J-S31029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellee

                       v.

ASHLYNN TAYLOR HARTMAN

                             Appellant                    No. 2027 MDA 2015


          Appeal from the Judgment of Sentence September 16, 2015
              In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0000006-2015


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                  FILED AUGUST 15, 2016

        Ashlynn Taylor Hartman appeals from the judgment of sentence

imposed September 16, 2015, in the Franklin County Court of Common

Pleas. The trial court imposed an aggregate sentence of eight to 36 months’

imprisonment, following Hartman’s guilty plea to charges of possession of a

controlled substance and theft.1               Contemporaneous with this appeal,

Hartman’s counsel has filed a petition to withdraw from representation and

an Anders brief.2           See Anders v. California, 386 U.S. 738 (1967);
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §780-113(a)(16) and 18 Pa.C.S. § 3921(a), respectively.
2
  When this appeal originally appeared before this panel, the transcript from
Hartman’s guilty plea hearing was not included in the certified record.
Consequently, we denied counsel’s petition to withdraw, and remanded with
instructions for counsel to obtain the requisite notes of testimony, so that
(Footnote Continued Next Page)
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Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). The sole issue

addressed in the Anders brief is a challenge to the discretionary aspects of

Hartman’s sentence. For the reasons that follow, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

      The facts underlying Hartman’s guilty plea are as follows.         On

November 7, 2014, Hartman stole three hydrocodone pills from the

complainant, Ralph Kline. When confronted by the police, Hartman admitted

to the theft, and, on August 5, 2015, entered a guilty plea to the above-

stated charges. On September 16, 2015, the trial court imposed a sentence

of six to 24 months’ imprisonment for the possession charge, and a

consecutive term of two to 12 months’ imprisonment for the theft charge.3

Hartman filed a timely post-sentence motion seeking modification of her




                       _______________________
(Footnote Continued)

she could review the entire record for any non-frivolous issues, and within
30 days of receipt of the transcript, to file either an advocate’s brief or
another Anders brief and petition to withdraw. See Commonwealth v.
Hartman, 2027 MDA 2015 (Pa. Super. filed 6/9/2016). Counsel promptly
complied with our directive.
3
   The same day, Hartman was sentenced in three separate cases for
violations of probation. See Docket Nos. 1353-2012, 364-2013, and 1212-
2014. On those charges, the court imposed an aggregate term of 30 to 72
months’ imprisonment, and ordered that sentence to run consecutively to
the sentence imposed herein. The appeals from those sentences were
consolidated, and are pending before this Court. See Superior Court Docket
Nos. 1800 MDA 2015, 1801 MDA 2015, and 1802 MDA 2015.




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sentence. The trial court denied the motion on October 23, 2015, and this

timely appeal followed.4

       When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any

of the substantive issues raised on appeal.         Commonwealth v. Bennett,

124 A.3d 327, 330 (Pa. Super. 2015).             Our review of the record reveals

counsel has complied with the requirements for withdrawal outlined in

Anders, supra, and its progeny. Notably, counsel completed the following:

(1) she filed a petition for leave to withdraw, in which she states her belief

that the appeal is wholly frivolous; (2) she filed an Anders brief pursuant to

the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009); (3) she furnished a copy of the Anders brief to Hartman; and (4)

she advised Hartman of her right to retain new counsel or proceed pro se.

See Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013)

(en banc).     Moreover, we have received no correspondence from Hartman

supplementing the Anders brief. Accordingly, we will proceed to examine

the record and make an independent determination of whether the appeal is

wholly frivolous.


____________________________________________


4
  On November 20, 2015, the trial court ordered Hartman to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Hartman complied with the court’s directive, and filed a concise statement
on December 11, 2015.




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     The sole issue identified in counsel’s Anders brief challenges the

discretionary aspects of her sentence.    A challenge to the discretionary

aspects of a sentence is not absolute, but rather, “must be considered a

petition for permission to appeal.” Commonwealth v. Best, 120 A.3d 329,

348 (Pa. Super. 2015) (quotation omitted). To reach the merits of a

discretionary issue, this Court must determine:
     (1) whether the appeal is timely; (2) whether Appellant
     preserved [the] issue; (3) whether Appellant’s brief includes a
     concise statement of the reasons relied upon for allowance of
     appeal with respect to the discretionary aspects of sentence; and
     (4) whether the concise statement raises a substantial question
     that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

     Counsel complied with the procedural requirements for this appeal by

filing both a post-sentence motion for reconsideration of sentence and a

timely notice of appeal.    Counsel also included in the Anders brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must consider whether Hartman raised a substantial question justifying our

review.

     A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d


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1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).

         Here, Hartman contends the sentence was “manifestly unreasonable

because the court failed to consider a number of factors and gave too great

weight to negative factors[.]”5           Anders Brief at 12.          Specifically, she

asserts:      (1)   the    complainant     did   not   suffer   “any    serious   health

consequences” as a result of her theft of his pills; (2) she was “extremely

cooperative with the police;” (3) she gave birth only a few weeks prior to

sentencing and was “hoping to be able to bond with her child;” and (4) she

made positive changes in her life, including a successful stint on electronic

monitoring and completion of a county day reporting program. Id. at 12-13.

She states that “a reasonable sentence would have consisted of concurrent

sentences rather than running each case consecutive to one another.” Id.

at 12.

         Further, Hartman disputes the trial court’s reliance on two negative

factors, namely, that she did not sign up for programming while in county

jail, and that she brought Xanax into a treatment facility and distributed it to

other patients. See id. at 13. Hartman explains she had no time to register

____________________________________________


5
  It is well-established that when a defendant enters a guilty plea, she may
seek a discretionary appeal of those sentencing terms that were not
negotiated. Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super.
2009), appeal denied, 990 A.2d 726 (Pa. 2010). Here, Hartman entered an
open guilty plea.



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for classes in county jail because she had given birth only a few weeks prior

to her sentencing, and suspected she would be sentenced to state time.

See id.   Moreover, she asserts she had a prescription for the Xanax, and

was instructed by her doctor to stay on the medication during her

pregnancy. See id. Therefore, she claims the trial court improperly relied

on these purportedly negative factors.

      “[A]n allegation that the sentencing court failed to consider mitigating

factors generally does not raise a substantial question for our review.”

Commonwealth v. Rhoades, 8 A.3d 912, 918-919 (Pa. Super. 2010),

appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132 S.Ct. 1746 (U.S.

2012). However, this Court has held that an “excessive sentence claim[ ] in

conjunction with an assertion that the court did not consider mitigating

factors[,]”   does   present   a   substantial   question   for   our   review.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015), quoting Commonwealth v.

Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (en banc), appeal denied, 91

A.3d 161 (Pa. 2014).     Moreover, while a challenge to the imposition of

consecutive versus concurrent sentences generally does not raise a

substantial question, such a claim may be addressed when the defendant

alleges the “aggregate sentence is unduly harsh, considering the nature of

the crimes and the length of imprisonment.”      Commonwealth v. Moury,

992 A.2d 162, 171-172 (Pa. Super. 2010). Therefore, because we conclude


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Hartman has nominally raised a substantial question, we proceed to an

examination of her argument on appeal.

      Our standard of review of claims challenging the discretionary aspects

of sentencing is well-established:

      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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015).

      Pursuant to the Sentencing Code, a trial court “shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with 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). The Code also

mandates an appellate court must vacate a sentence if it finds that the

sentence, while within the applicable guidelines, “involve[d] circumstances




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where the application of the guidelines would be clearly unreasonable[.]”6

42 Pa.C.S. § 9781(c)(2).

       During the sentencing hearing, the trial court noted Hartman had been

“afforded a number of treatment times and opportunities,” including an

unsuccessful discharge from inpatient treatment in 2013, discipline at a

halfway house that same year for drinking and using heroin, further drug-

related arrests, and a discharge from an inpatient treatment in 2015 for

dealing drugs to other patients. N.T., 9/16/2015, at 5-6. The court further

observed:

             I cannot fathom the depth of your lack of judgment. You
       are a child. You have neither the skills nor the ability to conform
       your conduct to the law, and you apparently, for the last two
       years, have not taken the trouble you are in seriously, despite
____________________________________________


6
 Counsel acknowledges, in the Anders brief, that Hartman’s sentences
were imposed within the standard range of the sentencing guidelines. See
Anders Brief at 14.

       We note both the written and oral plea colloquies state the maximum
sentence Hartman could receive on the charge of possession was one year
imprisonment, so that her total maximum exposure for both charges was a
term of two years’ imprisonment. See Plea Agreement, 8/5/2015; N.T.,
8/5/2015, at 3. As noted above, however, Hartman was sentenced to a
term of six to 24 months’ imprisonment on the possession charge alone, and
an aggregate sentence of eight to 36 months.            The Commonwealth
explained in its sentencing memorandum that Hartman faced a maximum
penalty of three years’ imprisonment for the possession charge because this
conviction was her second offense for such a crime. See Commonwealth’s
Sentencing Memorandum, 9/9/2015, at 1 n.1, citing 35 P.S. § 780-113(b).
Hartman did not object at the sentencing hearing, and has never claimed her
guilty plea was entered either unknowingly or involuntarily. Accordingly, we
need not address this apparent discrepancy on appeal.




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     the not less than seven times the Adult Probation Department
     has given you an opportunity to prove that you can stay in this
     community.

Id. at 6-7.   The court found “most reprehensible” Hartman’s conduct at

Clearbrook Lodge, an inpatient substance abuse facility.   Id. at 7. During

her stay, Hartman passed out her prescribed medication to other patients.

See Commonwealth’s Answer to Defendant’s Motion Requesting Furlough,

8/11/2015, Exhibit B, Letter from Clinical Direction of Clearbrook Lodge to

Hartman’s Probation Officer, dated 7/7/2015. The court noted the patients

were in treatment to address a problem, and “lo and behold the problem

was living among them at the time.” N.T., 9/16/2015, at 7.

     We find no reason to disturb the sentence imposed by the trial court.

Here, the court had the benefit of a pre-sentence investigation report, as

well as a probation violation packet prepared for the violation sentences

imposed that same day.     See supra, n.3.    It is well-settled that where a

trial court had the benefit of a pre-sentence investigation report, we will

presume the trial court was “aware of all appropriate sentencing factors and

considerations.”   Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010) (citation omitted).      The trial court properly considered

Hartman’s numerous, prior failed attempts at treatment when imposing the

sentence herein. Further, our review of the sentencing transcript reveals the

court was more troubled by Hartman’s repeated violations than her failure to

register for any programs in county jail.       With respect to Hartman’s

contention that she had a prescription for the drugs she brought into


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Clearbrook, we note the court’s concern was with the fact that she provided

those pills to other patients, not that she took them herself.

      Because we agree with counsel’s assessment that this appeal is wholly

frivolous, we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

      Judgment of sentence affirmed.          Petition to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2016




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