J-S08032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOHN MATTHEW POLEGA

                            Appellant                   No. 2244 EDA 2014


             Appeal from the Judgment of Sentence June 26, 2014
                 In the Court of Common Pleas of Pike County
              Criminal Division at No(s): CP-52-CR-0000011-2014


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED JANUARY 26, 2015

        Appellant John Matthew Polega appeals from the judgment of sentence

entered in the Pike County Court of Common Pleas following his negotiated

guilty plea to delivery of a controlled substance and criminal conspiracy to

commit delivery of a controlled substance.1 After careful review, we affirm

and grant counsel’s petition to withdraw.

        The trial court sets forth the relevant facts of this appeal as follows:

           Appellant was charged with eight (8) offenses, including
           [m]anufacture, [d]elivery, or [p]ossession [w]ith [i]ntent
           to [m]anufacture or [d]eliver; [c]riminal attempt -
           [m]anufacture, [d]elivery, or [p]ossession [w]ith [i]ntent
           to   [m]anufacture     or   [d]eliver;   [c]onspiracy    –
           [m]anufacture, [d]elivery, or [p]ossession [w]ith [i]ntent
           to [m]anufacture or [d]eliver; [m]anufacture, [d]elivery,
____________________________________________


1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903(c), respectively.
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        or [p]ossession [w]ith [i]ntent to [m]anufacture or
        [d]eliver; [c]riminal [u]se of a [c]ommunication [f]acility;
        [t]heft by [u]nlawful [t]aking – [m]ovable [p]roperty;
        [i]ntentional [p]ossession of a [c]ontrolled [s]ubstance by
        [p]erson [n]ot [r]egistered; and [u]se/[p]ossession of
        [d]rug [p]araphernalia.1 On June 26, 2014, Appellant
        entered a negotiated plea of guilty to Count I (1),
        [d]elivery of a [c]ontrolled [s]ubstance, and Count III (3),
        [c]riminal [c]onspiracy to [c]ommit [d]elivery of a
        [c]ontrolled [s]ubstance. All remaining [c]ounts contained
        in Criminal Information Number 11-2014 were dismissed.
        Appellant was sentenced in accordance with the agreement
        to a term of incarceration of not less than eighteen (18)
        months but not more than thirty-six (36) months to be
        served in a State Correctional Facility, was credited with
        108 days time served between December 16, 2013 and
        April 3, 2014, and was approved for RRRI minimum
        sentence of thirteen and one-half (13.5) months.
            1
              35 [P.]S. [§] 780-113([a])(30), 18 Pa.C.S. [§§]
            901([a]), [903(c)], 35 Pa.C.S. [§] 780-113([a])(30),
            18 Pa.C.S. [§§] 7512[(a),] 3921([a]), 35 [P.]S. [§§]
            780-113([a])(16)[, (32),] respectively.

Trial Court Opinion, filed September 19, 2014, at 1-2 (some footnotes

omitted).

     On July 1, 2014, Appellant timely filed a post sentence motion for

modification of sentence, which the court denied the next day. On July 29,

2014, Appellant filed a notice of appeal. On July 30, 2014, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and he timely complied on August 19, 2014.

     On October 29, 2014, Appellant’s counsel filed a petition for leave to

withdraw along with an Anders brief.




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      As a preliminary matter, appellate counsel seeks to withdraw her

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago, 978 A.2d

349 (Pa.2009).    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 Santiago. 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 must also provide a copy of the

Anders brief to the appellant, together with a letter that advises the

appellant of his or her 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.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super.2007), appeal denied, 936 A.2d 40 (Pa.2007).         Substantial

compliance with these requirements is sufficient.        Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the

antecedent requirements have been met, this Court must then make an

independent evaluation of the record to determine whether the appeal is, in




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fact, wholly frivolous.”   Commonwealth v. Palm, 903 A.2d 1244, 1246

(Pa.Super.2006).

      Here, counsel filed a petition for leave to withdraw as counsel.     The

petition states counsel made a “conscientious examination of the record and

determined that the appeal would be wholly frivolous.” Petition to Withdraw

as Counsel, filed October 29, 2014, p. 1.      The petition explains counsel

notified Appellant of the withdrawal request, supplied him with a copy of the

Anders brief, and sent Appellant a letter explaining his right to proceed pro

se or with new, privately-retained counsel to raise any additional points or

arguments that Appellant believed had merit.       Id.   In the Anders brief,

counsel provides a summary of the facts and procedural history of the case

with citations to the record, refers to evidence of record that might arguably

support the issue raised on appeal, provides citations to relevant case law,

and states her conclusion that the appeal is wholly frivolous and her reasons

therefor.      See Anders Brief, pp. 5-10.         Accordingly, counsel has

substantially complied with the requirements of Anders and Santiago.

      As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issues raised

in the Anders brief:

            WHETHER THE TRIAL COURT ERRED IN DENYING
            [APPELLANT’S] POST-SENTENCE MOTION ALLEGING THAT
            [APPELLANT] RECEIVED A SENTENCE NOT APPROPRIATE
            UNDER THE APPLICABLE GUIDELINES, THAT HIS
            SENTENCE SHOULD HAVE TAKEN INTO CONSIDERATION
            MITIGATING FACTORS AND [APPELLANT] WAS UNDULY


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          PREJUDICED BY UNVERIFIED INFORMATION RECEIVED BY
          HIS PROBATION OFFICER AND/OR CONTAINED IN THE
          PRE-SENTENCE REPORT[?]

          WHETHER THE TRIAL COURT IMPROPERLY DENIED
          [APPELLANT’S] MOTION TO MODIFY SENTENCE WITHOUT
          HOLDING A HEARING THEREON[?]

Anders Brief at 4.2

       In his first issue, Appellant challenges the discretionary aspects of his

sentence. Appellant claims his aggregate sentence was too harsh, the trial

court failed to consider mitigating factors, and the court considered

unverified information about his involvement in current drug sales. In the

Anders brief, counsel states she found nothing that arguably supports this

challenge. We agree.

       When reviewing a challenge to the discretionary aspects of sentencing,

we    determine     whether      the   trial    court   has   abused   its   discretion.

Commonwealth v. Seagraves, ___ A.3d ___, 2014 PA Super 252, *3

(Nov. 6, 2014). “Challenges to the discretionary aspects of sentencing do

not entitle a petitioner to review as of right.” Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011).               Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:


____________________________________________


2
  In the Anders Brief, the first question listed is: “Whether there are any
non-frivolous issues preserved on appeal.” We will address this issue as we
discuss Appellant’s other claims.



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      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Id.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

         A substantial question exists only when the appellant
         advances a colorable argument that the sentencing judge’s
         actions were either: (1) inconsistent with a specific
         provision of the Sentencing Code; or (2) contrary to the
         fundamental norms which underlie the sentencing process.

Id. (internal citations omitted). A court’s exercise of discretion in imposing

a sentence concurrently or consecutively does not ordinarily raise a

substantial question. Commonwealth v. Mastromarino, 2 A.3d 581, 587

(Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011).           In fact, the

imposition of consecutive rather than concurrent sentences will only present

a substantial question in “the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d

365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).




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       Presently, Appellant filed a timely notice of appeal and preserved his

issues in a post sentence motion.              Appellant’s brief, however, does not

include a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).            Nevertheless, in light of Counsel’s

petition to withdraw, we will proceed to address whether Appellant raises a

substantial question.      See Commonwealth v. Lilley, 978 A.2d 995, 998

(Pa.Super.2009) (observing that Anders requires review of issues otherwise

waived on appeal).

       After Appellant pled guilty pursuant to a negotiated plea agreement,

the trial court sentenced Appellant to 18-36 months’ incarceration.3               The

plea agreement provided that Appelant’s sentences would be within the

standard range of the guidelines, and that the trial court would have

discretion to run the sentences consecutively or concurrently.                   Thus,

Appellant’s sentence is not “inconsistent with a specific provision of the

sentencing code” or “contrary to the fundamental norms which underlie the

sentencing process.”         See Prisk, supra.          Further, the imposition of

consecutive     rather    than   concurrent      sentences   is   not   unduly   harsh,

considering the nature of the crimes and the length of imprisonment. See

Lamonda, supra.
____________________________________________


3
  The court imposed consecutive sentences of 9-18 months’ incarceration for
delivery of a controlled substance and 9-18 months’ incarceration for
criminal conspiracy to commit delivery of a controlled substance, namely
heroin, for an aggregate sentence of 18-36 months’ incarceration.



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      Regarding Appellant’s claim that the court failed to consider mitigating

factors, “this Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.”    Commonwealth v. Disalvo, 70 A.3d 900, 903

(Pa.Super.2013) (internal citation omitted). However, “prior decisions from

this Court involving whether a substantial question has been raised by

claims that the sentencing court ‘failed to consider’ or ‘failed to adequately

consider’ sentencing factors has been less than a model of clarity and

consistency.”   Seagraves, supra, at *3 (internal citations omitted).

“Further, reliance on impermissible sentencing factors can raise a substantial

question.”      Commonwealth        v.   Dodge,    77   A.3d    1263,   1273

(Pa.Super.2013), reargument denied (Nov. 21, 2013), appeal denied, 91

A.3d 161 (Pa. 2014).

      Thus, Appellant has presented a substantial question, and we shall

address the merits of his claim.

      When the trial court has the benefit of a pre-sentence report, “we

presume that the court was aware of relevant information regarding the

defendant’s character and weighed those considerations along with any

mitigating factors.”    Seagraves, supra, at *3.   Regarding this issue, the

trial court reasoned:

         While [Appellant] claims that this [c]out failed to consider
         mitigating factors of record in assessing the sentence, the
         [c]ourt notes that the [c]ourt took into consideration all
         matters contained in the [pre-sentence report (]PSI[)] and

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         the information presented in [c]ourt at the sentencing
         proceeding. That information was evaluated fairly and
         completely in contemplation of the sentence imposed. In
         review of the PSI, there is no reference to [Appellant] still
         being involved in drug sales or drug use. In fact, the
         report indicates [Appellant] tested negative for drugs at
         the PSI interview. Further, [Appellant] claims he was
         prejudiced by unverified information received by the
         Probation Officer or contained in the PSI report. However,
         Appellant fails to indicate [the] nature of that information
         other than a claim that the Probation Officer heard that the
         Appellant was still involved in drug sales. As previously
         indicated, such information was not included in the PSI
         report.

Trial Court Opinion, at 5.

      After considering mitigating factors and abstaining from relying upon

impermissible information, the trial court sentenced Appellant well within the

sentencing guidelines.   Thus, the trial court did not abuse its discretion in

imposing Appellant’s sentence.

      In his second issue, Appellant argues the court should have conducted

a hearing before denying his post sentence motion.       In the Anders brief,

counsel concludes that this issue is also frivolous because “no case law

indicates that a trial court must hold a hearing regarding a post-sentence

motion.” We agree.

      The Rules of Criminal Procedure provide, in relevant part:

         Rule 720. Post-Sentence Procedures; Appeal

                                 *    *    *

         (B) Optional Post-Sentence Motion.

                                 *    *    *

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           (2) Trial Court Action.

                                     *     *      *

              (b) Hearing; Argument. The judge shall also determine
           whether a hearing or argument on the motion is required,
           and if so, shall schedule a date or dates certain for one or
           both.

Pa.R.Crim.P. 720(B)(2)(b).

     The Comment to Rule 720 explains, in pertinent part:

           Paragraph (B)(1)(b) permits the trial judge to entertain a
           supplemental post-sentence motion at his or her
           discretion, as long as the decision on the supplemental
           issue(s) is made within the time limits[.]

                                     *     *      *

           There is no requirement that oral argument be heard on
           every post-sentence motion.

Pa.R.Crim.R. 720, Comment.

     In this case, the judge determined that a hearing on Appellant’s

motion was not required.             We find no abuse of discretion in this

determination. Thus, Appellant’s claim is without merit.

     We agree with counsel that Appellant’s claim is wholly frivolous.

Moreover, our independent review of the record has revealed no other

preserved issues of arguable merit. Accordingly, we affirm the judgment of

sentence.

     Judgment of sentence affirmed.                   Counsel’s petition to withdraw

granted.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2015




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