J-S48004-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellee,             :
                                         :
             v.                          :
                                         :
BOBBI JO ROGERS,                         :
                                         :
                   Appellant             : No. 2116 MDA 2013

          Appeal from the Judgment of Sentence November 14, 2013,
                   Court of Common Pleas, Luzerne County,
             Criminal Division at No(s): CP-40-CR-0003344-2011
                        and CP-40-CR-0003532-2011

BEFORE: DONOHUE, JENKINS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED AUGUST 01, 2014



entered on November 14, 2013 by the Court of Common Pleas of Luzerne

County, Criminal Division, following her negotiated guilty plea to two counts

of criminal conspiracy to commit the manufacture, delivery, or possession

with intent to manufacture or deliver, a controlled substance.1



pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) and

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review,



       Because Rogers challenges only the discretionary aspects of her

sentence, a recitation of the facts underlying her convictions is not


1
    35 P.S. 780-113(a)(3); 18 P.S. § 903(c).


*Retired Senior Judge assigned to the Superior Court.
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necessary. The relevant procedural history is as follows. On April 1, 2013,

Rogers entered a negotiated, counseled plea agreement in which she pled

guilty to two counts of the above-referenced crime.      Following her guilty

plea, the trial court ordered a pre-sentence investigation. On November 14,



sentenced Rogers to two sentences of 36 to 72 months of incarceration in a

state correctional facility, to run concurrent with one another.   Rogers did

not file post-sentence motions.

      On November 22, 2013, Rogers filed a notice of appeal. On November

25, 2013, the trial court issued an order directing Rogers to file a concise

statement of errors complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(b). On December 12, 2013, Rogers timely filed

her Rule 1925(b) statement.       On appeal, Counsel has filed a petition to

withdraw and brief pursuant to Anders and Santiago.

      There are particular mandates that counsel seeking to withdraw

pursuant to Anders must follow.        These mandates and the significant

protection they provide to an Anders appellant arise because a criminal

defendant has a constitutional right to a direct appeal and to counsel on that

appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

We have summarized these requirements as follows:

           Direct appeal counsel seeking to withdraw under
           Anders must file a petition averring that, after a
           conscientious examination of the record, counsel



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            finds the appeal to be wholly frivolous. Counsel must
            also file an Anders brief setting forth issues that
            might arguably support the appeal along with any
            other issues necessary for the effective appellate
            presentation thereof.

            Anders counsel must also provide a copy of the
            Anders petition and brief to the appellant, advising
            the appellant of the right to retain new counsel,
            proceed pro se or raise any additional points worthy


            If counsel does not fulfill the aforesaid technical
            requirements of Anders, this Court will deny the
            petition to withdraw and remand the case with
            appropriate instructions (e.g., directing counsel
            either to comply with Anders


Id. (citations omitted).

      Moreover, there are requirements as to precisely what an Anders

brief must contain:

            [T]he Anders brief that accompanies court-appointed

            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


            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. When faced with a purported Anders brief, we

may not review the merits of the underlying issues without first deciding

whether    counsel    has   properly   requested   permission   to   withdraw.



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Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008)



the responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

                                   Santiago, 978 A.2d at 354 n.5.

      We conclude that Counsel has complied with the requirements outlined

above.   Counsel has filed a petition with this Court stating that after

reviewing the record, he finds this appeal to be wholly frivolous. Petition for

Leave to Withdraw as Counsel, 5/19/14, at ¶ 3.       Counsel has filed a brief

setting forth one issue that he believes might arguably support an appeal.

See Anders Brief at 1, 6. In conformance with Santiago

includes summaries of the facts and procedural history of the case and

                                                                       See id.

                                                     at the appeal is frivolous

and includes citation to relevant authority. See id. at 6. Finally, Counsel

has attached to his petition the letter that he sent to Rogers, which enclosed

                         Anders brief and advised Rogers of her right to

proceed pro se or with private counsel and to raise any additional issues that



      The lone issue presented by Counsel in the Anders

                                                              Anders Brief at




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1, 6.   Our standard of review when considering discretionary aspects of

sentencing claims is as follows:

              Sentencing is a matter vested in the sound discretion
              of the sentencing judge. The standard employed
              when reviewing the discretionary aspects of
              sentencing is very narrow. We may reverse only if
              the sentencing court abused its discretion or
              committed an error of law. 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. We

              weight because it was in the best position to review

              and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).



considered a petition for permission to appeal, as the right to pursue such a

claim is no               Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004), appeal denied

                                                                       Id.

an appellant must set forth in his brief a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

                    Id.




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substantial question that the sentence imposed is not appropriate under the

                     Id.

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

            Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.



sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings. Absent such



Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006)

(citation and quotations omitted).

      We conclude that Rogers has waived her discretionary aspects of

sentence claim. Our review of the certified record reveals that Rogers never

filed a post-sentence motion challenging the discretionary aspects of her

sentence. Additionally, the transcript of the sentencing proceedings reveals

that Rogers did not challenge the discretionary aspects of her sentence

during sentencing.   See N.T., 11/14/13, at 2-7. Thus, Rogers has waived

her discretionary aspects of sentence claim.     See Shugars, 895 A.2d at

1273-74. Therefore, we agree with Counsel that the sole issue Rogers raises

on appeal is frivolous.

      Finally, after conducting our own independent review of the record, we




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assessment that

appeal wholly frivolous and permit Counsel to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/1/2014




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