      In the instant case, counsel has complied with the Anders and

Santiago requirements.     She has submitted a brief that summarizes the

case, (see Anders Brief, at 5-7); referred to anything that might arguably


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support the appeal, (see id. at 8-9, 11, 13-15); and set forth her reasoning

and conclusion that the appeal is frivolous, (see id. at 8-9, 16).        See

Santiago, supra at 361.      Counsel has filed a petition to withdraw, sent

Appellant a letter advising that she concluded that there are no non-frivolous

issues, provided him with a copy of the Anders brief, and notified him of his

right to retain new counsel or proceed pro se.    Because counsel’s petition

and brief satisfy the requirements of Anders and Santiago, we will

undertake our own review of the appeal to determine if it is wholly frivolous.

See O’Malley, supra at 1266.

      The Anders brief raises the following issues for our review:

      A.   Whether the sentences imposed were inappropriately harsh and
      excessive and an abuse of discretion?

      B.    Whether the totality of the circumstances for which . . .
      Appellant was charged was neither so unique nor so egregious as to
      warrant sentences of incarceration in the high end of the standard
      guideline range?

      C.    Whether the [trial] court failed to impose concurrent sentences
      on all of the charges since they arose out of the same criminal
      behavior and occurred at the same time?

(Anders Brief, at 4).

      Appellant’s issues challenge the discretionary aspects of his sentence.

Our standard of review is as follows:

            Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. An abuse of
      discretion is more than just an error in judgment and, on appeal,
      the trial court will not be found to have abused its discretion
      unless the record discloses that the judgment exercised was

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       manifestly unreasonable, or the result of partiality, prejudice,
       bias, or ill-will.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted).

       However, “[t]he right to appeal the discretionary aspects of a sentence

is not absolute.”     Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.

Super. 2011) (citation omitted).

              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 [see Pa.R.A.P. 2119(f)]; and
       (4) whether the concise statement raises a substantial question
       that the sentence is appropriate under the sentencing code. . . .
       [I]f the appeal satisfies each of these four requirements, we will
       then proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).

       In the instant case, Appellant filed a timely notice of appeal and

preserved his claims in the trial court,5 and counsel has included a Rule

2119(f) statement in the Anders brief.           See id.   With respect to the

substantial question requirement:

             The determination of what constitutes a substantial
       question must be evaluated on a case-by-case basis.         A
       substantial question exits only when the appellant advances a
____________________________________________


5
  (See Petition for Reconsideration of Sentence, 2/09/15, at unnumbered
pages 1-2; N.T. Sentencing Hearing, 2/04/15, at 3-4).



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     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. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).

     Here, Appellant first argues that his aggregate sentence is unduly

harsh and excessive. (See Anders Brief, at 8, 11-13). This Court has held

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. Fisher, 47 A.3d 155, 159 (Pa.

Super. 2012), appeal denied, 62 A.3d 378 (Pa. 2013) (citation omitted).

Thus, Appellant’s bald claim that his sentence is excessive does not raise a

substantial question. See id.

     Appellant next argues that the court erred in imposing sentences at

the high end of the standard guideline range because the facts of this case

do not warrant such lengthy sentences.      (See Anders Brief, at 11, 14).

However, Appellant has not articulated what provision of the Sentencing

Code or what fundamental norm was violated by imposing a sentence at the

high end of the standard guideline range.      (See id.); see also Austin,

supra at 808. Thus, Appellant’s claim does not raise a substantial question.

Further, we note “where a sentence is within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the




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Sentencing Code.”    Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.

Super. 2010) (citation omitted).

     Finally, Appellant claims the trial court should have imposed all

sentences concurrently because the charges arose out of the same criminal

behavior that occurred at the same time. (See Anders Brief, at 11, 15-16).

However, “[l]ong standing precedent of this Court recognizes that 42

Pa.C.S.A. § 9721 affords the sentencing court discretion to impose its

sentence concurrently or consecutively to other sentences being imposed at

the same time or to sentences already imposed.”         Commonwealth v.

Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014), appeal denied, 117 A.3d 297

(Pa. 2015) (case citations omitted).      In general, “[a] challenge to the

imposition of consecutive rather than concurrent sentences does not present

a substantial question regarding the discretionary aspects of sentence.” Id.

(citation omitted). Such claim raises a substantial question only in the most

extreme circumstances, and this Court focuses on whether the aggregate

sentence appears excessive in light of the criminal conduct on its face. See

id; see also Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super.

2012) (en banc), appeal denied, 75 A.3d 1281 (Pa. 2013).

     Here, Appellant’s criminal conduct includes fleeing from police officers

and flipping his vehicle, causing severe injury to his two passengers, while

his BAC was 0.22, more than twice the legal limit. Appellant “is not entitled

to a ‘volume discount’ because the various crimes occurred in one


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continuous spree.” Zirkle, supra at 134. Appellant’s aggregate sentence

does not appear manifestly excessive on its face in light of his criminal

conduct, and he has not raised a substantial question.   See id.

     Moreover, after independent review of the record, see O’Malley,

supra at 1266, we conclude that the trial court did not abuse its discretion

in imposing Appellant’s aggregate sentence.    See Clarke, supra at 1287.

As discussed above, the court comprehensively stated on the record its

reasons for its determination that, given Appellant’s extensive prior record,

history of ignoring traffic laws, and the severe injuries suffered by his

passengers, the sentence was appropriate. Furthermore, we determine that

there are no other non-frivolous bases for appeal, and this appeal is “wholly

frivolous.” O’Malley, supra at 1266.

     Judgment of sentence affirmed.       Petition for leave to withdraw as

counsel granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2015




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