J-S05037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAROD C. GOLSON,

                            Appellant                 No. 389 MDA 2015


            Appeal from the Judgment of Sentence February 2, 2015
                in the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0002927-2013


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED JANUARY 21, 2016

        Appellant, Jarod C. Golson, appeals from the judgment of sentence

imposed following his open guilty plea to possession with intent to deliver

(PWID), heroin. Specifically, Appellant challenges the denial of his request

for an Intermediate Punishment Program (IPP) sentence. Counsel has filed

an Anders brief,1 and requested permission to withdraw.2       We affirm the

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

        On February 2, 2015, after Appellant had entered a counseled open

guilty plea to PWID, 35 P.S. § 780-113(a)(30), the court sentenced him to a
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*
    Retired Senior Judge assigned to the Superior Court.
1
    See Anders v. California, 386 U.S. 738 (1967).
2
    Appellant has not responded to the petition to withdraw.
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term of not less than twenty-four months’ nor more than forty-eight months’

incarceration in a state correctional institution.       (See N.T. Sentence,

2/02/15, at 9).       The court noted it had the benefit of a pre-sentence

investigation report (PSI). (See id. at 2). The sentence was in the standard

range.     The court designated Appellant RRRI eligible.3     (See id. at 9).

Although Appellant was allowed to request an IPP sentence, and did so, an

IPP sentence was not made part of the plea agreement. (See id. at 4-5).

As part of the plea agreement, the Commonwealth withdrew a second count,

criminal use of communication facility, 18 Pa.C.S.A. § 7512.        (See Trial

Court Opinion, 6/08/15, at 2 n.1).

        Docket entries confirm that Appellant did not file a post-sentence

motion but did file a timely notice of appeal, on February 12, 2015. Counsel

timely filed a court-ordered statement of errors on March 6, 2015.          See

Pa.R.A.P. 1925(b).      The trial court filed an opinion on June 8, 2015.   See

Pa.R.A.P. 1925(a).

        Before reaching the merits of the issue raised in the Anders brief, we

address counsel’s petition to withdraw. See Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700

A.2d 1301, 1303 (Pa. Super. 1997)) (“When faced with a purported Anders



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3
    See Recidivism Risk Reduction Incentive Act, 61 Pa.C.S.A. §§ 4501–4512.



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brief, this Court may not review the merits of the underlying issues without

first passing on the request to withdraw.”).

      To withdraw pursuant to Anders, counsel must: 1) petition the Court

for leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; 2) file a

brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him or

her of the right to obtain new counsel or file a pro se brief to raise any

additional points that the appellant deems worthy of review.               See

Commonwealth v. Garang, 9             A.3d 237, 240     (Pa. Super. 2010).

Thereafter, this Court independently reviews the record and issues. See id.

      Here, on review, it appears that counsel has substantially complied

with Anders, supra, and Commonwealth v. Santiago, 978 A.2d 349, 361

(Pa. 2009) (holding counsel must state reasons for concluding that appeal is

frivolous). Counsel has also substantially complied with Commonwealth v.

Millisock, 873 A.2d 748, 752 (Pa. Super. 2005), by filing a copy of the

notice letter advising Appellant of his rights. Therefore, we will undertake

our own independent review of the appeal to determine if it is wholly

frivolous.

      In his Anders brief, Appellant’s counsel presents one issue that might

arguably support an appeal:

            “Whether the trial court abused its discretion in sentencing
      the Appellant[?]”

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(Anders Brief, at 1).4

       This claim challenges the discretionary aspects of Appellant’s sentence.

It is well-established that:

       [s]entencing 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. In this context, an abuse
       of discretion is not shown merely by an error in judgment.
       Rather, the appellant must establish, by reference to the record,
       that the sentencing court ignored or misapplied the law,
       exercised its judgment for reasons of partiality, prejudice, bias
       or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005),

appeal denied, 890 A.2d 1057 (Pa. 2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)).

       Where an appellant challenges the discretionary aspects of a sentence

there is no automatic right to appeal, and an appellant’s appeal should be

considered to be a petition for allowance of appeal. See Commonwealth v.

W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).              As we observed in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

             An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test:

                [W]e conduct a four-part analysis to determine: (1)
          whether appellant has filed a timely notice of appeal, see
          Pa.R.A.P. 902 and 903; (2) whether the issue was properly
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4
  The Commonwealth did not file a brief in this appeal. (See letter of
assistant district attorney to Deputy Prothonotary, 10/06/15).



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          preserved at sentencing or in a motion to reconsider and
          modify sentence, see Pa.R.Crim.P. [720]; (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).

Id. at 170 (case citation omitted).

      “The determination of whether a substantial question exists must be

determined on a case-by-case basis.”      Commonwealth v. Hartman, 908

A.2d 316, 320 (Pa. Super. 2006) (citation omitted).           This Court has

explained that: “[a] substantial question exists where an 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.”           Id.

(quoting Commonwealth v. Koren, 646 A.2d 1205, 1208 (Pa. Super.

1994)).

      In this case, Appellant has met the first prong of this test by timely

filing a notice of appeal.       However, he has failed to preserve his

discretionary aspects of sentencing issue at sentencing or in a timely-filed

motion to reconsider sentence pursuant to Pa.R.Crim.P. 720.              Thus,

Appellant’s claim is waived.   See Commonwealth v. Bromley, 862 A.2d

598, 603 (Pa. Super. 2004), appeal denied, 881 A.2d 818 (Pa. 2005), cert.

denied, 546 U.S. 1095 (2006) (appellant’s challenge to discretionary aspects

of his sentence waived if appellant has not filed post-sentence motion

challenging discretionary aspects with sentencing court).

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      Even if Appellant had preserved the issue, Appellant would still not be

entitled to relief. This Court has previously held that “where the sentencing

court imposed a standard-range sentence with the benefit of a pre-sentence

report, we will not consider the sentence excessive.”         Commonwealth v.

Corley,   31    A.3d    293,   298   (Pa.   Super.   2011)    (citation   omitted);

Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010), appeal

denied, 25 A.3d 328 (Pa. 2011) (citation omitted) (where trial court had

benefit of PSI, “we can assume the [ ] court was aware of relevant

information    regarding   the   defendant’s   character     and   weighed   those

considerations along with mitigating statutory factors.”).

      Here, Appellant sought IPP on the basis of sickle cell anemia.          (See

N.T. Sentence, at 3). As noted by the sentencing court, Appellant’s medical

condition did not hamper his ability to commit crimes over the preceding

fourteen years. (See Trial Ct. Op. at 4). Moreover, “an allegation that the

sentencing court did not consider certain mitigating factors does not raise a

substantial question.” Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.

Super. 2003) (citation omitted).

      We agree with counsel that Appellant’s claim is wholly frivolous. On

independent review we find no other non-frivolous issues which would merit

relief for Appellant.




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J-S05037-16


     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2016




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