J-S52024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ALAN L. BARKMAN

                            Appellant               No. 111 WDA 2015


            Appeal from the Judgment of Sentence December 3, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001016-2014
                            CP-25-CR-0001850-2014


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 15, 2015

       Appellant, Alan L. Barkman, appeals from the judgment of sentence

entered on December 3, 2014, following his guilty plea to driving under the

influence of alcohol (DUI) – high rate of alcohol and DUI – highest rate of

alcohol.1     Because of the new convictions, the trial court also revoked a

probationary sentence that Appellant was serving on an underlying DUI

offense. The trial court resentenced Appellant on that crime as well. In this

direct appeal, Appellant’s court-appointed counsel filed both a petition to

withdraw as counsel and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We conclude that Appellant’s counsel complied with
____________________________________________


1
    75 Pa.C.S.A. §§ 3802(b) and 3802(c), respectively.
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the procedural requirements necessary for withdrawal.                  Moreover, after

independently reviewing the record, we conclude that the instant appeal is

wholly frivolous.      We therefore grant counsel’s petition to withdraw and

affirm Appellant’s judgment of sentence.

       We summarize the factual and procedural history of this case as

follows.      On   October       7,   2014,    Appellant   pled   guilty   to   the   two

aforementioned DUI charges. Those charges were the result of two separate

DUI arrests occurring within two months of each other. At the time of the

plea, Appellant was on probation for a prior DUI. N.T., 12/3/2014, at 9. On

December 3, 2014, the trial court found Appellant in violation of his

probation and resentenced him on his prior DUI and also imposed a sentence

for the new convictions. In sum, the trial court sentenced Appellant to an

aggregate term of 56 to 180 months of incarceration with credit for time

served. The trial court also found Appellant was eligible for the Recidivism

Risk Reduction Incentive (RRRI) program and reduced his aggregate

minimum sentence from 56 to 42 months of incarceration.                     This timely

appeal followed.2
____________________________________________


2
   Appellant filed a motion to reconsider his sentence on December 10, 2014.
The trial court denied relief by an order filed on December 15, 2014. On
January 14, 2015, Appellant filed a notice of appeal. On January 26, 2015,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on January 29, 2015. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on February 12, 2015, stating Appellant’s sentence “was
appropriate in light of all the factors [the trial court] considered (pre-
(Footnote Continued Next Page)


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        On appeal, Appellant’s counsel included one issue in his Anders brief:

          Whether [] [Appellant’s] sentence is manifestly excessive,
          clearly unreasonable and inconsistent with the objectives of
          the Sentencing Code?

Anders Brief at 3.

        Before reviewing the merits of this appeal, however, this Court must

first   determine       whether    counsel       fulfilled   the   necessary      procedural

requirements      for     withdrawing       as     counsel.        Commonwealth           v.

Washington, 63 A.3d 797, 800 (Pa. Super. 2013).                         To withdraw under

Anders,      court-appointed         counsel       must      satisfy    certain    technical

requirements. 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.”                          Commonwealth v.

Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an

Anders brief, in which counsel:

          (1) provide[s] a summary of the procedural history and
          facts, with citations to the record;

          (2) refer[s] to anything in the record that counsel believes
          arguably supports the appeal;


                       _______________________
(Footnote Continued)

sentence report, revocation summary, etc.) and the facts and circumstances
of the crimes committed, as well as [Appellant’s] performance while under
supervision.” Trial Court Opinion, 2/12/2015, at 1.



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         (3) set[s] forth counsel’s conclusion that the appeal is
         frivolous; and

         (4)    state[s] 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.

Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.

       Finally, counsel must furnish a copy of the Anders brief to his client

and “advise[] him of his right to retain new counsel, proceed pro se or raise

any additional points that he deems worthy of the court’s attention, and

attach[] to the Anders petition a copy of the letter sent to the client.”

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation

omitted).

       If counsel meets all of the above 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). It is only when both the procedural and substantive requirements

are satisfied that counsel will be permitted to withdraw. In the case at bar,

counsel has met all of the above procedural obligations.3 We now turn to

the issue raised in the Anders brief.

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3
    Appellant has not filed a response to counsel’s Anders brief.




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      The Anders brief contends that the trial court abused its discretion in

imposing an excessive sentence.        This claim does not challenge the

revocation of Appellant’s probation or the fact that the trial court imposed a

sentence of total confinement upon Appellant.      Rather, Appellant’s claim

challenges the discretionary aspects of his sentence.    Commonwealth v.

Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010), appeal denied, 25 A.3d 328

(Pa. 2011).

      “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.” Commonwealth v. Clarke, 70 A.3d 1281,

1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an

automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).     Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

      As this Court has explained:

        To reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, Pa.R.Crim.P. [708]; (3) whether appellant’s brief
        has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
        is a substantial question that the sentence appealed from is
        not appropriate under the Sentencing Code, 42 [Pa.C.S.A.]
        § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when


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a court revokes probation and imposes a new sentence, a criminal defendant

needs to preserve challenges to the discretionary aspects of that sentence

either by objecting during the revocation sentencing or by filing a post-

sentence motion”).    As previously noted, Appellant filed a timely notice of

appeal and the issue was properly preserved in a post-sentence motion.

Counsel’s Anders brief also has a statement pursuant to Pa.R.A.P. 2119(f).

Thus, we turn to whether the appeal presents a substantial question.

      As we have explained:

        The determination of whether a particular case raises a
        substantial question is to be evaluated on a case-by-case
        basis. Generally, however, in order to establish that there
        is a substantial question, the appellant must show actions
        by the sentencing court inconsistent with the Sentencing
        Code or contrary to the fundamental norms underlying the
        sentencing process.

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted).

      Appellant's position is that the imposition of multiple consecutive

sentences is disproportionate to his crimes. “This Court has [] determined

that such an assertion, in combination with allegations that a sentencing

court did not consider the nature of the offenses or provide adequate

reasons for its sentence, presents a plausible argument that the length of

the sentence violates fundamental sentencing norms.”     Commonwealth v.

Dodge, 77 A.3d 1263, 1271-1272 (Pa. Super. 2013).




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      In sentencing Appellant, the trial court was required to “consider the

general principles and standards of the Sentencing Code.” Commonwealth

v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses

these general principles in the following manner:

         the sentence imposed should call for confinement that is
         consistent with the protection of the public, the gravity of
         the offense as it relates to the impact on the life of the
         victim and on the community, and the rehabilitative needs
         of the defendant.

42 Pa.C.S.A. § 9721(b).

      We also note that when the trial court has the benefit of a presentence

investigation (PSI) report, “we presume the court was aware of and weighed

information concerning Appellant's character when making its sentencing

decision.”    Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super.

2010).

      Here, before imposing Appellant’s sentence, the trial court:

         [C]onsidered the Pennsylvania Sentencing Code, the [PSI],
         and the Pennsylvania Guidelines on Sentencing as they
         appl[ied] to the new charges.        The [c]ourt [] also
         considered the revocation summary, the statements of
         defense counsel, [Appellant], and the attorney for the
         Commonwealth.          The [trial c]ourt [] considered
         [Appellant’s] age, background, character, and rehabilitative
         needs, the nature, circumstances, and seriousness of the
         offenses, the protection of the community, and [Appellant’s]
         performance while under supervision.

N.T., 12/3/2014, at 13.

      Because the trial court had the benefit of a PSI report, we presume it

considered Appellant’s character in rendering its decision. Moury, 992 A.2d


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at 175.   Moreover, the trial court specifically examined the factors under

Section 9721. The trial court determined that Appellant presented “a danger

to other people” because in the two recent DUI offenses, Appellant’s blood

alcohol level was “in the one case, [] over three times the legal limit, and

[in] the other case just slightly less [than] twice the legal limit.”      N.T.,

12/3/2014, at 13. In the first instance, Appellant was “found slumped over

the wheel of a vehicle with [his] foot pressed on the accelerator in the

McDonald’s parking lot in Edinboro.”      Id. at 14.   In the other incident,

Appellant was “driving on busy Route 19 crossing over the double line and

fog lines on several occasions [with] a blood alcohol level of .284 [%].” Id.

The trial court noted that “on each of those occasions, [it was] indeed

fortunate [Appellant] or someone else wasn’t seriously injured.”     Id.    The

trial court also considered letters written on Appellant’s behalf from seven

members of the community, as well as the fact that a number of people

were present to support Appellant at sentencing.          Id. at 8, 15-16.

Ultimately, the trial court determined Appellant was not amenable to

rehabilitation, because he had six previous DUIs since 1979 and was on

probation following intermediate punishment at the time of his seventh

infraction. Id. at 14-17. The trial court concluded that Appellant was jailed

multiple times and given opportunities for rehabilitation, but “[n]one of that

deters” him. Id. at 17.

      Based upon the foregoing, we discern the trial court did not abuse its

discretion in imposing Appellant’s sentence. The trial court had the benefit

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of a PSI report, so we presume the trial court was aware of Appellant’s

individual circumstances. The trial court went further, however, and, on the

record, carefully considered the protection of the public, the gravity of the

offenses as they related to the impact on the community, and the

rehabilitative needs of Appellant before imposing a sentence of total

confinement. Ultimately, the trial court concluded that Appellant is a danger

to himself and the community and that prior incarceration did not deter him

for well over 30 years.

      Moreover, after an independent review of the entire record, we see

nothing that might arguably support this appeal. The appeal is, therefore,

wholly frivolous.    Accordingly, we affirm Appellant’s judgment of sentence

and grant counsel’s petition for leave to withdraw appearance.

      Petition for leave to withdraw as counsel granted.         Judgment of

sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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