J-S16023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

LARRY SHOWALTER,

                        Appellant                 No. 1049 WDA 2016


      Appeal from the Judgment of Sentence entered June 22, 2016,
            in the Court of Common Pleas of Bedford County,
          Criminal Division, at No(s): CP-05-CR-0000132-2013.


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

MEMORANDUM BY RANSOM, J.:                               FILED MAY 24, 2017

     Appellant Larry Showalter appeals from the judgment of sentence

imposed on June 22, 2016. We remand with instructions.

     The pertinent facts and procedural history, as gleaned from our review

of the certified record are as follows. The multiple charges brought against

Appellant stem from allegations made by his biological daughter that he

raped her on multiple occasions when she was between the ages of 8 and

11. On June 19, 2014, a jury convicted Appellant of two counts of rape of a

child, two counts of involuntary deviate sexual intercourse (IDSI), two

counts of aggravated indecent assault, two counts of incest, endangering the




*Retired Senior Judge assigned to the Superior Court.
J-S16023-17



welfare children, corruption of minors, and three counts of indecent

exposure.1 Appellant was found not guilty of an additional fourteen charges.

After an evidentiary hearing on September 24, 2014, the trial court

designated Appellant a sexually violent predator and sentenced him to an

aggregate term of 60-120 years of imprisonment.

       Appellant timely filed an appeal to this Court, in which he asserted trial

court error in its admission of hearsay statements made by the victim, as

well as a challenge to the discretionary aspects of his sentence.        Although

we concluded that the trial court erred in admitting the statements as an

excited utterance, we found the error harmless because the victim had

already made the same statements in her own testimony at trial. We then

raised sua sponte the issue of whether Appellant’s sentence, which included

the application of mandatory minimums, was illegal in light of the United

States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.

2151 (2013), and subsequent Pennsylvania cases applying the Alleyne

holding, including Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.

2014).      Because these cases concluded that the application of the

mandatory minimums were unconstitutional, we vacated and remanded for




____________________________________________


1
  18 Pa.C.S. §§ 3121(c), 3123(b),                3125(a)(7),   4302,   4304(a)(1),
6301(a)(i), and 3127(a), respectively.




                                           -2-
J-S16023-17



resentencing.      See Commonwealth v. Showalter, 145 A.3d 770 (Pa.

Super. 2016) (unpublished memorandum).

        Upon remand, Appellant was resentenced on June 22, 2016, to an

aggregate term of 56-120 years. The trial court denied Appellant’s timely-

filed motion for reconsideration of sentence.      This appeal follows.      Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

        Appellant raises the following issue:

           I.    WHETHER   THE  TRIAL   COURT    ABUSED ITS
                 DISCRETION IN SENTENCING APPELLANT TO AN
                 AGGREGATE TERM OF 56 TO 120 YEARS?

Appellant’s Brief at 6.

        Although not styled as an Anders2 brief, counsel for Appellant

essentially argues Appellant’s sentencing claim is frivolous.     According to

counsel’s assessment, Appellant is unable to establish that a substantial

question exists as to the aggregate term imposed upon resentencing:

              Meeting the “substantial question” burden, in the
        undersigned counsel’s experience and research is not a huge
        burden to meet. An [a]ppellant needs only to raise a “colorable
        argument” that a substantial question exists. [Commonwealth
        v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)].           See
        Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002).
        However, there must be something in the record to indicate that
        the burden can be met at least for review.

              In the instant case, a review of the record shows no
        evidence that the sentence was either inconsistent with a specific
____________________________________________


2
    Anders v. California, 386 U.S. 738 (1967).




                                           -3-
J-S16023-17


       provision of the Sentencing Code or contrary to the fundamental
       norms which underlie the sentencing process and even a
       “colorable argument” that a “substantial questions exists” cannot
       be raised.

             [Appellant] in this case was being resentenced; and had
       already experienced getting sentenced to 60 years minimum in
       jail. At his resentencing, which is the subject of the instant
       appeal, [Appellant] himself did not even complain about his first
       sentence or state why it should be less.

Appellant’s Brief at 12-13.

       This is this sum total of counsel’s analysis.    When court-appointed

appellate counsel determines that an appeal is wholly frivolous, he or she

must file a petition to withdraw accompanied by an appellate brief that

complies with the following:

       [I]n 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.

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

       Here, counsel has done neither. In addition, we note that, in his prior

appeal, Appellant did complain of the length of his aggregate sentence, but

the issue was not reached by the panel due to its finding the sentence

illegal.   See Showalter, supra.      Thus, we remand for preparation of a

proper advocate brief addressing Appellant’s sentencing issue as reproduced



                                     -4-
J-S16023-17



above, or, if in counsel’s assessment the appeal remains frivolous, a

Anders/Santiago compliant brief accompanied by a petition to withdraw.

The amended brief shall be submitted within forty-five days.

     Case remanded. Jurisdiction retained.




                                    -5-
