J-S77041-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    Appellee                :
                                            :
                   v.                       :
                                            :
JONATHAN DANIEL INGRAM,                     :
                                            :
                    Appellant               :    No. 2000 EDA 2014


       Appeal from the Judgment of Sentence Entered June 10, 2014,
             in the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0001698-2012

BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED FEBRUARY 06, 2015

      Jonathan Daniel Ingram (Appellant) appeals from the judgment of

sentence entered after a jury found him guilty of two counts each of

aggravated assault, burglary, and possessing an instrument of crime.            In

addition,   Appellant’s   counsel   seeks   to   withdraw     from   representation

pursuant    to   Anders     v.   California,     386   U.S.    738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

affirm the judgment of sentence and grant counsel’s application to withdraw.

      The trial court summarized the facts of this case as follows.

            The charges arose from a December 24, 2011 home
      invasion that occurred at about 2:00 a.m. in Upper Darby,
      Delaware County. [Appellant] entered a home occupied by
      Jennifer Hoban, John Miller, and Ms. Hoban’s children. Ms.
      Hoban awoke to noise and when she went from her bedroom
      into the upstairs hall she saw [Appellant], a man she did not
      know, holding two knives. [Appellant] attacked Ms. Hoban and


* Retired Senior Judge assigned to the Superior Court.
J-S77041-14


      stabbed her several times before she chased him from the
      house. She suffered, inter alia, serious wounds to her abdomen
      and emergency surgery was undertaken after she was
      transported to the University of Pennsylvania Hospital.

Trial Court Opinion, 8/4/2014, at 1-2.

      Appellant was charged with numerous crimes related to this incident,

and   on     February   7,   2013,   a   jury   found   Appellant   guilty   of   the

aforementioned crimes.       Appellant was subsequently sentenced on March

26, 2013 to an aggregate term of 14 to 28 years’ incarceration to be

followed by 14 years of probation.1 Appellant timely appealed, challenging

the sufficiency of the evidence to support his convictions.

      While that appeal was pending, the trial court sua sponte vacated

Appellant’s original sentence without holding a hearing or providing notice to

Appellant.     On September 6, 2013, Appellant was re-sentenced to an

aggregate term of 15 ¼ to 30 ½ years’ incarceration to be followed by 14

years of probation.2 Appellant timely appealed challenging the legality of his

new sentence. The appeals were consolidated, and on April 1, 2014, a panel

of this Court affirmed Appellant’s convictions with respect to the sufficiency

of the evidence, but vacated his sentence because the trial “court erred in


1
  Notably, that sentence included a term of 10 to 20 years’ incarceration,
followed by 8 years’ probation, for one of the counts of aggravated assault.
2
  The statutory maximum sentence for aggravated assault is 20 years’
incarceration. Thus, Appellant’s original sentence for aggravated assault
exceeded the statutory maximum, and was therefore an illegal sentence.
The amended sentence included 10 to 20 years’ incarceration for aggravated
assault, and no probation tail for that conviction.


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modifying the sentence without holding a hearing or providing notice to

[Appellant] or his attorney.” Commonwealth v. Ingram, 100 A.3d 518

(Pa. Super. 2014) (unpublished memorandum at 15), consolidated with

Commonwealth v. Ingram 102 A.3d 518 (Pa. Super. 2014) (unpublished

memorandum). Thus, this Court remanded the case for re-sentencing.

      On June 10, 2014, the trial court sentenced Appellant to an aggregate

term of 15¼ to 30½ years’ incarceration to be followed by 14 years of

probation.   That sentence included 10 to 20 years’ incarceration for one

count of aggravated assault, and a consecutive 4 to 8 years’ incarceration

for the other count of aggravated assault.      The sentence also included a

consecutive term of 15 to 30 months’ incarceration for one of the burglary

convictions, as well as a 14-year probationary tail.

      Appellant timely filed a notice of appeal.   On July 31, 2014, counsel

filed a statement, pursuant to Pa.R.A.P. 1925(c)(4), of his intent to withdraw

his representation of Appellant.     The trial court then filed a Pa.R.A.P.

1925(a) opinion.

      As a preliminary matter, we address counsel’s application to withdraw

before reaching the merits of the issues raised in the brief. 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 brief, this Court may not review the merits of the

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



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     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). By contrast, if counsel’s
     petition and brief satisfy Anders, we will then undertake our
     own review of the appeal to determine if it is wholly frivolous. If
     the appeal is frivolous, we will grant the withdrawal petition and
     affirm the judgment of sentence. However, if there are non-
     frivolous issues, we will deny the petition and remand for the
     filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has expounded further upon the

requirements of Anders:

     in the Anders brief that accompanies court-appointed counsel’s
     petition to withdraw, counsel must: (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.



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        Based upon our examination of counsel’s petition to withdraw and

Anders      brief,   we   conclude   that   counsel   has   satisfied   the   above

requirements.3       “We, therefore, turn to the issue presented in counsel’s

Anders brief to make an independent judgment as to whether the appeal is,

in fact, wholly frivolous.” Commonwealth v. Martuscelli, 54 A.3d 940,

947 (Pa. Super. 2012).

        In his brief, Appellant’s counsel states one issue that might arguably

support an appeal: “Whether the sentence imposed upon [Appellant] was

harsh and excessive under the circumstances?” Anders Brief at 3.

        Appellant’s claim challenges the discretionary aspects of his 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)

(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. Commonwealth v.


3
    Appellant has not responded to counsel’s application to withdraw.



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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
          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 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)).

      “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)).

      Instantly, Appellant has met the first prong of this test by timely filing

a notice of appeal. However, Appellant has failed to preserve properly his



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

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

Anders brief does not contain a Rule 2119(f) statement, and the

Commonwealth has objected to its absence.           Thus, Appellant’s claim is

waived. See Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa.

Super. 2004) (“Where an appellant fails to comply with Pa.R.A.P. 2119(f)

and the Commonwealth objects, the issue is waived for purposes of

review.”).

      Even if Appellant had preserved the issue,4 he would still not be

entitled to relief.   In support of his claim, Appellant cites several so-called

mitigating factors present in this case: 1) that the victim has made a

complete recovery; 2) that Appellant was 24 years old at the time of his

arrest and had not committed any crimes as an adult; and 3) that Appellant

had a difficult childhood and 4) that Appellant is the father of three children

and was concerned about his responsibilities to them. Anders Brief at 7-8.

However, an argument that the trial court did not consider adequately

mitigating sentencing factors does not raise a substantial question.       See

Commonwealth v. Marts, 889              A.2d 608, 615      (Pa. Super. 2005)




4
  See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(citing Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super.
2001) (explaining that despite waiver, Anders requires examination of the
merits of the issue appellant seeks to raise)).



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(explaining that a claim that the trial court did not consider adequately

mitigating factors does not raise a substantial question).

       For the above reasons, we agree with counsel that this appeal is

wholly frivolous.         Thus, we affirm the judgment of sentence and grant

counsel’s application to withdraw.

       Judgment of sentence affirmed. Application to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/6/2015




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