J-S53035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                  v.

VICTOR A. APONTE, JR.

                         Appellant               No. 167 MDA 2016


        Appeal from the Judgment of Sentence December 22, 2015
     in the Court of Common Pleas of Berks County Criminal Division
                    at No(s):CP-06-CR-0005964-2014

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                  v.

VICTOR A. APONTE, JR.

                         Appellant               No. 168 MDA 2016


        Appeal from the Judgment of Sentence December 22, 2015
     in the Court of Common Pleas of Berks County Criminal Division
                    at No(s):CP-06-CR-0005965-2014

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                  v.

VICTOR A. APONTE, JR.

                         Appellant               No. 169 MDA 2016


        Appeal from the Judgment of Sentence December 22, 2015
     in the Court of Common Pleas of Berks County Criminal Division
                    at No(s):CP-06-CR-0005966-2014
J-S53035-16


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

VICTOR A. APONTE, JR.

                               Appellant               No. 170 MDA 2016


           Appeal from the Judgment of Sentence December 22, 2015
        in the Court of Common Pleas of Berks County Criminal Division
                       at No(s):CP-06-CR-0005968-2014

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

VICTOR A. APONTE, JR.

                               Appellant               No. 171 MDA 2016


           Appeal from the Judgment of Sentence December 22, 2015
        in the Court of Common Pleas of Berks County Criminal Division
                       at No(s):CP-06-CR-0005971-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED SEPTEMBER 09, 2016

        Appellant, Victor A. Aponte, Jr., appeals from the judgment of

sentence entered in the Berks County Court of Common Pleas after he

pleaded guilty to four counts of delivering a controlled substance and one

count of theft graded as a felony of the third degree.1 Appellant’s counsel

has     filed   a   petition   to   withdraw   from   representation   and   an

*
    Former Justice specially assigned to the Superior Court.
1
    See 18 Pa.C.S. §§ 3903(a.1), 3921(a); 35 P.S. § 780-113(a)(30).




                                       -2-
J-S53035-16


Anders/Santiago2 brief. We deny the petition to withdraw and remand this

case with instructions.

      The Commonwealth recited the factual bases of Appellant’s pleas at

the December 22, 2015 guilty plea hearing, and the following exchanges

with Appellant occurred:

         [Commonwealth:]         By   pleading    guilty,   regarding
         Information 5965 of 2014, do you admit on or about
         various dates and times between June 23rd, 2014 and
         June 30th, 2014 you were at the Silk Mill Apartment here
         in Berks County, Pennsylvania, you stole copper as well as
         air-conditioning coils from the Northeast Middle School and
         sold that without license or authorization to do so?

         [Appellant:] Yes.

         [Commonwealth:] Regarding Information 5964 of 2014, do
         you admit on or about September 18th, 2014, you
         delivered .34 grams of heroin, a Schedule I controlled
         substance, to an undercover police officer in the 800 block
         of Penn Street, Reading, Berks County, Pennsylvania,
         without a license or without authorization to do so?

         [Appellant:] Yes.

         [Commonwealth:] Regarding Information 5966 of 2014, do
         you admit on or about October 14, 2014 in the 800 block
         of Penn Street, Reading, Berks County, Pennsylvania, you
         delivered 0.2 grams of heroin[,] a Schedule I controlled
         substance, to an undercover police officer without license
         or authorization to do so?

         [Appellant:] Yes.



2
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); see also Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).



                                    -3-
J-S53035-16


         [Commonwealth:] Regarding Information 5968 of 2014, do
         you admit on or about September 2nd, 2014, in the 800
         block    of   Penn    Street,   Reading, Berks    County,
         Pennsylvania, you delivered .23 grams of heroin, Schedule
         I controlled substance, to an undercover officer without
         license or authorization to do so?

         [Appellant:] Yes.

         [Commonwealth] Regarding Information 5971 of 2014, do
         you admit on or about October 28th, 2014, you delivered
         approximately 2.1 grams of heroin[,] a Schedule I
         controlled substance, to an undercover police officer
         without license or authorization to do so?

         [Appellant:] Yes.

N.T. Guilty Plea & Sentence H’rg, 12/22/15, at 5-7.     The Commonwealth

agreed to dismiss related charges in each information, but there was no

agreement as to sentencing.

      The trial court accepted Appellant’s guilty pleas and immediately

proceeded to sentencing with the benefit of a presentence investigation

report. The court ordered Appellant to serve four concurrent terms of two to

five years’ imprisonment for each drug delivery. The court also sentenced

Appellant to consecutive terms of one to two years’ imprisonment and five

years’ probation for the theft. The aggregate sentence was three to seven

years’ imprisonment plus five years’ probation. Additionally, the court

ordered $31,000 in restitution for the theft.




                                     -4-
J-S53035-16


      On December 29, 2015, Appellant, through counsel, filed timely post-

sentence motions to withdraw his guilty pleas and modify his sentence. 3 The

trial court denied the counseled motions on December 30, 2016. Appellant

timely appealed the conviction at each docket number, and counsel timely

filed Pa.R.A.P. 1925(c)(4)4 statements. This Court consolidated the appeals.

      Appellant’s counsel has petitioned to withdraw and submitted an

Anders/Santiago brief identifying two questions, which we have reordered

as follows:

          Whether the sentencing court abused its discretion as the
          aggregate sentence imposed, three (3) to seven (7) years
          of incarceration followed by five (5) years of probation,
          was excessive and unreasonable, not in accordance with
          the applicable statutory requirements and without
          articulated reasons[?]

          Whether the trial court erred by denying the [Appellant’s]
          Motion to Withdraw his Guilty Pleas where his pleas were
          involuntarily, unknowingly, or unintelligently entered[?]

Anders/Santiago Brief at 10. Appellant has not filed a response.

      “[T]his Court may not review the merits of the underlying issues

without   first   passing   on   the   request   to   withdraw”   by   counsel.

3
 That same day, Appellant mailed to the trial court a pro se post-sentence
motion indicating his counsel was ineffective and induced him to plead
guilty. The trial court filed the pro se motion and forwarded it to counsel.
See Pa.R.Crim.P. 576(A)(5). Appellant was represented by counsel from the
Public Defender’s Office, which has continued to represent Appellant in this
appeal.
4
  See Pa.R.A.P. 1925(c)(4) (“In a criminal case, counsel may file of record
and serve on the judge a statement of intent to file an Anders/McClendon
brief in lieu of filing a Statement.”).



                                       -5-
J-S53035-16


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

omitted).

         [T]he three requirements that counsel must meet before
         he or she is permitted to withdraw from representation
         [are] as follows:

            First, counsel must petition the court for leave to
            withdraw and state that after making a conscientious
            examination of the record, he has determined that
            the appeal is frivolous; second, he must file a brief
            referring to any issues in the record of arguable
            merit; and third, he must furnish a copy of the brief
            to the defendant and advise him of his right to retain
            new counsel or to himself raise any additional points
            he deems worthy of the Superior Court’s attention.

Id. (citations and footnote omitted).

      Additionally, Santiago requires 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.

Santiago, 978 A.2d at 361.

         [I]n Pennsylvania, when counsel meets his or her
         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.”

Id. at 355 n.5 (citations omitted).     “Wholly frivolous” means “the appeal

lacks any basis in law or fact.” Id. at 356 (citation omitted).


                                      -6-
J-S53035-16


         It should be emphasized that lack of merit in an appeal is
         not the legal equivalent of frivolity. Anders appears to
         rest narrowly on the distinction between complete frivolity
         and absence of merit. The latter is not enough to support
         either a request by counsel to withdraw, nor the granting
         of such a request by the court.

Commonwealth v. Kearns, 896 A.2d 640, 647 (Pa. Super. 2006) (citations

and quotation marks omitted).

      Appellant’s counsel has complied with the procedural requirements for

seeking leave to withdraw. Therefore, we proceed to review her assessment

that the appeal is frivolous. See Santiago, 978 A.2d at 355 n.5.

      Appellant’s counsel first discusses Appellant’s claim that the trial

court’s sentence was excessive.     Counsel has included a Pa.R.A.P. 2119(f)

statement in her Anders/Santiago brief.      According to counsel, Appellant

“asserts that the trial court’s aggregate sentence of three (3) to seven (7)

years incarceration, followed by five (5) years of probation was manifestly

excessive, clearly unreasonable, and contrary to the fundamental norms

underlying the Sentencing Code.” Anders/Santiago Brief at 15. He would

further argue that the trial court failed to consider mitigating circumstances

and did not adequately explain its sentence.    Id. at 21.   Counsel believes

Appellant’s arguments could raise a substantial question, but concludes they

are frivolous because the individual sentences were within the standard

range suggested by the Sentencing Guidelines and the trial court set forth

an adequate statement for the reasons for its sentence. Id. at 15, 22. We

conclude this issue is frivolous.


                                     -7-
J-S53035-16


     Appellant’s counsel has preserved Appellant’s intended sentencing

challenges by filing a timely post-sentence motion for modification, taking a

timely appeal, and including in her brief a Rule 2119(f) statement.       See

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). Thus,

we proceed to counsel’s assertion that Appellant could raise a substantial

question.

     It is well settled that

         the Rule 2119(f) statement must specify where the
         sentence falls in relation to the sentencing guidelines and
         what particular provision of the Code is violated (e.g., the
         sentence is outside the guidelines and the court did not
         offer any reasons either on the record or in writing, or
         double-counted factors already considered). Similarly, the
         Rule 2119(f) statement must specify what fundamental
         norm the sentence violates and the manner in which it
         violates that norm . . . .

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).   “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.

     Generally, a challenge to the trial court’s discretion to impose

consecutive   sentences        does   not   pose   a   substantial   question.

Commonwealth v. Mastromarino, 2 A.3d 581, 586-87 (Pa. Super. 2010).

         In fact, this Court has recognized the imposition of
         consecutive, rather than concurrent, sentences may raise a
         substantial question in only the most extreme
         circumstances, such as where the aggregate sentence is
         unduly harsh, considering the nature of the crimes and the
         length of imprisonment. That is in our view, the key to


                                      -8-
J-S53035-16


        resolving the preliminary substantial question inquiry is
        whether the decision to sentence consecutively raises the
        aggregate sentence to, what appears upon its face to be,
        an excessive level in light of the criminal conduct at issue
        in the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (some

punctuation and citations omitted).

     Moreover,

        [w]here pre-sentence reports exist, we shall continue to
        presume that the sentencing judge was aware of relevant
        information regarding the defendant’s character and
        weighed those considerations along with mitigating
        statutory factors. A pre-sentence report constitutes the
        record and speaks for itself.      In order to dispel any
        lingering doubt as to our intention of engaging in an effort
        of legal purification, we state clearly that sentencers are
        under no compulsion to employ checklists or any extended
        or systematic definitions of their punishment procedure.
        Having been fully informed by the pre-sentence
        report, the sentencing court’s discretion should not
        be disturbed. This is particularly true, we repeat, in
        those circumstances where it can be demonstrated that
        the judge had any degree of awareness of the sentencing
        considerations, and there we will presume also that the
        weighing process took place in a meaningful fashion. . . .

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).

When sentencing in the standard range of the Sentencing Guidelines, “a

sentencing judge may satisfy [the] requirement of disclosure on the record

of his reasons for imposition of a particular sentence without providing a

detailed, highly technical statement.”      Commonwealth v. Hunzer, 868

A.2d 498, 514 (Pa. Super. 2005) (citation omitted).




                                      -9-
J-S53035-16


        Appellant’s intended challenges to the aggregate sentence focuses on

the trial court’s decision to run the theft sentence consecutively to the four

concurrent drug offenses.5 Such a challenge to the consecutive nature of a

sentence does not raise a substantial question under the circumstances of

this case. See Mastromarino, 2 A.3d at 586-87. Moreover, the suggestion

that the trial court, which had the benefit of a presentence investigation

report, failed to consider mitigating factors or inadequately explained its

sentence lacks support in the law or the record.6 See Devers, 546 A.2d at



5
  Instantly, the parties agreed that Appellant had a prior record score of five,
the drug offenses carried an offense gravity score of six, and the theft
carried an offense gravity score of five. N.T. at 8-9. The standard range
recommended minimum sentences were from twenty-one to twenty-seven
months’ imprisonment for the drug offenses and from twelve to eighteen
months’ for the theft. Id. The court’s individual sentences of two to five
years’ imprisonment for the drug offenses and one to two years plus five
years’ probation thus fell within the standard range. The trial court, when
structuring the sentence, had the benefit of presentence investigation report
and stated it review the report. Id. at 7, 13.
6
    The trial court, when sentencing, stated:

           I have reviewed the P.S.I. I have taken into account the .
           . . written and oral colloquies. I have taken into account
           the provisions of the Sentencing Guidelines, the
           information provided by the parties, as well as the
           recommendations of the parties.

              I have scrutinized [Appellant’s] prior record so that I
           could get a proper context here and also in order to more
           sensibly consider the provision of the Sentencing Code
           insofar as the factors required to take into account, one of
           which the severity of the offenses and [Appellant’s]
           rehabilitative needs, especially in light of the extensive



                                      - 10 -
J-S53035-16


18; Hunzer, 868 A.2d at 514.            Accordingly, we conclude Appellant’s

intended challenges to the excessiveness of the sentence do not raise

substantial questions and are frivolous.

         Appellant’s counsel next discusses Appellant’s assertion that the trial

court erred in denying his post-sentence motions to withdraw his guilty

pleas.     Appellant intends to argue that “he did not enter his guilty pleas

knowingly, intelligently or voluntarily” and “was pushed into entering open

guilty pleas.” Anders/Santiago Brief at 18. Appellant “want[s] to proceed

to trial and assert his innocence.”      Id.   Counsel observes that Appellant

“may argue that the guilty plea colloquy . . . failed to ascertain whether he

understood the nature of the charges to which he was pleading guilty.”         Id.

Counsel notes the on-the-record guilty plea colloquy did not include a

recitation of the elements of the charges. Id. However, counsel concludes

that this issue is frivolous because the totality of the circumstances

suggested Appellant was aware of the nature of the charges.              Id.   We

disagree with counsel’s assessment.

         It is well-settled that:

            [p]ost-sentence motions for withdrawal are subject to
            higher scrutiny since courts strive to discourage entry of
            guilty pleas as sentence-testing devices. A defendant
            must demonstrate that manifest injustice would result if

            substance abuse history that has been outlined and
            detailed.

N.T. at 13.



                                      - 11 -
J-S53035-16


         the court were to deny his post-sentence motion to
         withdraw a guilty plea.          “Manifest injustice may be
         established if the plea was not tendered knowingly,
         intelligently, and voluntarily.”

Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010) (citations

omitted).

         The Pennsylvania Rules of Criminal Procedure mandate
         that pleas be taken in open court, and require the court to
         conduct an on-the-record colloquy to ascertain whether a
         defendant is aware of his rights and the consequences of
         his plea.     Specifically, the court must affirmatively
         demonstrate the defendant understands: (1) the nature of
         the charges to which he is pleading guilty; (2) the factual
         basis for the plea; (3) his right to trial by jury; (4) the
         presumption of innocence; (5) the permissible ranges of
         sentences and fines possible; and (6) that the court is not
         bound by the terms of the agreement unless the court
         accepts the agreement.       This Court will evaluate the
         adequacy of the plea colloquy and the voluntariness of the
         resulting plea by examining the totality of the
         circumstances surrounding the entry of that plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016)

(citations omitted); see also Pa.R.Crim.P. 590 & cmt.

      Section 3921(a) of the Crimes Code defines theft as follows: “A person

is guilty of theft if he unlawfully takes, or exercises unlawful control over,

movable property of another with intent to deprive him thereof.” 18 Pa.C.S.

§ 3921(a). The maximum sentence for theft is determined, in part, by the

value of the property taken.    See id. § 3903(a.1), (b).     “If the amount

involved exceeds $2,000,” a theft is graded as a third-degree felony,

punishable by a maximum of seven years imprisonment.         Id. §§ 1103(3),

3903(a.1). If the amount involved is $2,000 or less, but greater than $200,


                                    - 12 -
J-S53035-16


the theft is graded as a first-degree misdemeanor, punishable by a

maximum of five years imprisonment. Id. §§ 1104(1), 3903(b).

       Instantly, the record establishes that Appellant was apprised of the

factual bases for his guilty pleas, his right to trial by jury, the presumption of

innocence,    and    the     maximum     possible    sentences.    N.T.    at   3-7.

Additionally, Appellant was aware that the court was not bound by the

parties’ agreement on the charges and he could withdraw his pleas if the

court did “not sentence him in accordance with the charge agreement.” See

id. at 4.    As counsel notes, Appellant also signed written guilty plea

colloquies indicating he understood the nature of the charges to which he

was pleading guilty, including the felony-three theft.

       However, the written colloquy and the totality of the circumstances

discussed by Appellant’s counsel do not establish that Appellant admitted or

was advised that the items stolen were valued over $2,000. In his written

colloquy, Appellant acknowledged that he “unlawfully took or exercised

control over moveable property of another, having a value of $2,000 more

or less, with the intent to deprive the owner thereof.”                   Statement

Accompanying Defendant’s Request to Enter a Guilty Plea, CP-06-CR-

0005965-2014,       at   3   (emphasis     added).     Although   restitution   was

subsequently set at $31,000 at sentencing, the record surrounding the guilty

plea evinces no clear statement of the value of the stolen items. See N.T. at

5-6.



                                         - 13 -
J-S53035-16


     Thus, we find that Appellant’s counsel failed to address the issue

regarding the value of the items Appellant admitted he “stole.” In so doing,

counsel overlooked possible challenges to the knowing nature of Appellant’s

plea to theft and the legality of the sentence imposed for that offense. Cf.

Kearns, 896 A.2d at 645-46. Therefore, we must deny counsel’s motion to

withdraw and remand this case for further proceedings. See Santiago, 978

A.2d at 355 n.5, 361.     Counsel shall have thirty days to consider these

issues and either file an amended Anders/Santiago brief,7 or petition this

Court for remand under Pa.R.A.P. 1925(c)(4) if counsel determines there

any nonfrivolous issues for appeal.

     Petition to withdraw denied.      Case remanded.   Counsel shall file an

amended Anders/Santiago brief or a petition for remand under Pa.R.A.P.

1925(c)(4) within thirty days of this memorandum.          Panel jurisdiction

retained.




7
  If counsel elects to file an amended Anders/Santiago brief, she shall file a
new petition to withdraw pursuant to Anders/Santiago, which ensures,
inter alia, that Appellant is apprised of his right to proceed pro se or with
private counsel and counsel has provided Appellant a copy of her brief.



                                      - 14 -
