J-S22001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWARD DAVID MARTINEZ,

                            Appellant               No. 1320 MDA 2016


             Appeal from the Judgment of Sentence June 23, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0006117-2015


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JUNE 19, 2017

       Appellant, Edward David Martinez, appeals from the judgment of

sentence entered following his conviction of robbery and additional crimes in

relation to the burglary of a private home in Berks County.       In addition,

appellate counsel has filed a petition to withdraw his representation and a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a

withdrawal from representation on direct appeal.           We grant counsel’s

petition to withdraw and affirm the judgment of sentence.

       We summarize the history of this case as follows. On November 17,

2015, Appellant and three co-defendants went to a home in Oley Township
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



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on the mistaken belief that it was a “drug house,” with the intent to steal

controlled substances. N.T., 6/23/16, at 5-6. The home was occupied by a

family of three, consisting of a husband, wife, and their eleven-month-old

child. Id. at 6. During the home invasion, the husband was shot by one of

the four co-defendants and sustained serious bodily injuries.               Id.    In

addition, the husband shot Appellant and one of his co-defendants.                Id.

Appellant and his injured co-defendant were driven to the hospital by the

unharmed co-defendants.           Id. at 7.    Appellant received treatment for his

injuries and was arrested after he was released from the hospital. Id. at 7-

8.

        On January 8, 2016, the Commonwealth filed an information charging

Appellant with a total of twenty-one counts related to the incident.

Information, 1/8/16, at 1-4. On June 23, 2016, Appellant entered an open

plea of guilty to one count each of aggravated assault, burglary, and

robbery, and three counts of conspiracy.1               The trial court sentenced

Appellant to serve an aggregate term of incarceration of fifteen to thirty-two

years.    N.T., 6/23/16, at 18.       In fashioning Appellant’s sentence, the trial

court    applied   the   deadly    weapon      enhancement    under   204   Pa.Code




____________________________________________


1
     18 Pa.C.S. §§ 2702, 3502, 3701, and 903, respectively.



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§ 303.10.2    After sentencing was completed, the Commonwealth moved to

dismiss the remaining counts in the information, which the trial court

granted. Id.

       On June 29, 2016, Appellant filed a pro se post-sentence motion. On

July 11, 2016, Appellant’s counsel filed a nunc pro tunc post-sentence

motion seeking to modify Appellant’s sentence. On July 13, 2016, the trial

court entered an order denying both post-sentence motions and indicating

that Appellant had thirty days in which to file a notice of appeal. This timely

appeal followed.       Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.3

       As noted, counsel has filed a petition to withdraw from representation.

Before we address the questions raised on appeal, we must resolve appellate

counsel’s request to withdraw.           Commonwealth v. Cartrette, 83 A.3d

1030 (Pa. Super. 2013) (en banc).                There are procedural and briefing
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2
   We note that in Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.
Super. 2014) (en banc), this Court concluded that the deadly weapon
enhancement found at section 303.10 is not unconstitutional under Alleyne
v. United States, 133 S.Ct. 2151 (2013) (holding that any fact other than a
prior conviction that triggers a mandatory minimum sentence must be found
by a jury beyond a reasonable doubt). Buterbaugh, 91 A.3d at 1270 n.10.
3
   In his Pa.R.A.P. 1925(b) statement, Appellant raised the following single
issue:

       Whether the aggregate sentence in this matter is manifestly
       excessive and a product of an abuse of judicial discretion?

Pa.R.A.P. 1925(b) Statement, 9/20/16, at 1.



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requirements imposed upon an attorney who seeks to withdraw on direct

appeal. The procedural mandates are that 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.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within the petition

to withdraw, counsel averred that he conducted a conscientious review of

the record and pertinent legal research.      Following that review, counsel

concluded that the present appeal is frivolous.     Counsel sent Appellant a

copy of the Anders brief and petition to withdraw, as well as a letter, a copy

of which is attached to the petition to withdraw.      In the letter, counsel

advised Appellant that he could represent himself or that he could retain

private counsel.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

      in the Anders brief that accompanies court-appointed counsel’s
      petition to withdraw, counsel 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.

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Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

     Counsel’s brief is compliant with Santiago.     The brief sets forth the

procedural history and facts of this case and outlines pertinent case

authority. We thus conclude that the procedural and briefing requirements

for withdrawal have been met.

     Counsel presents the following issue for our review:

     Whether the aggregate sentence in this matter was manifestly
     excessive and a product of an abuse of judicial discretion?

Anders Brief at 4.

     Appellant’s sole issue challenges the discretionary aspects of his

sentence.   It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).     Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.   Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

     As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

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

            [W]e conduct a four-part analysis to determine: (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.

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              [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, 42
              Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

       Whether a particular issue constitutes a substantial question about the

appropriateness of sentence is a question to be evaluated on a case-by-case

basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

As to what constitutes a substantial question, this Court does not accept

bald assertions of sentencing errors.          Commonwealth v. Malovich, 903

A.2d 1247, 1252 (Pa. Super. 2006).               An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id.

       Herein, the first three requirements of the four-part test are met,

those being that Appellant brought an appropriate appeal, raised the

challenge in a post-sentence motion, and included in his appellate brief the

necessary concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).4             Therefore, we next determine

whether Appellant raises a substantial question requiring us to review the

discretionary aspects of the sentence imposed by the trial court.


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4
  We observe the Commonwealth has conceded Appellant has complied with
Pa.R.A.P. 2119(f). Commonwealth’s Brief at 6 n.1.



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      Appellant asserts that the sentencing court abused its discretion by

imposing a manifestly excessive sentence. However, as previously stated,

we do not accept bald assertions of sentencing errors. Malovich, 903 A.2d

at 1252 (citing Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa.

2002)). “Rather, Appellant must support his assertions by articulating the

way in which the court’s actions violated the sentencing code.” Id. Thus, to

the extent Appellant’s claim is a bald allegation of trial court error at the

time of sentencing, we conclude that he has not presented a substantial

question for our review.

      Even if we had concluded that Appellant presented a substantial

question and were to address the merits of this claim, we would determine,

as did the trial court, that the issue lacks merit. The trial court explained:

             Appellant challenges the sentencing imposed for his
      numerous convictions. In aggregate, we imposed a term of
      incarceration for not less than [fifteen] (15) nor more than
      [thirty-two] (32) years’ incarceration. This sentence was based
      on numerous factors which clearly indicated that Appellant
      required an extensive term of incarceration.         The following
      excerpt from Appellant’s sentencing hearing is illustrative:

            The Court: All right. I have taken into account
            many things. Of course I have reviewed the P.S.I.,
            which frankly is not favorable for the defendant.
            Despite the fact he is a young man, he has a very
            substantial prior record score. Most troubling of
            course, that includes an adjudication of a second
            degree felonious robbery as a juvenile.           And
            obviously what occurred in this incident is sort of an
            outgrowth of that conduct.

            I have taken into account the provisions of the
            Sentencing Guidelines. I have taken into account

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          the factual background and pattern of the case about
          which, about the best thing I can say it is malicious.
          No one was killed here. And for that we should all
          be thankful; otherwise, we would be having an
          entirely different proceeding here than we are.

          I also want to point out that in looking at the
          sentencing guidelines that have been referenced by
          both counsel, if the defendant were to receive
          consecutive sentences on these counts, even at the
          very bottom of the standard range, the minimum
          sentence would be 28 years in prison, which is
          substantially more than even the Commonwealth has
          recommended here.

          I note, [Appellant], you are a young man and you
          are going to get a very substantial sentence here.
          But you are going to be paroled on these charges.
          And you are not going to be an old man when that
          happens so long as you conduct yourself well and
          learn the lessons here while you are in jail. That’s
          the thing that you must remember. And you must
          remember not only for yourself but for your family as
          well.

          Taking all of these matters into account, I’m going to
          [-- (pause in the proceeding while the Judge spoke
          to his tipstaff.)]

          And also I want to add, [Appellant], you need to
          recognize here -- I don’t know what other people
          have told you. I don’t know what other people in the
          jail have told you. Most of those people have no
          idea what they are talking about first of all. And
          secondly, the Commonwealth has not dealt with you
          particularly  harshly   here.       Even     in   their
          recommendation, which is very substantially under
          what even the bottom range guideline sentence
          would be.     So you ought to walk out of this
          courtroom feeling fortunate for the disposition of this
          case considering how much more severe it could
          have been under the circumstances. . . .

     [N.T., 6/23/16, at 15-17.]

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            Appellant’s allegation that this [c]ourt did not adequately
      consider the aggregate sentence is without merit. During our
      deliberations, in arriving at the length of sentence, we dutifully
      considered Appellant’s delinquent history and the severity of the
      crime. Considering these factors, amongst others, in respect to
      the Commonwealth’s sentencing guidelines, our sentence was
      not manifestly excessive. Instead, this [c]ourt showed mercy,
      as the sentence the Appellant received was well below the
      bottom of the standard range.

Trial Court Opinion, 9/21/16, at 2-3.    Therefore, if we had addressed this

issue, we would have concluded Appellant failed to establish that the trial

court abused its discretion in fashioning Appellant’s sentence.

      We also have independently reviewed the record in order to determine

whether there are any non-frivolous issues present in this case that

Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.

Super. 2014). Having determined that there are no meritorious issues, we

grant Appellant’s counsel permission to withdraw, and we affirm the

judgment of sentence.

      Petition of counsel to withdraw is granted.      Judgment of sentence

affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2017




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