J-S22006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FLOYD WHEELER-MCLAUGHLIN                   :
                                               :
                       Appellant               :    No. 1875 MDA 2019

         Appeal from the Judgment of Sentence Entered October 2, 2019
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                        No(s): CP-35-CR-0000842-2019


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                       FILED: JUNE 8, 2020

        Appellant, Floyd Wheeler-McLaughlin, appeals from the judgment of

sentence entered on October 2, 2019, as made final by the denial of

Appellant’s post-sentence motion on October 10, 2019. On this direct appeal,

Appellant’s court-appointed counsel has filed both a petition for leave 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 has complied with the

procedural     requirements       necessary    to   withdraw.   Moreover,   after

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

wholly frivolous. We, therefore, grant counsel’s petition for leave to withdraw

and affirm Appellant’s judgment of sentence.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        On August 21, 2019, Appellant pleaded guilty to escape and possession

of a controlled substance.1 During the plea colloquy, Appellant admitted to

the following:

          On or about March 20[,] 2019[, Appellant] . . . did unlawfully
          remove himself from official detention and [] he did run from
          [a police officer] causing him to pursue [Appellant] . . .
          through the streets of Scranton and deploy his Taser several
          times.

                                           ...

          On or about the same date and time, [Appellant] did
          knowingly and intentionally possess a quantity of synthetic
          marijuana, [Appellant] not being registered under the active
          classes of persons able to do so.

N.T. Guilty Plea Hearing, 8/21/19, at 6-7.

        On October 2, 2019, the trial court sentenced Appellant to serve a term

of six to 18 months’ incarceration on the escape conviction and to serve a

consecutive term of six to 18 months’ incarceration on the possession

conviction, for an aggregate sentence of 12 to 36 months’ incarceration. N.T.

Sentencing Hearing, 10/2/19, at 6-7. Both sentences fall within the standard

range of the sentencing guidelines. See Appellant’s Brief at 7.

        On October 8, 2019, Appellant filed a timely post-sentence motion. In

relevant part, the motion declared that the trial court imposed an excessive

sentence, as the trial court:         “relied upon [Appellant’s] past [probation]

violations in fashioning the present sentences” and failed to consider certain


____________________________________________


1   18 Pa.C.S.A. § 5121(a) and 35 P.S. § 780-113(a)(16), respectively.

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mitigating circumstances, such as Appellant’s untreated mental health

problems and substance abuse addiction. Appellant’s Post-Sentence Motion,

10/8/19, at 5.

      The trial court denied Appellant’s post-sentence motion on October 10,

2019 and Appellant filed a timely notice of appeal. On appeal, Appellant’s

court-appointed counsel filed a petition for leave to withdraw and counsel

accompanied this petition with an Anders brief. The Anders brief raises one

claim:

         Whether the trial court imposed harsh and unreasonable
         individual sentences and an aggregate sentence, contrary to
         the fundamental norms underlying the sentencing process[?]

Appellant’s Brief at 4.

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

determine whether appointed counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

      To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.   First, counsel must “petition the court for

leave to withdraw stating that, after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous.”

Miller, 715 A.2d at 1207. 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;

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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.

Santiago, 978 A.2d at 361.

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

client and advise the client “of [the client’s] right to retain new counsel,

proceed pro se or raise any additional points worthy of this Court’s attention.”

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

      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; see also

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (holding that the Anders procedure requires this Court to review “the

entire record with consideration first of the issues raised by counsel. . . . [T]his

review does not require this Court to act as counsel or otherwise advocate on

behalf of a party. Rather, it requires us only to conduct a review of the record

to ascertain if[,] on its face, there are non-frivolous issues that counsel,

intentionally or not, missed or misstated. We need not analyze those issues

of arguable merit; just identify them, deny the motion to withdraw, and order

counsel to analyze them”).        It is only when all of the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw.

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      In the case at bar, counsel complied with all of the above procedural

obligations. We must, therefore, review the entire record and analyze whether

this appeal is, in fact, wholly frivolous.   Our review begins with the claim

Appellant raises in his brief.

      On appeal, Appellant claims that the trial court abused its discretion by

imposing a harsh and excessive sentence. Appellant’s Brief at 9. Appellant’s

claim on appeal is a challenge to the discretionary aspects of his sentence.

      “[S]entencing is a matter vested in the sound discretion of the

sentencing judge, whose judgment will not be disturbed absent an abuse of

discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.

2001). Moreover, pursuant to statute, 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 explained:

        [t]o 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. 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).

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




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      Here, Appellant filed a timely post-sentence motion and notice of appeal.

Further, Appellant’s post-sentence motion claimed that his sentence is

excessive because the trial court “relied upon [Appellant’s] past [probation]

violations in fashioning the present sentences” and failed to consider

Appellant’s untreated mental health problems and substance abuse addiction.

Appellant’s Post-Sentence Motion, 10/8/19, at 5. Thus, Appellant preserved

his current appellate claims. We will now determine whether either or both of

Appellant’s claims present a “substantial question that the sentence appealed

from is not appropriate under the Sentencing Code.” Cook, 941 A.2d at 11.

      Generally, to raise a substantial question, an appellant must “advance

a colorable argument that the trial judge’s actions were: (1) inconsistent with

a specific provision of the Sentencing Code; or (2) contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. McKiel,

629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748

A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.

2000).   Additionally, in determining whether an appellant has raised a

substantial question, we must limit our review to Appellant’s Rule 2119(f)

statement.    Goggins, 748 A.2d at 726.      This limitation ensures that our

inquiry remains “focus[ed] on the reasons for which the appeal is sought, in

contrast to the facts underlying the appeal, which are necessary only to decide

the appeal on the merits.” Id. at 727 (internal emphasis omitted).

      Appellant’s Rule 2119(f) statement contends that his sentence is

excessive because the trial court: “double counted his prior offenses when it

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noted his probation violations” and failed to consider his “history of drug

addiction and mental health problems.” Appellant’s Brief at 10. Both claims

present a substantial question, thus permitting our review of the claims. See

Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010)

(“[a]ppellant’s claim [that] the trial court relied on an improper factor raises

a substantial question permitting review”); Commonwealth v. Johnson,

125 A.3d 822, 826 (Pa. Super. 2015) (“an excessive sentence claim – in

conjunction with an assertion that the court failed to consider mitigating

factors – raises a substantial question”).2

       First, Appellant claims that the trial court improperly “double counted

his prior offenses when it noted his probation violations” during the sentencing

hearing. See Appellant’s Brief at 10. We have explained:

         sentencing is vested in the discretion of the trial court, and
         will not be disturbed absent a manifest abuse of that
         discretion. An abuse of discretion involves a sentence which
         was manifestly unreasonable, or which resulted from
         partiality, prejudice, bias or ill will. It is more than just an
         error in judgment.

Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009) (quotations

and citations omitted).

____________________________________________


2 We note that we have also “held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Eline, 940 A.2d 421, 435 (Pa.
Super. 2007) (quotations, citations, and corrections omitted); see also
Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa. Super. 2018)
(collecting cases). Nevertheless, in light of our conflicting precedent, we will
review the merits of Appellant’s discretionary aspects of sentencing claim.


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      Further,

         A sentence is invalid if the record discloses that the
         sentencing court may have relied in whole or in part upon an
         impermissible consideration. This is so because the court
         violates the defendant's right to due process if, in deciding
         upon the sentence, it considers unreliable information, or
         information affecting the court's impartiality, or information
         that it is otherwise unfair to hold against the defendant.

         Simply put, the evidence upon which a sentencing court relies
         must be accurate, and there must be evidentiary proof of the
         factor[] upon which the court relied.

Downing, 990 A.2d at 793 (quotations and citations omitted).

      During the sentencing hearing, the trial court remarked: “And you were

on probation and/or parole when this particular offense was committed. . . .

And you have a history of violating your previous sentences, which means that

you really weren’t doing well under supervision.” N.T. Sentencing Hearing,

10/2/19, at 6. Contrary to Appellant’s claim on appeal, the trial court did not

“double count[] his prior offenses when it noted his probation violations.” See

Appellant’s Brief at 10. To be sure, the trial court was merely observing that

Appellant’s history of violating the terms of his probation and parole reflected

poorly on his amenability to rehabilitation – and, as we have held, “[b]ecause

our law requires a sentencing court to consider the prior criminal record to

ascertain a defendant’s amenability to rehabilitation, we cannot fault [a] trial

court for doing so.”   See Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa.

Super. 2002).    Therefore, Appellant’s claim of error regarding this issue is

frivolous.



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      Next, Appellant claims that the trial court abused its discretion in failing

to consider the fact that he suffers from mental health problems and drug

addiction. This claim immediately fails because, during Appellant’s sentencing

hearing, the trial court expressly stated that it considered the pre-sentence

investigation report. N.T. Sentencing, 10/2/19, at 4. Given this fact, we must

“presume that the sentencing judge was aware of relevant information

regarding [Appellant’s] character and weighed those considerations along with

mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18

(Pa. 1988). Appellant’s claim of error is thus frivolous.

      We have independently considered the claims raised within Appellant’s

brief and we have determined that the claims are frivolous. In addition, 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.

      Petition for leave to withdraw appearance granted.           Judgment of

sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/08/2020


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