J-S35043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANDRE MICHAEL JONES,

                            Appellant                No. 2959 EDA 2014


            Appeal from the Judgment of Sentence August 15, 2014
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0006645-2012


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 23, 2015

        Appellant, Andre Michael Jones, appeals from the judgment of

sentence imposed on August 15, 2014, following his open guilty plea to rape

of a child and involuntary deviant sexual intercourse (IDSI) with a child.1

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

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), alleging that the appeal is wholly frivolous. We affirm

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

        On January 8, 2013, the Commonwealth filed a criminal information

charging Appellant with ten counts of rape of a child, ten counts of statutory
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3121(c) and 3123(b), respectively.
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sexual assault, thirty counts of IDSI, thirty counts of aggravated indecent

assault, and one count each of endangering the welfare of a child and

corruption of minors. (See Information, 1/08/13, at unnumbered pages 1-

11).    The charges arose from Appellant’s over five-year sexual abuse,

beginning when she was nine years old, of his stepdaughter. (See id.; see

also Trial Court Opinion, 12/08/14, at 1-2).

       On March 12, 2014, the date scheduled for trial, after discussion with

counsel, Appellant entered an open guilty plea to one count of rape of a child

and one count of IDSI. (See N.T. Guilty Plea, 3/12/14, at 3-6). In return

for Appellant’s guilty plea, the Commonwealth agreed not to seek any

mandatory minimum sentences and to nol pros the remaining counts at the

time of sentencing. (See id. at 6-7, 20). Appellant signed both a written

guilty plea colloquy and a special addendum to the guilty plea for sex

offenders. (See Written Guilty Plea, 3/12/14, at 9; Addendum to Guilty Plea

Colloquy, 3/12/14, at unnumbered page 7).

       At the plea hearing, Appellant expressed his satisfaction with counsel’s

stewardship and stated that he was pleading guilty of his own free will.

(See N.T. Guilty Plea, 3/12/14, at 9, 14, 19). He acknowledged that he had

signed the written plea colloquy and addendum, and agreed that the plea

was an open guilty plea. (See id. at 8-10, 19). Appellant further agreed

that he was guilty of the charges, and that he understood the possible

maximum sentencing exposure. (See id. at 13, 16).


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      At the sentencing hearing, on August 15, 2014, following a review of

the Pre-Sentence Investigation Report (PSI), the victim read a letter to the

court and the Commonwealth presented a victim impact statement from the

victim’s mother.      (See N.T. Sentencing, 8/15/14, at 3, 6-12).           Appellant

presented the testimony of a friend, one of his sisters, his brother, and

submitted a letter from a second sister. (See id. at 12-23). Appellant also

testified on his own behalf.       (See id. at 24).        The trial court imposed a

sentence in the standard range of not less than twenty nor more than forty

years of incarceration on the charge of rape of a child. (See id. at 41). On

the charge of IDSI, the trial court sentenced Appellant to ten years of

probation; Appellant was to serve it consecutively to the sentence for rape of

a child. (See id.).

      On August 22, 2014, Appellant filed a motion for reconsideration of

sentence   claiming      that,    during     its   argument    at   sentencing,    the

Commonwealth “made references to numerous allegations regarding the

underlying crimes that were [not] specifically admitted to by [Appellant] at

his guilty plea. . . .” (Motion for Reconsideration of Sentence, 8/22/14, at

unnumbered     pages      1-2).    The     trial   court   denied   the   motion   for




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reconsideration on September 15, 2014. (See Order, 9/15/14, at 1). The

instant, timely appeal followed.2

       On appeal, the Anders brief raises the following questions for our

review:

             Was Appellant’s guilty plea to rape of a child and IDSI with
       a child not knowingly, intelligently, and voluntarily made as a
       result of the ineffective representation of his trial counsel?

             Did the trial court abuse its discretion when it sentenced
       Appellant to a term of twenty (20) to forty (40) years in prison
       for the offence of rape of a child?

(Anders Brief, at 5).

       Appellant’s counsel has petitioned for permission to withdraw and has

submitted an Anders brief, which is procedurally proper for counsel seeking

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed

counsel who seeks to withdraw from representing an appellant on direct

appeal on the basis that the appeal is frivolous 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.

____________________________________________


2
  Appellant has complied with all the requirements of Pa.R.A.P. 1925(b).
(See Concise Statement of Errors Complained of on Appeal, 10/28/14, at
unnumbered pages 1-5). The trial court filed an opinion on December 8,
2014. See Pa.R.A.P. 1925(a).



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Santiago, supra at 361. When we receive an Anders brief, we first rule on

the petition to withdraw and then review the merits of the underlying issues.

See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).

In addition, “[p]art and parcel of Anders is our Court’s duty to review the

record to insure no issues of arguable merit have been missed or misstated.”

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

      In the instant matter, counsel has substantially complied with all the

requirements of Anders and Santiago. Specifically, he has petitioned this

Court to withdraw because “[t]here [are] no non-frivolous issues to be

addressed[.]” (Petition for Leave of Court to Withdraw as Appellate Counsel,

3/15/15, at unnumbered page 3). In addition, after his review of the record,

counsel filed a brief with this Court that provides a summary of the

procedural history and facts with citations to the record, refers to any facts

or legal theories that arguably support the appeal, and explains why he

believes the appeal is frivolous. (See Anders Brief, at 6-32). Lastly, he has

attached, as an exhibit to his petition to withdraw, a copy of the letter sent

to Appellant giving notice of his rights, and including a copy of the Anders

brief and the petition.   (See Petition for Leave of Court to Withdraw as

Appellate   Counsel,   3/15/15,   at   unnumbered     pages   5-6);   see   also

Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 2005).

Appellant has not filed a response.          Because counsel has substantially

complied with the dictates of Anders, Santiago, and Millisock, we will


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examine the issues set forth in the Anders brief that counsel believes have

arguable merit. See Garang, supra at 240-41.

       The Anders brief first alleges that Appellant’s guilty plea was not

knowing, intelligent, and voluntary.           Specifically, the Anders brief claims

that Appellant received ineffective assistance of plea counsel who assured

him that he would receive a lesser sentence.              (See Anders Brief, at 21).

However, this claim is premature.

       As counsel acknowledges in the Anders brief, (see Anders Brief, at

22), Appellant must raise claims of ineffective assistance of counsel on

collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

2013). Accordingly, we dismiss this claim without prejudice for Appellant to

seek collateral review under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, in accordance with the Pennsylvania Supreme

Court’s opinion in Commonwealth v. Grant, 813 A.2d 726, 737 (Pa. 2002).

See Holmes, supra at 576.

       The Anders brief next challenges the discretionary aspects of

Appellant’s sentence.3 (See Anders Brief, at 25-32). The right to appeal

the   discretionary     aspects     of   a     sentence   is   not   absolute.   See
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3
  We note that Appellant preserved his discretionary aspects of sentence
claim by filing timely post-sentence motions for reconsideration of sentence.
(See Motion for Reconsideration of Sentence, 8/22/14, at unnumbered
pages 1-2); see also McAfee, infra at 275.




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Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), appeal

denied, 860 A.2d 122 (Pa. 2004).             When an appellant challenges the

discretionary aspects of the sentence imposed, he must present “a

substantial   question    as    to   the   appropriateness   of   the   sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).     An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to   the    fundamental        norms   underlying    the     sentencing    scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we have

found that a substantial question exists. See Commonwealth v. Goggins,

748 A.2d 721, 727 (Pa. Super. 2000), appeal denied, 759 A.2d 920 (Pa.

2000).     “Our inquiry must focus 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. (emphases in original).

      Here, counsel has included a Rule 2119(f) statement in the Anders

brief. (See Anders Brief, at 19-20). It states that the trial court failed to

consider mitigating circumstances such as Appellant pleading guilty to spare

the victim from having to testify and the strong family support displayed at

the sentencing hearing. (See id.). It also claims that, at sentencing, the


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Commonwealth improperly argued “facts relating to cases for which he was

not convicted in arguing for a sentence at the top of the standard range . . .

.” (Id. at 20). However, in his Rule 2119(f) statement, the Anders brief

concedes that Appellant’s sentence was in the standard range of the

Sentencing Guidelines. (See id. at 19). It also acknowledges that the trial

court had the benefit of a PSI, and that such sentences “are presumed to be

reasonable.” (Id. at 31); see also Commonwealth v. Moury, 992 A.2d

162, 171 (Pa. Super. 2010).

       Initially, we hold that Appellant waived his claim that the sentencing

court did not properly consider mitigating circumstances. Appellant did not

raise this claim in his post-sentence motion, in which he only raised the

issue that the Commonwealth “made references to numerous allegations

regarding the underlying crimes that were [not] specifically admitted to by

[Appellant] at his guilty plea. . . .” (Motion for Reconsideration of Sentence,

8/22/14, at unnumbered pages 1-2).             An appellant waives any discretionary

aspects of sentence issue not raised in a post-sentence motion; further, an

appellant cannot raise an issue for the first time on appeal. 4                 See

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4
  We note that Appellant did raise the issue regarding the failure to consider
mitigating circumstances in his Rule 1925(b) statement. (See Concise
Statement of Errors Complained of on Appeal, 10/28/14, at unnumbered
pages 1-5). However, an appellant cannot raise issues for the first time in a
Rule 1925(b) statement. See Commonwealth v. Coleman, 19 A.3d 1111,
1118 (Pa. Super. 2011) (issues raised for first time in Rule 1925(b)
statement are waived).
(Footnote Continued Next Page)


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Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003), appeal

denied, 831 A.2d 599 (Pa. 2003) (finding claim sentencing court did not put

sufficient reasons to justify sentence on record waived where issue was not

raised    in   post-sentence          motion);    see   also   Pa.R.A.P.   302(a);

Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007),

appeal denied, 956 A.2d 432 (Pa. 2008) (new legal theories cannot be raised

for first time on appeal). Thus, Appellant did not preserve this claim for our

review and we deem it waived.5

      The Anders brief also alleges that the trial court improperly allowed

the Commonwealth to present evidence of uncharged crimes. (See Anders

Brief, at 28). However, as it acknowledges, (see id.), this Court has long

held that such a claim does not raise a substantial question.                 See

Commonwealth v. Frank, 577 A.2d 609, 622 (Pa. Super. 1990), appeal
                       _______________________
(Footnote Continued)


5
  Even if Appellant had preserved the claim, it is well settled that a claim
“that a sentencing court failed to consider or did not adequately consider
certain factors does not raise a substantial question that the sentence was
inappropriate.” Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.
Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009) (citation omitted).
Further, “[w]here the sentencing court had the benefit of a presentence
investigation report (‘PSI’), we can assume the sentencing court was aware
of relevant information regarding the defendant’s character and weighed
those     considerations    along    with    mitigating   statutory    factors.”
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013), appeal
denied, 76 A.3d 538 (Pa. 2013) (quotation marks and citations omitted).
Thus, Appellant’s claim that the sentencing court abused its discretion by
failing to consider mitigating factors does not present a substantial question.
Had Appellant preserved the claim, we would have declined to review the
issue.



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denied, 584 A.2d 312 (Pa. 1990) (reaffirming judge may consider uncharged

criminal activity in determining appropriate sentence; claim did not raise

substantial question).

      Moreover, even if we were to find that the claim raised a substantial

question, we would find the claim waived. The Anders brief fails to specify

which arguments made by the Commonwealth were allegedly improper,

does not to cite to the record, and neglects to point to any evidence that the

trial court relied upon any uncharged crimes in imposing sentence.      (See

Anders Brief, at 28-29).    We note that it is Appellant’s responsibility to

develop arguments in his brief; where he has not done so we will find the

claim waived. See In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012), appeal

denied, 56 A.3d 398 (Pa. 2012).

      Appellant’s issues do not merit relief.        Further, this Court has

conducted an independent review of the record as required by Anders and

Santiago and finds that no non-frivolous issues exist.

      Judgment of sentence affirmed.         Petition to withdraw as counsel

granted.

      Judges Mundy and Olson concur in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




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