J-S80038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                       v.

MICHAEL EDWARD SALKO, JR.

                             Appellant                        No. 1967 MDA 2015


          Appeal from the Judgment of Sentence October 8, 2015
              In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-0002004-2015, CP-40-CR-0002972-2013,
                          CP-40-CR-0003165-2013


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                                FILED JANUARY 11, 2017

        Appellant, Michael Edward Salko, Jr., appeals from the October 8,

2015     judgment     of    sentence     of    twenty-four   months      of   intermediate

punishment and two            years of probation.            Appellant   challenges the

discretionary aspects of his sentence.              Additionally, Appellant’s counsel,

Amanda M. Young, Esq., seeks to withdraw her representation of Appellant

pursuant     to   Anders      v.   California,     87   S.    Ct.   1936      (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                         We affirm and

grant counsel’s petition to withdraw.

        On August 24, 2014, at criminal information No. 3165-2013, Appellant

pleaded guilty to loitering and prowling at nighttime.1 On May 20, 2015, at
____________________________________________


1
    18 Pa.C.S. § 5506.
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criminal information No. 2972-2013, Appellant pleaded guilty to receiving

stolen property.2 On October 8, 2015, at criminal information No. 2004-

2015, Appellant pleaded guilty to possession of a controlled substance,

possession of drug paraphernalia, and driving while operating privilege was

suspended or revoked.3

       Appellant was sentenced on all three dockets on October 8, 2015. At

criminal information No. 2972-2013, he was sentenced to twenty-four

months of intermediate punishment. At criminal information No. 2004-2015,

he was sentenced to one year of concurrent probation and one year of

consecutive probation.        At criminal information No. 3165-2013, Appellant

was sentenced to one year of consecutive probation. Appellant’s sentences

were within the standard range of the sentencing guidelines.         See Trial

Court Opinion (TCO), 12/18/15, at 1.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. In the statement, appellate counsel indicated her intention to file

an Anders brief. The court issued a responsive opinion.

       On August 12, 2016, appellate counsel filed in this Court an Anders

brief and application to withdraw as counsel. The brief sets forth the single

issue Appellant seeks to raise on appeal, namely, that the imposition of a


____________________________________________


2
 18 Pa.C.S. § 3925.
3
  35 P.S. § 780-113(a)(1), 35 P.S. § 780-113(a)(32), and 75 Pa.C.S. §
1543(a).



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twenty-four month IPP sentence followed by two years of probation and a

$200 fine is harsh and excessive, where Appellant took responsibility by

pleading guilty, obtained a job, and is re-involved in his children’s lives.

Appellant’s Brief at 1.

      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. Goodwin, 928 A.2d

287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on

direct appeal under Anders, counsel must file a brief that meets the

requirements established by the Pennsylvania Supreme Court in Santiago,

namely:

      (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 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.”

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        Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
        2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, only then may this Court “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) (citations and footnote omitted).

        In the instant matter, Attorney Young’s Anders brief complies with the

above-stated requirements.            Namely, she includes a summary of the

relevant factual and procedural history, she refers to the portions of the

record that could arguably support Appellant’s claims, and she sets forth her

conclusion that Appellant’s appeal is frivolous. She explains her reasoning

and supports her rationale with citations to the record as well as pertinent

legal authority.     Attorney Young avers she has supplied Appellant with a

copy of her Anders brief and a letter explaining the rights enumerated in

Nischan.4        Accordingly,      counsel     has   complied   with   the   technical

requirements for withdrawal. Thus, we may independently review the record

to determine if the issues Appellant raises are frivolous and to ascertain if

there are other non-frivolous issues he may pursue on appeal.




____________________________________________


4
    Appellant has not filed a response to counsel’s Anders brief.



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      Appellant’s issue challenges the discretionary aspects of his sentence.

Appellant   argues    that    the   sentence    is   excessive   because   he   took

responsibility by pleading guilty, admitted his drug and alcohol problem, and

has become re-involved in his children’s lives. Appellant’s Brief at 4.

      A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal.          See Commonwealth v.

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.

2119(f). This Court conducts a four-part analysis to determine: (1) whether

Appellant has timely filed a notice of appeal; (2) whether the issue was

properly preserved at sentencing or in a motion to reconsider and modify

sentence; (3) whether Appellant’s brief has a fatal defect; and (4) whether

there is a substantial question that the sentence appealed from is not

appropriate   under     the    Sentencing      Code,    42   Pa.C.S.   §   9781(b).

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

omitted).

      Appellant has filed a timely notice of appeal. However, Appellant did

not preserve his challenge to the discretionary aspects of his sentence at

sentencing, or in a motion to reconsider. This alone would be fatal to his

appeal. Additionally, Appellant has not raised a substantial question. See

Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003) (“[A]n

allegation that the sentencing court did not consider certain mitigating

factors does not raise a substantial question.”); see also Commonwealth

v. Brown, 741 A.2d 726, 735 (“[A] claim of excessiveness of sentence does

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not raise a substantial question where the sentence is within the statutory

limits.”).

      In short, we agree with Attorney Young that Appellant’s issue is

frivolous.   We have independently reviewed the record, and find no other

issues of arguable merit that he could pursue on appeal.   Accordingly, we

affirm Appellant’s judgment of sentence and grant counsel’s petition to

withdraw.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2017




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