J-S15026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ANTHONY L. BILLINGER                    :
                                         :
                   Appellant             :   No. 1091 WDA 2018

       Appeal from the Judgment of Sentence Entered July 17, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                        CP-25-CR-0000463-2017


BEFORE:    GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 24, 2019

      Anthony L. Billinger (“Appellant”) appeals from the judgment of

sentence entered after he pled guilty to possession with intent to manufacture

or deliver a controlled substance, 35 P.S. § 780-113(a)(30), and possession

of a firearm prohibited, 18 Pa.C.S. § 6105(a)(1). Appellate counsel has filed

a petition for leave to withdraw her representation and a brief pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009), which govern withdrawal from

representation on direct appeal.   We grant counsel’s petition for leave to

withdraw and affirm.

      According to the criminal complaint filed in the underlying matter,

officers executed a search warrant at Appellant’s residence in Erie,

Pennsylvania, at 1:30 p.m. on January 3, 2017. During the search, officers


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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recovered significant quantities of cocaine, heroin, marijuana, and a loaded

semi-automatic handgun. Criminal Complaint, 1/3/17, at 2.

       Appellant entered a guilty plea to the above-noted charges on July 17,

2017, and the trial court sentenced him the same day to incarceration for an

aggregate period of eighty-seven to 174 months, consecutive to any other

sentence Appellant was serving.           N.T., 7/17/17, at 13.   Appellant filed a

motion to reconsider/modify his sentence, which the trial court denied. Motion

for Reconsideration-Modification of Sentence, 7/27/17; Order, 8/3/17.

Appellant did not file an appeal. Subsequently, Appellant filed a pro se motion

for collateral relief on July 5, 2018, seeking reinstatement of his direct appeal

rights, which the trial court granted on July 12, 2018. This appeal followed. 1

       Before we address any questions raised on appeal, we must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on direct

appeal. The procedural mandates are that counsel must:

       1) 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; 2) furnish a copy
       of the brief to the defendant; and 3) advise the defendant that he
       or she has the right to retain private counsel or raise additional
____________________________________________


1  Because appellate counsel filed a Statement of Intent to File an Anders
brief in lieu of a Pa.R.A.P. 1925(b) statement, the trial court did not file a
substantive opinion pursuant to Pa.R.A.P. 1925(a). Memorandum Opinion,
9/27/18. Similarly, the Commonwealth did not file a responsive brief.
Commonwealth Letter, 2/4/19.

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      arguments that the defendant deems worthy of the court's
      attention.

Id. at 1032 (citation omitted).

      In this case, those directives have been satisfied. Within the petition to

withdraw, counsel averred that she conducted a conscientious review of the

record and pertinent legal research. Following that review, counsel concluded

that the present appeal is frivolous. Anders Brief at 9. Counsel sent Appellant

a copy of the Anders brief and petition to withdraw, as well as a letter, a copy

of which is attached to the petition to withdraw. In the letter, counsel advised

Appellant that he could represent himself or that he could retain private

counsel. Appellant has not filed any additional documents with this Court.

Application to Withdraw, 1/11/19, at Exhibit 1.

      We now examine whether the Anders brief satisfies the Supreme

Court’s dictates in Santiago, which provide that:

      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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago.      The brief sets forth the

procedural history of this case, outlines pertinent case authority, and

discusses counsel’s conclusion that the appeal is frivolous. Anders Brief at 4,

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7, 9.    We thus conclude that counsel has met the procedural and briefing

requirements for withdrawal.

        Counsel has identified the following issue that Appellant believes entitles

him to relief: “Whether [Appellant’s] sentence is manifestly excessive, clearly

unreasonable and inconsistent with the objectives of the Sentencing Code?”

Anders Brief at 3. Specifically, Appellant argues that “the trial court abused

its discretion in sentencing Appellant to such a lengthy period of incarceration,

given the mitigating factors of his case” and his remorse. Id. at 7–8.

        “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).      Whether a particular issue constitutes a

substantial question about the appropriateness of a sentence is a question to

be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d

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808, 811 (Pa. Super. 2001). As to what constitutes a substantial question,

this   Court   does   not   accept   bald    assertions   of   sentencing   errors.

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An

appellant must articulate the reasons the sentencing court’s actions violated

the sentencing code. Id.

       Herein, Appellant has met the first three requirements of the four-part

test. Appellant brought an appropriate appeal, raised the challenge in a post-

sentence motion, and included in his appellate brief the necessary concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

       In his Rule 2119(f) statement, Appellant acknowledges that the trial

court sentenced him within the Sentencing Guidelines. Anders Brief at 5. He

argues, however, that the case involves circumstances where the application

of the Guidelines would be clearly unreasonable.          Id. (citing 42 Pa.C.S.

§ 9781(c)(2)). Appellant suggests that the trial court failed to consider his

rehabilitative needs, the gravity of the offenses, and the impact of the crimes

on the victims and community at large. Id. (citing 42 Pa.C.S. 9721(b)). This

Court has found a substantial question exists where there is an allegation that

the sentencing court failed to consider the factors set forth in 42 Pa.C.S.

§ 9721(b). See Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.


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2006) (concluding that the appellant raised a substantial question where it

was alleged that the trial court failed to properly consider the factors set forth

in 42 Pa.C.S. § 9721(b)).      Therefore, Appellant has raised a substantial

question. As such, we will review the merits of Appellant’s sentencing claim.

      Sentencing 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. Fullin, 892 A.2d at 847. In this context, an abuse of discretion

is not shown merely by an error in judgment.         Rather, an 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. Id.

      The sentencing judge has broad discretion in determining the proper

penalty, and this Court accords the sentencing court great deference because

the sentencing court is in the best position to view a defendant’s character,

displays of remorse, defiance, or indifference, and the overall effect and

nature of the crime.    Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (quotations and citations omitted).      When imposing a sentence, the

sentencing court must consider “the protection of the public, the gravity of

the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.”            42 Pa.C.S.

§ 9721(b). As we have stated, “a court is required to consider the particular

circumstances    of the   offense   and the     character   of the   defendant.”


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Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,

the court should refer to the defendant’s prior criminal record, his age,

personal characteristics and his potential for rehabilitation.” Id. Additionally,

“[o]ur Supreme Court has determined that where the trial court is informed

by a pre-sentence report, it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has   been    so   informed,     its   discretion   should    not    be    disturbed.”

Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009)

(citation omitted).

      Our review of the record reflects that, at the time of Appellant’s

sentencing, the trial court had received and reviewed a presentence report.

N.T., 7/17/17, at 12–13.        Further, the trial court heard argument from

Appellant's counsel, which focused upon Appellant’s rehabilitative potential,

remorse, and acceptance of responsibility. Id. at 6–7. The trial court then

heard Appellant’s allocution and the prosecutor’s position. Id. at 8–12. Prior

to announcing the judgment of sentence, the trial court referred to the

statements    of   counsel,    Appellant’s    statement,     and    the   presentence

investigation report, which detailed Appellant’s criminal history and the

seriousness of the instant crimes. Id. at 12–13.

      Upon review, we conclude that the trial court did not abuse its discretion

in imposing the instant sentence. The court had the benefit of a presentence

investigation report and considered the factors set forth in 42 Pa.C.S.


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§ 9721(b) in imposing the sentence. Accordingly, Appellant’s contrary claim

lacks merit.

      Finally, we have independently reviewed the record in order to

determine whether there are any non-frivolous issues present in this case that

Appellant may raise.   Commonwealth v. Yorgey, 188 A.3d 1190, 1198-

1199 (Pa. Super. 2018) (en banc).      Having concluded that there are no

meritorious issues, we grant Appellant’s counsel permission to withdraw, and

we affirm the judgment of sentence.

      Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019




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