J-S47034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellee

                  v.

KEVIN DANSER

                       Appellant                 No. 1611 MDA 2015


         Appeal from the Judgment of Sentence August 21, 2015
            In the Court of Common Pleas of Luzerne County
          Criminal Division at No(s): CP-40-CR-0000277-2015,
          CP-40-CR-0000770-2014, CP-40-CR-0000832-2015,
            CP-40-CR-0001773-2013, CP-40-0004284-2013,
                        CP-40-CR-0004292-2013


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                         FILED JUNE 14, 2016

     Kevin Danser appeals from the judgments of sentence imposed in the

Court of Common Pleas of Luzerne County after he pled guilty to several

offenses. Danser’s counsel also seeks to withdraw pursuant to the dictates

of Anders v. California, 386 U.S. 738 (1967), Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), and Commonwealth v. McClendon,

434 A.2d 1185 (Pa. 1981).     Upon review, we grant counsel’s petition to

withdraw and affirm Danser’s judgment of sentence based on the opinion of

the Honorable Michael T. Vough.
J-S47034-16



        On May 13, 2015, Danser pled guilty on six informations charging him

with theft by unlawful taking or disposition,1 receiving stolen property,2

criminal trespass,3 access device fraud4 and conspiracy.5

        On August 21, 2015, the court imposed an aggregate sentence of

incarceration of 41 to 82 months.              Each of the sentences was within the

standard range.

        Danser filed a timely pro se notice of appeal.                Following his

appointment by the trial court, counsel filed a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal asserting that the court failed to consider

Danser’s rehabilitative needs by not imposing a sentence of intermediate

punishment. The court filed its Rule 1925(a) opinion on November 5, 2015.

However, the trial record, including the trial court opinion, was not received

in this Court until February 5, 2016.

        Counsel filed an Anders brief and a motion to withdraw.6             “When

faced with a purported Anders brief, this Court may not review the merits of
____________________________________________


1
    18 Pa.C.S. § 3921(a).
2
    18 Pa.C.S. § 3925(a).
3
    18 Pa.C.S. § 3503(a)(1)(ii).
4
    18 Pa.C.S. § 4106(a)(1)(ii).
5
    18 Pa.C.S. § 903.
6
  The Anders brief was due on March 16, 2016. It was received in the
prothonotary’s office on March 17, 2016. “Briefs shall be deemed filed on
(Footnote Continued Next Page)


                                           -2-
J-S47034-16



the underlying issues without first passing on the request to withdraw.”

Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super. 2005).

Furthermore, counsel must comply with certain mandates when seeking to

withdraw pursuant to Anders, Santiago, and McClendon. These mandates

are not overly burdensome and have been summarized as follows:

          Direct appeal counsel seeking to withdraw under Anders
          must file a petition averring that, after a conscientious
          examination of the record, counsel finds the appeal to be
          wholly frivolous. Counsel must also file an Anders brief
          setting forth issues that might arguably support the appeal
          along with any other issues necessary for the effective
          appellate presentation thereof.

          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 either to comply with
          Anders or file an advocate’s brief on Appellant’s behalf).




                       _______________________
(Footnote Continued)

the date of mailing if first class, express, or priority United States Postal
Service mail is utilized.” Pa.R.A.P. 2185(a)(1). Here, the postal information
on the mailing envelope did not contain a date. Unfortunately, counsel was
unable to provide proof when the brief was mailed. In light of the fact that
counsel’s office is in Kingston, Luzerne County and the prothonotary’s office
is in Harrisburg, it is reasonable to assume that the brief was mailed on or
before March 16, 2016 since it was received on March 17, 2016.
Accordingly, we deem it timely filed.




                                            -3-
J-S47034-16



Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations

omitted).

      Here, counsel has provided the facts and procedural history of the

case, and avers that, after a thorough review of the record, he finds the

appeal to be wholly frivolous, and states his reasons for this conclusion.

Counsel provided a copy of the petition and Anders brief to Danser, advised

him of his right to retain new counsel, or proceed pro se. Accordingly, we

find counsel has met the requirements of Anders, McClendon and

Santiago.

      Once counsel has satisfied the above requirements, this Court

conducts its own review of the proceedings and renders an independent

judgment    as   to   whether   the   appeal   is,   in   fact,   wholly   frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

      In his Anders brief, the sole issue raised by counsel is whether the

court abused its discretion in denying his request for intermediate

punishment and for failing to consider his rehabilitative needs.

      Danser’s allegation is a challenge to the discretionary aspect of his

sentence, which is not appealable as of right.              Rather, an appellant

challenging the sentencing court’s discretion must invoke this Court’s

jurisdiction by satisfying a four-part test.    Commonwealth v. Prisk, 13

A.3d 526 (Pa. Super. 2011).

      We 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 preserved at

                                      -4-
J-S47034-16


      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. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

      Here, Danser filed a timely notice of appeal and has preserved his

claim by raising it in his statement of errors complained of on appeal.

Finally, Danser’s counsel has included in his Anders brief a statement

pursuant to Pa.R.A.P. 2119(f).

      Judicial review of the discretionary aspects of a sentence is granted

only upon a showing that there is a substantial question that the sentence

was inappropriate and contrary to the fundamental norms underlying the

Sentencing Code.     Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987). A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision in the Sentencing Code; or (2) contrary

to   the   fundamental   norms   which   underlie   the   sentencing   process.”

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en

banc).

      After our review of the record, we affirm based on Judge Vough’s

opinion, which correctly analyzes the relevant provisions of the Sentencing




                                    -5-
J-S47034-16



Code and concludes that Danser has failed to raise a substantial question. 7

We direct the parties to attach that decision in the event of further

proceedings in the matter.

       Judgment of sentence affirmed.            Petition to withdraw as counsel

granted.

       JENKINS, J., joins the memorandum.

       SHOGAN, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




____________________________________________


7
  We have conducted an independent review of the record and determine
there are no additional non-frivolous issues overlooked by counsel. See
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015).



                                           -6-
                                                                                                            Circulated 05/18/2016 03:07 PM


                                                      IN THE COURT OF COMMON PLEAS·
                          ' r
                                                            OF LUZERNE COUNTY
                    COMMONWEALTH OF PENNSYLVANIA

                                                                                        CRIMINAL DIVISION
                                v.
                                                                               ..
                    KEVIN DANSER                                               : NOS: 1773, 4284, 4292 OF 2013
                                                                               : NOS; 770 OF 2014 / 272. 832 OF 2015
                                                    QPINION P'QBSUA.NT TO RULE 1225Cru{l)
                    BY THE HONORABLE MICHAELT. VOUGH
                                                                                           '
                                This matter arises from six informetlons filed by the Luzerne County District
                    Attorney against the Defendant, Kevin Danser. On May 13, 2015, Defendant entered a

                    plea of g~llty on all si~ infonnations. On 1773 of 2013, Defendant pied guilty to theft by

                    unlawful taking or disposition, receiving stolon property and criminal conspiracy to
                                           .                                        .
                    commit theft by unlawful taking or disposition, On 4284 of 2013, Defendant plod guilty

                    to crlmlnal trespass. On 4292 of2013 Defendant pled.gullty to criminal conspiracy to

                    commit receiving stolen property. On 770 of 2014 Defendant pied guilty to theft by

                    unlawful taking or disposition and criminal conspiracy to commit theft by unlawful
                    taking or disposition. On 277 of2015, Defendant pled guilty to theft by unlawful taking

                    or disposition and access device fraud. Defendant also pled guilty to criminal conspiracy

                    to commit retail theft on information 832 of 2015.
                           .                                                                   .
           j,, ~:.      ·~.i~l:~tench1g took"place on August 21, 2015. Defendant was sentenced within the
· i ·: ·   ·t- f «l,ns•                        on ,ll charges and his aggregate sentence totaled forty-one to eighty-two

:, · ';. . '{'\>nt~1· . ~ :~ received credit for serving 145 days of lncarceretlon prior to sentencing.
r.
 ·,.. ,
           !~·"ij . i,IIP->~.,, . ·, ; ~ugust 31, 2015, a Motion to Modify Sentence was flied on behalf-of
                               ··~:..,J·       •

 } · :'' ·· <       .fi;.~~a~t.·. ~~.!he Motion, defense counsel alleged an abu~e of discretion           by this Court
              .·.
                    for falling to consider Defendant's rehabilitative needs and for denying -his request to be

                    .sentenced to intermediate punishment. Defendant then filed an untimely pro so Motton to
'·



                  Modify and. Reduce Sentence on September 3·, 2015.1 Defendant gave no reason to
                  modify or reduce his sentence In tho motion. BothMotions were denied by Orders dated
                  September 28, 2015;

                           Prior to the d~nial of the Motions to Modify Sentence, Defendant filed a pro se

                  notice of appeal to the Superior Court of Pennsylvania. Although the appeal was flied on

                  September 18, 2015, Def endant failed to serve this Court with a copy as required by                   ·

                  Pa.R.A.P. 906(a)(2). This Court became aware of the appeal upon reooipt of the docket
                  sheet from the Superior Court on September 30, 2015,
                                                                                            •   I


                           After learning of the appeal, an Order was issued on October 1, 2015 which

                  required that Defendant flle a. Concise Statement of Errors Complained of on Appeal

                  pursuant to Pa.R.A.P. 1925(b) within twenty-one days. On October 22, 2015, defense

                  counsel filed a Rule 1925(b) statement which alleged an abuse of discretion by this Court

                  in denying Defendant's request for a sentence of Intermediate punishment and for falllng

                  to consider his rehabilitative needs.

                                   There is no absolute right to appeal the discretionary aspects of a sentence,

                  ~ommonwcalth y. Mongon. 812 A.2d 617, 621 (Pa. 2002). An appellant must
                  demonstrate that there is a substantial question that the sentence is not appropriate under
     ----.. . . -he-sentenc1ng code. Commonwealth y, Boyer, 856 A.2d 149, 152 (Pa, Soper. 2004). A

                  substantial question exists whore appellant sets forth a plausible argument that the

                  sentence violates a particular provision of the sentencing code or is contrary to the

                  fundamental .norms underlying the sentencing scheme. Common}Yea.lth v. McNabb, 819
                  A.2d 54, 56 (Pa.Super, 2003). "The determination of what constitutes a substantial

                  question must be evaluated on a case-by-case besla," Qommonwealth v, Paul, 925 A,2d


                  IP11.R,Crlm.P. 720(A)( I) provides: 11Bxoopt as provided In paragraph, (C) and (D)1 a written pcst-aentence
                  motion shall be tiled no Inter thon to days ofter imposition ohontenco:11
825, 828 (Pa.Super, 2007).

        Defendant's Rulo l 925(b) statement sots· forth no such claim and no evidence

exists of record to support such a claim. Pursuant to section 972l(a) of the Pennsylvania

Sentencing Codo, the court is to consider one or more alternatives which may be imposed

consecutively or concurrently. These alternatives are the following:

               (1)     An order of probation.

               (2)     A determlnatlon of guilt without further penalty.

               (3)     Partial conflnement,

               (4)     Total confinement.

               (5)     A fine.

               (6)     .County Intermediate punlshment,

               (7) .   State intermediate punishment.

42 Pa.C.S.A. Section 972l(e.).

       Defendant could have been sentenced to County Intermediate punishment as
provided in Section 972l(a)(6). "In adopting (intennedlate punishment] as a sentencing
altematlve, 1[t]he Legislature's Intent was to give judges another sentencing option which

would lie between probation and lncarceratiou with respect to sentencing severity; to

provide a more appropriate form of punishment/treatment for certain types of'non-vlolent

offender~; to make the of.fender more accountable to the commumty; and to help reduce
the county jail overcrowding problem while maintaining public safety. 111 CommonweaUb,

y. Jurczak, 86 A,3d 265, 267 (Pa.Super, 2014) citing, Commonwealth v. Wijlie.ms, 941

A.2d 14, 24 (Pa.Super. 2008)(en bane). "Thus, thegrant or denial of a defendant's

request for [lntermcdlatc punlshment] is largely within the, sound discretion of the trial

court." Id,

               In addition, "an allegation that a sentencing court failed to consider or did

not adequately consider certain factors does not raise a substantial question that tho
 .   .   :

             sentence was inappropriate." Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545
             (Pa.Super, 1995)
                         .
                              quoting,' Commonwealth
                                            .
                                                     y. Ufrutla, 653 A.2d 706, 71 O (Pa.Super.
             1995). A claim that the trial court failed to consider the defendant's rehabilitative needs,
             age and educational background does not present a substantial question. Commonwealth
             y, Cannon, 954 A.2d    1222, 1228-29 (Pa.Super. 2008).

                     "When Imposing ft sentence, a court ls required to consider the particular ·

             circumstances of the offense and the character of the defendant." Commonwealth v,

             Griffin, 804 A.2d i, 10 (Pa.Super. 2002) appeal denied, 868 A.2d 1198 (Pn. 2005) cert.

             denied, 545 US. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). Hin particular, the court
             should refer to the defendant's prior criminal record, his age, personal characteristics and

             hls potential for rehabllltatlon." lg. "The law requires a sentencing court to consider the

             prior criminal record to ascertain a defendant's amenability to rehabilitation.". Jg.

                            Where pre-sentence reports exist, we shall continue to presume that
                            the sentencing judge was aware of relevant information regarding the
                            defendant's character and weighed those considerations along with
                            mitigating statutory factors. A pre-sentence report constitutes-the
                            record and speaks for itself, In order to dispel any lingering doubt
                            as to our intention of engaging In an effort of legal purification, we
                            state clearly that sentencers are under no compulsion to employ checkltsts
                            or any extended or systematic definitions of their punishment procedure,
                            Having been fully informed by the pre-sentence roport. the sentencing
                            court's discretion should not be disturbed.         [
             Commonwealth y, Q~yers, 546 A.2d 12, 18 (Pa. 1998). Pennsyf anla law views a
·-----------------------+----------~
             sentence as appropriate under the Sentencing Code when it is j'thin the standar.d range of

             the guidellnes, Qomroonwealth v, Mour)!, 992 A.2d 162, 171 ~Pr.Super. 2010), A

             sentence Imposed within the guidelines may be reversed only if tpplicatlon of the
             guidelines ls clearly unreasonable. ·commonwealth y. Macias, 91~8 A.2d 773. 777

             (Pa.Super, 2009); 42 Pa.C.S.A_' Section 978 l{c). Unreasonable re~s a decision that is

             either Irrational or not guided by sound Judgment.          o   e ,~t   . W ls, 926 A.2d

             957, 963 (Pa. 2007).
. ..,

                Before sentencing Defendant, this Court had an opportunity to review the pre-
                                :,

        sentence investigatlon report prepared by the Luzerne County Adult Probation

        Department and ccnslder the information contained therein. Defendant's rehabllltative

        needs,' capacity for rehabllltation and age were considered along wlth his drug and

        alcohol dependency issues. Defendant also had an extensive adult criminal history.

                With regard to tho cases currently on appeal, Defendant plcd guilty to ten offenses

        on six informations which occurred over a two year period, He received standard range
        sentences on each offense. Rather than give Defendant a volume discount. weexerclsed
        ou~· discretion and ran the sentences consecutively. Defendant's sentence is neither
        excessive nor unreasonable, The judgment of sentence Imposed by this Court on August

        211 2015 should be affirmed.


                                                        BY THE COURT:
        AfoueM~t( 6 · ).o/5                             ~)7{.£t..
        DATE.                                           MCHAELT.VOUOH, J.



        Luzerne County District Attorney's Office
        Paul Galante, Esquire
