J-S47017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONN MICHAEL WALCK                         :
                                               :
                       Appellant               :     No. 25 MDA 2019

         Appeal from the Judgment of Sentence Entered August 3, 2018
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0004520-2017


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                         FILED: OCTOBER 18, 2019

        Appellant Donn Michael Walck appeals from the judgment of sentence

imposed following his open guilty plea to home improvement fraud.1

Appellant’s counsel has filed a petition to withdraw and an Anders/Santiago2

brief. We affirm and grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this appeal are as follows.

On April 17, 2017, a homeowner paid $3,000 to Appellant as a deposit for

home repairs. N.T., 4/23/18, at 4. Appellant never completed the work and

kept the money. Id. Appellant was subsequently arrested and charged.

        On April 23, 2018, Appellant entered an open guilty plea to the above

count. The trial court ordered a pre-sentence investigation report (PSI) and
____________________________________________


1   73 P.S. § 517.8(a)(2).

2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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scheduled a sentencing hearing. The PSI indicated that Appellant had a prior

record score of five and an offense gravity score of five. At sentencing, the

trial court established that the Pennsylvania Sentencing Guidelines called for

a minimum sentence of twelve to eighteen months’ imprisonment.              N.T.,

8/3/18, at 4. The trial court sentenced Appellant to eighteen to eighty-four

months’ incarceration.      The trial court also ordered the sentence to run

consecutive to unrelated Lehigh County sentences of thirty-nine to eighty-four

months’ imprisonment.

      Appellant filed a timely post-sentence motion, requesting that his

sentence run concurrent to his Lehigh County sentence. The trial court denied

the motion on December 3, 2018.

      Appellant timely filed a notice of appeal. Appellant’s counsel timely filed

a court-ordered statement pursuant to Pa.R.A.P. 1925(c)(4), in which he

indicated his intent to file an Anders brief. The trial court filed a Rule 1925(a)

opinion.   Subsequently, Appellant’s counsel withdrew due to a conflict of

interest. On April 10, 2019, the trial court appointed conflict counsel.

      On June 18, 2019, conflict counsel filed an Anders/Santiago brief and

a separate petition to withdraw. Appellant has not filed a pro se response or

a brief with new counsel.

      Counsel’s Anders/Santiago brief presents one issue for our review:

      1. Whether the trial court abused its discretion in running the
         sentence in this matter consecutive to the sentences received
         in Lehigh County?



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Anders/Santiago Brief at 3.3

        “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.

Super. 2008) (citation omitted).          Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to

withdraw stating that, after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to the appellant; and (3) advising the appellant that he has

the right to retain private counsel, proceed pro se, or raise additional

arguments that the appellant considers worthy of the court’s attention. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc).

        Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

        (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.


____________________________________________


3   The Commonwealth did not submit an appellate brief in this matter.

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         Only after determining that counsel has satisfied these technical

requirements may this Court “conduct an independent review of the record to

discern if there are any additional, non-frivolous issues overlooked by

counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (citations and footnote omitted); accord Commonwealth v. Yorgey,

188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

         Instantly, Appellant’s counsel has complied with the procedures for

seeking withdrawal by filing a petition to withdraw, sending Appellant a letter

explaining his appellate rights, and supplying Appellant with a copy of the

Anders/Santiago brief.           See Goodwin, 928 A.2d at 290.            Moreover,

counsel’s     Anders/Santiago          brief   substantially   complies   with   the

requirements of Santiago.           Counsel includes a summary of the relevant

factual and procedural history and concludes that the appeal is frivolous.4

Therefore, we proceed to address the issue raised in the Anders/Santiago

brief.

         The issue identified by counsel suggests that the trial court abused its

discretion by running Appellant’s sentence consecutive to the Lehigh County

sentences. Anders/Santiago Brief at 7.

         Our standard of review is as follows:

         Upon entry of a guilty plea, a defendant generally waives all
         defects and defenses except those concerning the validity of the
____________________________________________


4 Although the Anders/Santiago brief did not cite to the record, we do not
find that an obstacle to our review.


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      plea, the jurisdiction of the trial court, and the legality of the
      sentence imposed. However, when the plea agreement is open,
      containing no bargain for a specific or stated term of sentence,
      the defendant will not be precluded from appealing the
      discretionary aspects of his sentence.

Commonwealth v. Guth, 735 A.2d 709, 710 n.3 (Pa. Super. 1999) (citations

omitted).

      “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his issues; (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 inappropriate under the sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation

omitted).

      Here, Appellant timely appealed and properly preserved his claim in a

post-sentence motion and his Rule 1925(b) statement. See Corley, 31 A.3d

at 296. Counsel also substantially complied with Pa.R.A.P. 2119(f). See id.

Accordingly, we proceed to determine if Appellant’s issue raises a substantial

question for our review.

      By way of background,

      [w]e have stated that the imposition of consecutive rather than
      concurrent sentences lies within the sound discretion of the
      sentencing court.    Long standing precedent of this Court

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      recognizes that 42 Pa.C.S. § 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. A challenge to the imposition of consecutive
      rather than concurrent sentences does not present a substantial
      question regarding the discretionary aspects of sentence.

Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008) (citations

omitted).

      Subsequently, we held that a

      defendant may raise a substantial question where he receives
      consecutive sentences within the guideline ranges if the case
      involves circumstances where the application of the guidelines
      would be clearly unreasonable, resulting in an excessive sentence;
      however, a bald claim of excessiveness due to the consecutive
      nature of a sentence will not raise a substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (citations

and footnote omitted). “In determining whether a substantial question exists,

this Court does not examine the merits of whether the sentence is actually

excessive. Rather, we look to whether the appellant has forwarded a plausible

argument that the sentence, when it is within the guideline ranges, is clearly

unreasonable.” Id. (citation omitted).

      Instantly, we note that Appellant received a consecutive sentence within

the standard guideline range.        Further, the trial court’s sentencing

determination is supported by the record, including Appellant’s PSI and plea




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colloquy.5    Under these circumstances, Appellant’s sentence is not clearly

unreasonable or unduly harsh. See id.

       Therefore, Appellant’s intended claim does not raise a substantial

question, and we agree with counsel’s assessment that this claim is frivolous.

Furthermore, our review of the record reveals no non-frivolous issues for

appeal. See Flowers, 113 A.3d at 1250.

       Petition to withdraw granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2019




____________________________________________


5 Generally, “[w]here the [trial] court had the benefit of a [PSI], we can
assume the sentencing court was aware of relevant information regarding the
[Appellant]’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Griffin, 65 A.3d 932, 937
(Pa. Super. 2013) (citation and quotation marks omitted).

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