J-S35029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSEPH M. LEWIS                         :
                                         :
                    Appellant            :     No. 1709 MDA 2017

            Appeal from the Judgment of Sentence October 5, 2017
              In the Court of Common Pleas of Bradford County
             Criminal Division at No(s): CP-08-CR-0000220-2017


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.                    FILED: NOVEMBER 9, 2018

     Joseph Lewis pled guilty to aggravated and simple assault based on

charges he punched an acquaintance in the head from behind, causing her to

fall to the pavement and break her jaw. Lewis argues the court abused its

discretion in imposing a standard range sentence of four to eight years’

imprisonment. Also, Lewis’s counsel, Patrick Lee Beirne, Esquire, seeks

permission to withdraw as counsel pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We grant counsel permission to withdraw, and affirm the judgment of

sentence.

     The trial court reviewed a video tape of the crime at hearing on Lewis’s

pre-trial petition for writ of habeas corpus, and gave the following summary:

     A car pulls into a gas station and the victim, a woman later
     identified as Lori Markle, after exiting the vehicle from the back
J-S35029-18


      seat passenger side and casually standing near the car as she puts
      on her coat, begins to walk away from the car. When she is twenty
      or so feet away, the front passenger side door is quickly opened
      and a man, later identified as the defendant, Joseph Lewis,
      urgently exits the vehicle and bounds quickly after the victim, who
      appeared unaware of his approach because she had her back
      turned to him and was walking away from the car. As he nears
      the victim, which only takes a couple seconds, he pulls back his
      right arm and, as he continues to rapidly move towards her,
      unleashes a powerful blow with his right fist to hit her in the side
      of her head and face with a violent round house punch that had
      the energy of his large moving body behind it. The victim is driven
      by the blow off her feet and on to the pavement at approximately
      1:54:38 on the surveillance video. She lays [sic] motionless
      except for some slight movements of her head. … As soon as the
      defendant delivered the blow, he casually walks back to the car,
      reaches into the backseat, grabs a man by his head and shoulders
      and pulls him out of the car and onto the pavement. The defendant
      then gets in the car which drives away leaving the victim
      motionless on the ground.

Trial Court Opinion, 7/26/17, at 2-3.

      After the court denied Lewis’s petition, Lewis pled guilty to aggravated

assault and simple assault. The court determined the simple assault charge

merged with the aggravated assault charge for sentencing purposes. And it

imposed a standard guideline range sentence of four to eight years’

imprisonment.

      Lewis filed a post-sentence motion, but before the court could rule on

it, he filed this appeal. The court ordered him to file a statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The court then

amended the sentencing order to include the amount of restitution imposed.

      Lewis’s privately retained counsel petitioned this Court to withdraw, and

then filed a Rule 1925(b) statement. We granted counsel permission to

                                     -2-
J-S35029-18


withdraw, and the Bradford County Public Defender’s Office subsequently

entered its appearance on behalf of Lewis. Attorney Beirne then entered his

appearance as a member of the public defender’s office.

       Attorney Beirne has also filed a petition to withdraw. Despite some mis-

steps,1 Attorney Beirne has substantially complied with the mandated

procedure for withdrawing as counsel. See Santiago, 978 A.2d at 361

(articulating Anders requirements); Commonwealth v. Daniels, 999 A.2d

590, 594 (Pa. Super. 2010) (providing that counsel must inform client by letter

of rights to proceed once counsel moves to withdraw and append a copy of

the letter to the petition). Lewis did not file a response.

       As counsel has met his technical obligation to withdraw, we must now

“make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.”

Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super. 2015)

(citation omitted).



____________________________________________


1 There is no proof of service to Lewis attached to counsel’s petition to
withdraw. Nor does the letter advising Lewis of his rights under
Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005), indicate that
the petition was enclosed. However, both the letter and the petition are
attached to counsel’s brief, which does include a certification of service upon
Lewis dated April 10, 2017.

Also, counsel’s brief is substantially in the form of an advocate’s brief, rather
than a traditional Anders brief. Additionally, the brief’s statement of the case
lacks citations to the record. These deficiencies do not hinder our ability to
review this straightforward case.

                                           -3-
J-S35029-18


       Counsel identifies a single issue for our review. Lewis asserts the

sentence imposed is “unduly harsh.” Anders Brief, at 10. He concedes this is

a challenge to the discretionary aspects of his sentence. See id.

       “To preserve issues concerning the discretionary aspects of sentencing,

a defendant must raise them during sentencing or in a timely post-sentence

motion.” Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008)

(citations omitted). While Lewis did file a post-sentence motion, it only raised

two issues: that his criminal record score was miscalculated, and that he is

eligible for the Recidivism Risk Reduction Incentive program. See Post Trial

[sic] Motions, filed 10/20/17. And the transcript from his sentencing hearing

is not in the certified record. Lewis has thus arguably waived his challenge to

the discretionary aspects of sentencing.

       However, even assuming Lewis preserved this issue at sentencing, it

has no merit.2 See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super.

2009) (stating that where counsel files an Anders brief, this Court will review

discretionary aspects of sentencing claims that were not otherwise preserved).

       Lewis contends his sentence was unduly harsh. As Lewis concedes, the

court imposed a sentence in the standard range of the sentencing guidelines.

See Anders Brief, at 10. A standard range sentence is presumptively


____________________________________________


2 We note the Pa.R.A.P. 2119(f) statement in counsel’s brief does not present
any challenge to the sentence. It is merely a recitation of the guideline
calculations involved. Even in an Anders brief, counsel must present an issue
in his Rule 2119(f) statement while noting that the issue is frivolous.

                                           -4-
J-S35029-18


reasonable. See, e.g., Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa.

Super. 2006). Thus, to succeed on this claim, Lewis has to show that “the case

involves circumstances where the application of the guidelines would be

clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). That is simply not the

case here. Lewis ambushed a defenseless victim and broke her jaw. The

sentence imposed is in no way disproportionate to the crime committed.

      Additionally, the court had the benefit of a presentence investigation

report (“PSI”). Thus, the law presumes the court was aware of and weighed

relevant information regarding a defendant’s character along with mitigating

statutory factors. See Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa.

Super. 1992) (“It would be foolish, indeed, to take the position that if a court

is in possession of the facts, it will fail to apply them to the case at hand.”)

See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005)

(finding that where the sentencing court has a PSI “it is presumed that the

sentencing court was aware of the relevant information regarding defendant’s

character and weighed those considerations along with mitigating statutory

factors”) (internal quotation marks omitted).

      Lewis’s challenge to the discretionary aspects of his sentence is

meritless. Our independent review of the record reveals no other, non-

frivolous issues that he could raise on appeal.

      We affirm Lewis’s judgment of sentence and grant counsel’s petition to

withdraw.


                                     -5-
J-S35029-18


     Judgment of sentence affirmed. Petition to withdraw as counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2018




                                   -6-
