J-S23041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHANE LUIS SANTIAGO                        :
                                               :
                       Appellant               :   No. 2527 EDA 2017

             Appeal from the Judgment of Sentence July 5, 2017
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0004491-2012


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 07, 2018


       Appellant Shane Luis Santiago appeals from the judgment of sentence

entered in the Court of Common Pleas of Chester County on July 5, 2017, at

which time he was sentenced to an aggregate term of six and one half (6 ½)

years to thirteen (13) years in prison following his open guilty plea to two (2)

counts of possession with intent to deliver (PWID)(marijuana), one (1) count

of criminal conspiracy, five (5) counts of animal fighting, and one (1) count of

endangering the welfare of children.1 Appellant’s counsel also has filed a brief


____________________________________________


135 Pa.C.S.A. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903(c), 5511(h.1)(3), and
4304(a)(1), respectively. Relevant to our discussion herein is the mandatory
minimum sentence of two (2) years to four (4) years Appellant received for
PWID within a school zone pursuant to Section 6317 of the Crimes Code, 18
Pa.C.S.A. §§ 101-9402.


____________________________________
* Former Justice specially assigned to the Superior Court.
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pursuant to Anders v. California, 386 U.S. 738 (1967) and its Pennsylvania

counterpart Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009)

(hereinafter “Anders Brief”) together with a petition to withdraw as counsel.2

Following our review, we grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

       Appellant did not file a direct appeal of his sentence with this Court;

however, he filed a timely PCRA petition on July 28, 2014. Therein, Appellant

argued the United States Supreme Court’s decision in Alleyne v. United

States, 133 S.Ct. 2151 (2013) rendered unconstitutional the mandatory

minimum sentence he had received pursuant to 18 Pa.C.S.A. § 6317 for PWID

within a school zone. A panel of this Court agreed and determined his case

was identical procedurally to and, therefore, controlled by our recent decision

in Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa.Super. 2016)

(holding the mandatory minimum sentencing scheme set forth in Section

9712.1     and    under    which     the   appellant   had   been   sentenced   was

unconstitutional in light of Alleyne). Consequently, we determined Appellant’s

sentence was illegal because Alleyne had rendered Section 6317 facially

unconstitutional and remanded “for resentencing without the consideration of

the mandatory minimum sentence in Section 6317.”               Commonwealth v.



____________________________________________


2  Anders set forth the requirements for counsel to withdraw from
representation on direct appeal, and our Supreme Court applied Anders in
Santiago.

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Santiago, No. 3449 EDA 2014, unpublished memorandum at 5 (Pa.Super.

filed December 11, 2015).

      Following remand, a hearing was held on July 5, 2017, at which time

the Commonwealth requested that the trial court resentence Appellant to the

sentence he had received previously.      N.T., 7/5/17, at 6.    The trial court

indicated that while it was aware Appellant had been doing fairly well in prison,

it had found particularly concerning and “shocking” the description of the dog

fighting that Appellant had, himself, provided to police which had been

incorporated in the Affidavit of Probable Cause. Id. at 6-8, 12. The trial court

expressed that it was “looking at the entire package of all the charges rather

than breaking it down charge by charge” and considering whether “the original

sentence [was] fair, not putting a mandatory[.]” Id. at 12. Specifically, the

trial court highlighted that:

             [He] talks about killing ten dogs, the way they killed them,
      the way he did it and saying if the dog didn’t perform, basically do
      his job, the dog would get killed because the dog’s job was to
      fight. And he did that in a house with small children. And it’s not
      as [the prosecutor] says, or what [Appellant] says, it’s not
      explained culturally. It’s a horrifically cruel thing to do.
                                      ***
             [W]hen they go into [Appellant’s] house, they got the things
      commonly used to fight pit bulls, bite sticks, heavy chains,
      treadmills, coats cable tied into a noose, electric cords, one end
      cut off with blood on it, car jumper cables, dog hairs on one of the
      contacts. Your statement to the police is if a pit bull fighting dog
      stops fighting during a match, which you described as quit or
      quitting, the dog that quit would have to be killed.
             You say there are multiple ways to kill a dog, including
      shooting the dog, drowning the dog, hanging the dog or
      electrocuting the dog. [Appellant] stated that he personally killed
      at least ten dogs by hanging or electrocution. He described

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      manually electrocuting a dog by using a car battery jumper cables
      by placing one jumper cable on the dog’s tongue and the other
      jumper cable on the dog’s genitalia, and plugging the cut portion
      into a household socket multiple times until the dog died. And
      you’re doing that while you have five children in your house, ages
      three to fifteen years of age.
             I can’t get into Judge Gavin—if I had this case cold that day,
      you would get more than six and a half to thirteen when you put
      aside the marijuana, because it’s just that outrageous. And it’s
      not explained by culture. There is an aspect that is sadsm here,
      that there’s ways to kill things. And you’re equating it, in a sense,
      to like farm animals. They have a job and they don’t do the job.
      But if you’re sticking something into his genitalia and plugging it
      in and shocking it, that’s not on, that’s not cutting something’s
      throat simply because it’s not an effective breeder or doing
      whatever. That’s simply cruel. And that cruelty part of the case
      is what sticks in my groin.

Id. at 8, 27-28. The court also remarked that the prior sentencing court ran

some of Appellant’s sentences concurrently and deemed the overall sentence

to be appropriate. Id. at 23.

      After further discussion including references to the presentence

investigation (PSI) report, the profound affect the animal abuse had had upon

Appellant’s children, especially his youngest child, and Appellant’s numerous

write-ups while in prison, id. at 28-36, the trial court ultimately resentenced

appellant to an aggregate term of six and one half (6 ½) years to thirteen

(13) years in prison with credit for time served from December 5, 2015, and

without consideration of the mandatory minimum sentence in 18 Pa.C.S.A. §

6317. Id. at 38. Appellant filed a timely notice of appeal on August 2, 2017,

and on August 21, 2017, he filed his Concise Statement of Matters Complained

of on Appeal wherein he raised six claims of error. The trial court filed its


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Opinion Pursuant to Pa.R.A.P. 1925 on October 23, 2017, wherein it addressed

each of those claims.

      On February 20, 2018, counsel filed his Motion Seeking Permission to

Withdraw as Counsel and Anders Brief with this Court. Appellant filed no

further submissions either pro se or through privately-retained counsel

following counsel’s filing of the petition to withdraw. The Commonwealth filed

a brief with this Court on March 22, 2018.

      Prior to addressing the questions raised on appeal, we must first resolve

counsel's petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa.Super. 2007) (en banc). See also Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating “[w]hen faced with

a purported Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw.”). There

are procedural and briefing requirements imposed upon an attorney who

seeks to withdraw on appeal pursuant to which counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that he
      or she has the right to retain private counsel or raise additional
      arguments that the defendant deems worthy of the court's
      attention.

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

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders brief must:


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      (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, supra at 178-79, 978 A.2d at 361. Counsel also must provide the

appellant with a copy of the Anders brief, 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) (citation omitted). Substantial compliance with these

requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290

(Pa.Super. 2007).

      Herein, counsel contemporaneously filed his Motion Seeking Permission

to Withdraw As Counsel and Anders Brief. In his petition, counsel states that

after a careful and conscientious examination of the record he has determined

that no meritorious issues exist and an appeal herein is wholly frivolous. See

Motion Seeking Permission to Withdraw as Counsel at ¶¶ 3-4. The petition

further explains that counsel notified Appellant of the withdrawal request and

forwarded a copy of the Anders Brief to Appellant together with 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.


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See id. at 4-5; see also Anders Brief, “Letter to Appellant” attached as

Appendix “D.” The petition indicates that a copy of the Motion to Withdraw as

Counsel, Anders Brief, and notice letter were served on Appellant and these

documents correctly inform Appellant of his rights.

      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 issues raised on appeal, provides

citations to relevant case law, and states his reasoning and conclusion that

the appeal is wholly frivolous. See Anders Brief at 14-32.          Accordingly,

counsel has complied with all of the technical requirements of Anders and

Santiago.

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

privately-retained counsel, we proceed to examine the issues of arguable

merit identified in the Anders Brief. Therein, counsel presents the following

issues verbatim:

      1.    Did the re-sentencing court improperly consider the case
            docketed at No.: CP-15-CR-0000322-2013 when it
            resentenced Appellant?

      2.    Did the resentencing court improperly calculate Appellant’s
            offense gravity score and prior record?

      3.    Was the aggregate sentence imposed unreasonable?

      4.    Did the re-sentencing court improperly think it could
            increase Appellant’s sentence?

      5.    Did the re-sentencing court fail to consider the facts and
            circumstances of Appellant’s case?

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      6.    Is Appellant’s sentence illegal because the sentencing court
            sentenced Appellant over the guidelines and failed to specify
            on the record a finding of any aggravating factors?

Anders Brief at 13-14 (unnecessary capitalization omitted).          In its Rule

1925(a) Opinion, the trial court disposed of the aforementioned issues as

follows:

             In his first issue, [A]ppellant claims that the court
      improperly resentenced him on both cases, even though the
      Superior Court only reversed the sentence as it pertained to the
      PWID charges. While it is true that the Superior Court found an
      error with the sentence appellant received for the PWID charges,
      it cannot be said that the Court "remanded only the present
      matter [4491-12] for resentencing." See Concise Statement of
      Matters Complained of on Appeal. Appellant took issue with the
      entire sentencing scheme and appealed both cases. He did this
      because the court considered both cases together and came up
      with a comprehensive sentence for all charges to which appellant
      pled guilty. When the Superior Court issued its ruling, the entire
      sentencing scheme was affected and both cases were remanded
      back for resentencing. Accordingly, it was both proper and
      necessary to consider both cases during the resentencing hearing.
             The court notes that both docket numbers appear on the
      Superior Court's decision, confirming that the Court's ruling
      applied to both cases. Also, in the Court's Memorandum, the Court
      discussed all charges from both docket numbers and the
      aggregate sentence together, further evidencing that the remand
      applied to both cases. In addition, a review of the transcript of the
      resentencing hearing shows that the court, the prosecutor, and
      [A]ppellant's attorney discussed the cases together, as it was
      clear that [A]ppellant had to be resentenced on all charges.
             Moreover, even if it is found that the court should not have
      resentenced appellant on the charges under docket number 322-
      13, he suffered no prejudice as a result of the resentencing, as he
      received the same sentence that he received previously for those
      charges.
             Appellant next argues that the resentencing court
      improperly calculated the appellant's Prior Record Score ("PRS")
      as a five (5), when the score should be a three (3), and improperly


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     calculated appellant's Offense Gravity Score ("OGS") as a five (5)
     when that also should have been a three (3). (Appellant's counsel
     states, however, that the PRS may be a four (4). See Concise
     Statement of Matters Complained of on Appeal.) The following
     exchange occurred at the resentencing hearing:

         MR. NORCINI: The guidelines at the time with an OGS
         of three, I believe he had a prior record score of three at
         the time, so the guidelines would be RS to twelve. And
         that I think is the count to which the Superior Court sent
         the case back for resentencing.
         MR. BARRAZA: He had a prior record score of five.
         MR. NORCINI: I'm sorry.
         MR. BARRAZA: That places the guidelines at twelve to
         eighteen months.
         MR. NORCINI: I'm sorry. I didn't mean to misstate that.

     N.T. 7/5/17, p. 5. The prosecutor then laid out all of [A]ppellant's
     prior convictions that were considered when determining
     [A]ppellant's PRS. They included a 1996 conviction for possession
     of a controlled substance, a 1997 summary conviction for
     disorderly conduct, a 1998 conviction for possession of a
     controlled substance, a 1998 conviction for possession with intent
     to deliver, a 2000 conviction for possession with intent to deliver,
     a 2002 conviction for theft by unlawful taking, and a 2006
     conviction for terroristic threats. No objections were made at the
     time. Accordingly, he is not permitted to raise one now. It should
     be noted that during the prior sentencing hearing, defense counsel
     at that time also agreed that the PRS and OGS were correct. See
     N.T. 11/13/13, pp. 8-10. See also, prior counsel's Memorandum
     in Aid of Sentencing. In addition, for the reasons discussed below,
     [A]ppellant's new sentence is proper since the sentence received
     was not greater than the lawful maximum.
            Appellant next argues that the aggregate sentence imposed
     was unreasonable as the sentence on Count One (1) is above the
     standard range of the Sentencing Guidelines and was imposed
     consecutive to the sentence on Count Two (2). 42 Pa.C.S.A. §9721
     sets forth the types of sentences that can be imposed by a court
     in this Commonwealth. It also indicates the factors that should be
     taken into account when determining the appropriate punishment.
     The statute states in relevant part:




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         (a) General rule. --In determining the sentence to be
         imposed the court shall, except as provided in
         subsection (a.1), consider and select one or more of the
         following alternatives, and may impose them
         consecutively or concurrently:
         (1) An order of probation.
         (2) A determination of guilt without further penalty.
         (3) Partial confinement.
         (4) Total confinement.
         (5) A fine.
         (6) County intermediate punishment.
         (7) State intermediate punishment.
                             *****
         (b) General standards. - In selecting from the
         alternatives set forth in subsection (a) the 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. The court shall also consider any guidelines
         for sentencing adopted by the Pennsylvania Commission
         on Sentencing and effect pursuant to section 2155
         (relating to publication of guidelines for sentencing). In
         every case in which the court imposes a sentence for a
         felony or misdemeanor, the court shall make as a part
         of the record, and disclose in open court at the time of
         sentencing, a statement of the reason or reasons for the
         sentence imposed. In every case where the court
         imposes a sentence outside the sentencing guidelines
         adopted by the Pennsylvania Commission on Sentencing
         pursuant to section 2154 (relating to adoption of
         guidelines for sentencing) and made effective pursuant
         to section 2155, the court shall provide a
         contemporaneous written statement of the reason or
         reasons for the deviation from the guidelines. Failure to
         comply shall be grounds for vacating the sentence and
         resentencing the defendant.

     42 Pa.C.S.A. §9721.      It   should   be   noted   that   in    this
     Commonwealth:

         Sentencing is a matter vested in the sound discretion of
         the sentencing judge, and a sentence will not be

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          disturbed on appeal absent a manifest abuse of that
          discretion. However, the sentencing court must state its
          reasons for the sentence on the record, which in turn
          aids in determining "whether the sentence imposed was
          based upon accurate, sufficient and proper information.
          . . ." When imposing sentence, a court is required to
          consider "the particular circumstances of the offense and
          the character of the defendant." In considering these
          factors, the court should refer to the defendant's prior
          criminal record, age, personal characteristics and
          potential for rehabilitation. "It must be demonstrated
          that the court considered the statutory factors
          enunciated for determination of sentencing alternatives,
          and the sentencing guidelines." Additionally, the court
          must impose a sentence which 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 the
          community, and the rehabilitative needs of the
          defendant." Where the sentencing judge had the benefit
          of a pre -sentence report, however, it will be presumed
          that he "was aware of relevant information regarding the
          defendant's character and weighed those considerations
          along with mitigating statutory factors."

     Com. v. Dotter, 589 A.2d 726, 730 (Pa. Super. 1991) (citations
     omitted). See also, Com. v. Andrews, 720 A.2d 764 (Pa. Super.
     1998) and Com. v. Lawson, 650 A.2d 876 (Pa. Super. 1994).
            In the instant case, [ ] [A]ppellant was correctly sentenced
     in accordance with 42 Pa.C.S.A. §9721 and existing case law. The
     court took into account all relevant factors, including all the
     information provided in the presentence investigation report, and
     considered the protection of the public, the gravity of the offense,
     and the rehabilitative needs of the appellant in order to determine
     an appropriate sentence. Appellant's prior criminal record, the
     failure of all prior efforts at rehabilitation, the seriousness of the
     crimes charged, and all other factors led to the conclusion that
     appellant should have been sentenced to an aggregate jail term
     of 6 ½ to 13 years of incarceration.
            The court notes that a sentence for a particular crime can
     be in the mitigated range, standard range, or aggravated range.
     It can also be above the aggravated range, as long as the
     sentence is not greater than the statutory maximum for that
     crime. The court is also permitted to run sentences concurrently
     or consecutively. In order to fashion an appropriate sentence in

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     this case, most of [A]ppellant's sentences were in the standard
     range while one was above that. In addition, some sentences were
     run consecutively, while others were run concurrently. Further,
     [A]ppellant received no penalty for some of his crimes. All of the
     sentences received, however, were well within the statutory
     limits. In addition, during the resentencing hearing, the court fully
     explained its reason for sentencing appellant the way it did. See
     N.T. 7/5/17. After properly applying all relevant factors, the court
     decided on an appropriate sentence for the crimes to which
     [A]ppellant pled guilty.
            Appellant next argues that the resentencing court
     improperly thought that it could increase [A]ppellant's sentence
     at his resentencing. This argument fails for two reasons. First, the
     court did not increase [A]ppellant's sentence. To the contrary, he
     received the same sentence that he received previously. Second,
     even if the sentence was increased, the court is permitted to do
     so. When a matter is remanded back for resentencing, the slate is
     wiped clean and the court is permitted to evaluate the matter as
     if there was no prior sentencing hearing. The new sentence may
     be longer than the original sentence, shorter than the original
     sentence, or the same as the original sentence. As long as the
     court does not abuse its discretion, the sentence should be upheld.
     Even though [A]ppellant was hoping for a reduced sentence, the
     court did not abuse its discretion for failing to sentence him to a
     shorter period of incarceration.
            Appellant also argues that the court improperly failed to
     consider the facts and circumstances of the case when it
     resentenced [A]ppellant. He also claims that the court illegally
     resentenced [A]ppellant as the sentence he received on Count
     One (1) is over the guidelines and the court failed to specify on
     the record a finding of any aggravating factors. Again, these
     contentions are contradicted by the record. A review of the
     transcript from the resentencing hearing shows that the court took
     into account all relevant factors when determining an appropriate
     sentence and it explained specifically why [A]ppellant received the
     sentence he received. The court questioned [A]ppellant about
     misconducts he received while he has been in prison. N.T. 7/5/17,
     pp. 18-22, 25-26. It also carefully considered the nature of the
     crimes to which [A]ppellant pled guilty, which are particularly
     egregious. N.T. 7/5/17, pp. 27-31, 34-38. He admitted to killing
     at least ten (10) dogs by hanging or electrocution. He would
     electrocute a dog by using jumper cables. He would place one
     jumper cable on the dog's tongue and the other on the dog's
     genitals. He would then plug it into a household socket multiple

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      times until it died. His children, ages three (3) and fifteen (15)
      were in the house when this was going on. One of the children
      saw appellant hit a dog with a sledge hammer and she could hear
      screaming coming from inside the house. She is now permanently
      emotionally scarred as a result of what she saw and heard. N.T.
      7/5/17, pp. 27, 30.
            With regard to the drug cases, on July 11, 2012, [A]ppellant
      delivered 1/8 ounce of marijuana to a confidential informant. The
      delivery occurred in a playground where his children were playing.
      On July 17, 2012, appellant delivered 2.4 grams of marijuana from
      his home to a confidential informant. His children were present in
      the home when the transaction occurred.
            In addition to evaluating [Appellant’s] conduct while in
      prison and the particularly cruel facts of these cases, the court
      addressed the protection of the public, the gravity of the offenses
      and the rehabilitative needs of [ ] [A]ppellant. N.T. 7/5/17, pp.
      34-38. Only after considering all circumstances surrounding this
      case and applying all relevant factors, the court sentenced
      [A]ppellant to an appropriate sentence of 6 ½ to 13 years in
      prison.

Trial Court Opinion, filed 10/23/17, at 2-7.

      In light of the foregoing and following our independent review of the

merits of the case where we make an independent judgment deciding whether

the appeal is in fact wholly frivolous, see Commonwealth v. Wrecks, 931

A.2d 717, 721 (Pa.Super. 2007), we have found no indication of non-frivolous

issues. The record supports the trial court’s rationale, and we would have no

need to disturb it. Therefore, we grant counsel's petition to withdraw and

affirm appellant's July 5, 2017, judgment of sentence.

      Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/18




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