J-S49022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

MARY E. MARTELL

                            Appellant                  No. 1718 WDA 2016


         Appeal from the Judgment of Sentence Dated October 3, 2016
                  In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0002488-2016

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                             FILED AUGUST 25, 2017

        Appellant, Mary E. Martell, appeals from the judgment of sentence

following an open guilty plea and conviction for retail theft. 1      Appellant’s

counsel has filed a petition to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967). We affirm and grant counsel’s petition to withdraw.

        We state the facts as set forth in the affidavit of probable cause:

            On June 29, 2016, Appellant was viewed on live video
        surveillance at Gabriel Brothers retail store at 7200 Peach Street
        in Erie. The surveillance feed showed Appellant removing a shirt
        from the rack in the children’s section and placing the shirt
        inside her purse. Appellant was stopped by loss prevention
        [personnel] in the store but refused to accompany them to their
        office. Appellant then left in a white truck bearing Pennsylvania
        registration.   That truck was located by Pennsylvania State
        Trooper Francine Gibson, who conducted a traffic stop at the
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3929(a)(1).
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        intersection of Peach Street and Interchange Road. During the
        traffic stop, Appellant admitted to taking items from Gabriel
        Brothers and refusing to stop for loss prevention. Appellant had
        her purse with her, and it contained five children’s shirts and
        pairs of shorts with tags from Gabriel Brothers on them. The
        total value of the ten items stolen by Appellant was $56.92. The
        items were returned to Gabriel Brothers.

Police Aff. of Probable Cause, 6/30/16, at 1; see also N.T. Hr’g, 10/3/16, at

9-10.

        Appellant pleaded guilty to retail theft. The court sentenced Appellant

to one to two years’ imprisonment, to run consecutively to any previously

imposed sentence.2 N.T. Hr’g at 14. The trial court found Appellant to be

eligible for a reduced sentence under the Recidivist Risk Reduction Incentive

Program, 61 Pa.C.S. § 4504, thereby reducing Appellant’s minimum

sentence to nine months’ incarceration. Anders Brief at 4.

        Appellant filed a post-sentence motion requesting that her sentence be

served in a county jail or made concurrent to her other sentences. She did

not argue that the length of her sentence is excessive.        The trial court

denied that motion.       Appellant timely appealed and her counsel stated an

intent to file an Anders brief in lieu of a Rule 1925(b) Statement.




____________________________________________
2
  The record is unclear regarding any other sentences of Appellant. It
appears that Appellant had been sentenced in an unrelated case by the Erie
County Treatment Court. N.T. Hr’g at 10-11 (referencing that her sentence
would be revoked due to the instant conviction). The record does not state
whether that sentence was for probation.



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Appellant’s counsel has now filed a petition to withdraw and an Anders brief

with this Court. In the Anders brief, counsel raises one issue:

     Whether the appellant’s sentence is manifestly excessive, clearly
     unreasonable and inconsistent with the objectives of the
     Sentencing Code?

Anders Brief at 3.

     “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining

counsel’s request to withdraw.”   Commonwealth v. Wimbush, 951 A.2d

379, 382 (Pa. Super. 2008) (citation omitted).     We set forth the Anders

requirements in Commonwealth v. Orellana, 86 A.3d 877 (Pa. Super.

2014):

        Prior to withdrawing as counsel on a direct appeal under
     Anders, counsel must file a brief that meets the requirements
     established by our Supreme Court in Commonwealth v.
     Santiago, 978 A.2d 349 (Pa. 2009). The brief 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. Counsel also must provide a copy
     of the Anders brief to his client. Attending the brief must be a

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      letter that advises the client of his right to: “(1) retain new
      counsel to pursue the appeal; (2) proceed pro se on appeal; or
      (3) raise any points that the appellant deems worthy of the
      court[’]s attention in addition to the points raised by counsel in
      the Anders brief.”

Orellana, 86 A.3d at 879-80 (some citations omitted). If counsel complies

with these requirements, then “we will make a full examination of the

proceedings in the lower court and render an independent judgment [as to]

whether the appeal is in fact ‘frivolous.’” Id. at 882 n.7 (citation omitted).

Finally, “this Court must conduct an independent review of the record to

discern if there are any additional, non-frivolous issues overlooked by

counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (footnote and citation omitted).

      Here, counsel’s petition to withdraw and brief comply with the

technical requirements of Anders and Santiago. See Orellana, 86 A.3d at

879-80. The brief summarizes the procedural history and facts (although it

omits citations to the record), includes arguments that could support the

issue raised on appeal, and cites legal authority to support its conclusion

that the appeal is frivolous. Counsel also served Appellant with a copy of the

brief and petition to withdraw, and the petition advised Appellant of her right

to retain new counsel or proceed pro se to raise any points that she deems

worthy of this Court's attention.    We conclude that counsel has met the

requirements of Anders and Santiago, and will therefore address the issue

raised in the Anders brief.


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       Appellant’s appeal challenges a discretionary aspect of her sentence —

its length. A defendant “who has pled guilty may challenge the discretionary

aspects of [her] sentence as long as the defendant did not agree to a

negotiated sentence as part of a plea agreement.” Commonwealth v.

Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000) (citation omitted).

However, “[c]hallenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right.” Commonwealth v. Solomon,

151 A.3d 672, 676 (Pa. Super. 2016), appeal denied, 2017 WL 1414955

(Pa. 2017).    Under the Sentencing Code, such a challenge may be heard

only on a petition for allowance of an appeal to this Court, as to which our

exercise of jurisdiction is discretionary. 42 Pa. C.S. § 9781(b). Therefore,

“where an appellant challenges the discretionary aspects of a sentence, the

appeal    should   be   considered    a    petition   for   allowance   of   appeal.”

Commonwealth v. Haynes, 125 A.3d 800, 806–07 (Pa. Super. 2015),

appeal denied, 140 A.3d 12 (Pa. 2016) (citation omitted). We will exercise

our discretion to consider such a petition only if (1) the appellant has filed a

timely notice of appeal; (2) she has preserved the sentencing issue at the

time of sentencing or in a motion to reconsider and modify her sentence; (3)

she presents the issue in a properly framed statement in her brief under

Rule     2119(f)   of   the   Rules   of   Appellate    Procedure,      pursuant   to

Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); and (4)

in the words of Section 9781(b), “it appears that there is a substantial


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question that the sentence imposed is not appropriate under this chapter.”

See Haynes, 125 A.3d at 807; Commonwealth v. Zelinski, 573 A.2d 569,

574-75 (Pa. Super.), appeal denied, 593 A.2d 419 (Pa. 1990).

          Here, Appellant has satisfied the first and third of these requirements

by filing a timely appeal and including in her Anders brief a concise

statement of the reasons for which she seeks allowance of an appeal, in

compliance with Appellate Rule 2119(f).            See Anders Brief at 4-5.

However, Appellant has not satisfied the second requirement because she

did not preserve her sentencing challenge in the trial court.       In her post-

sentence motion, Appellant requested that her sentence be served in a

county jail or made concurrent to her other sentences, but she did not argue

that the length of her sentence was excessive. Because Appellant's current

sentencing claim was not set forth in, or fairly suggested by, her post-

sentence motion, it was not properly preserved.        See Commonwealth v.

Bromley, 862 A.2d 598, 603 (Pa. Super. 2004); see also Pa.R.A.P. 302.

          Even if Appellant had met the prerequisites for the exercise of our

jurisdiction to consider her sentencing issue, she would not be entitled to

relief.     Appellant frames her issue as presenting a “substantial question”

under the Sentencing Code because she argues that the trial court failed to

consider the factors set forth in Section 9721(b), which requires the

sentencing court to “follow the general principle that the sentence imposed

should call for confinement that is consistent with the protection of the


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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). Such an argument raises a substantial

question. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.

Super. 2014) (en banc) (“[a]rgument that the sentencing court failed to

consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question” (citation omitted)), appeal denied, 104 A.3d 1 (Pa.

2014). But Appellant’s argument is without merit.

      We will disturb a sentence only if the trial court abused its discretion in

imposing it. As we have frequently stated:

      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. 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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015) (citation omitted).        “A sentencing court

need not undertake a lengthy discourse for its reasons for imposing a

sentence or specifically reference the statute in question, but the record as a

whole must reflect the sentencing court's consideration of the facts of the

crime and character of the offender.”     Commonwealth v. Schutzues, 54

A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013)

(citation omitted).

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     Here, the trial court stated:

     This is the ninth time you’ve been convicted of retail theft, which
     I’d love to know how many times you pilfered from
     establishments when you never got caught.

     All these threats that we give to people for shoplifting and if you
     get caught again, this is what’s going to happen to you. If I let
     [you] go, that’s all meaningless . . . A message has to be sent to
     the community. First of all, if you do shoplift, especially from
     places like Gabriel’s or Walmart – you’ve probably been caught
     there a few times; right – you will get caught. Okay? And I can’t
     let you keep doing this anymore. It’s just not going to happen.

     All right, the sentence of this Court, ma’am, and this is a
     standard range sentence, is that you serve from one to two
     years in a state correctional facility. You will get – be given
     credit for your time served. I believe [you] would be RRRI
     eligible, unless there’s something else in [your] past record that
     would indicate that [you] wouldn’t be; but we’ll order that you
     engage in retail theft diversion program.

N.T. Hr’g at 12-14; see also Anders Brief at 8.         Thus, the trial court

considered Appellant’s character by referencing her prior history of retail

theft, and it considered her rehabilitative needs and the impact of her

actions on the community and public.       Therefore, the trial court properly

considered the factors set forth in Section 9721(b).     See Schutzues, 54

A.3d at 99.   In addition, we have reviewed the certified record consistent

with Flowers, 113 A.3d at 1250, and have discovered no additional

arguably meritorious issues.   Accordingly, the trial court did not abuse its

discretion when imposing Appellant’s sentence, and we therefore affirm the

judgment of sentence.

     Petition to withdraw granted. Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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