J-S26042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

JAMIE R. SEVERANCE

                             Appellant                  No. 1828 MDA 2014


            Appeal from the Judgment of Sentence October 9, 2014
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001317-2014


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 21, 2015

        Appellant Jamie R. Severance appeals from the judgment of sentence

following his conviction for driving under the influence of alcohol or

controlled substance, high rate of alcohol.1         After review, we affirm and

grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this appeal are as follows.

On May 15, 2013, Appellant was operating a motor vehicle while under the

influence of alcohol.       N.T., 10/9/14, at 4.   On October 9, 2014, Appellant

pled guilty to one count of driving under the influence of alcohol, high rate of

alcohol.2    The same day, the court sentenced Appellant to five years of
____________________________________________


1
    75 Pa.C.S. § 3802(b).
2
  A driving under the influence of alcohol, general impairment, count was
nolle prossed.
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intermediate punishment, the first 90 days as incarceration for which

Appellant received credit for time previously served.3     The court directed

Appellant to have a drug and alcohol evaluation, to refrain from frequenting

alcohol-serving establishments, and to complete the alcohol safe driving

school. Additionally, Appellant was ordered to undergo ignition interlock for

12 months and to pay a fine of $2,500.00 and the costs of prosecution, and

his license was suspended for 18 months.

       On October 10, 2014, Appellant filed a petition for reconsideration of

sentence, which the court denied on October 14, 2014.        On October 29,

2014, Appellant timely filed a notice of appeal. On October 30, 2014, the

court ordered Appellant to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on

November 5, 2014. On January 9, 2015, Appellant’s counsel filed a petition

for leave to withdraw along with an Anders brief.

       As a preliminary matter, appellate counsel seeks to withdraw her

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 978 A.2d

349 (Pa.2009).       Prior to withdrawing as counsel on a direct appeal under




____________________________________________


3
   Because Appellant received credit for time served, he was immediately
eligible for parole. The court also placed Appellant on a random alcohol and
drug testing system for the first 90 days of his parole.



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Anders, counsel must file a brief that meets the requirements established

by our Supreme Court in Santiago. The brief 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.

Santiago, 978 A.2d at 361.       Counsel must also provide a copy of the

Anders brief to the appellant, 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), appeal denied, 936 A.2d 40 (Pa.2007).         Substantial

compliance with these requirements is sufficient.        Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the

antecedent requirements have been met, this Court must then make an

independent evaluation of the record to determine whether the appeal is, in

fact, wholly frivolous.”   Commonwealth v. Palm, 903 A.2d 1244, 1246

(Pa.Super.2006).

      Here, counsel filed a petition for leave to withdraw as counsel along

with an Anders brief and a letter advising Appellant of his right to obtain

new counsel or proceed pro se to raise any points he deems worthy of the


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court’s attention in addition to the ones raised in the Anders brief.       The

petition states counsel determined there were no non-frivolous issues to be

raised on appeal,4 notified Appellant of the withdrawal request, supplied him

with a copy of the Anders brief, and sent him 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.        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 issue raised on appeal, provides citations to

relevant case law, and states her conclusion that the appeal is wholly

frivolous and his reasons therefor. See Anders Brief, at 5-13. Accordingly,

counsel has substantially complied with the requirements of Anders and

Santiago.

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

privately-retained counsel, we review this appeal based on the issues raised

in the Anders brief:

          WHETHER     THE     SENTENCE IMPOSED   WAS
          INAPPROPRIATELY HARSH AND EXCESSIVE AND AN
          ABUSE OF DISCRETION?

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4
  Although the petition to withdraw does not state that counsel made an
extensive review of the record before determining Appellant had no issues of
arguable merit, she states in the Anders brief that she “made a
conscientious examination of the record and ultimately determined an
appeal would be wholly frivolous.” Anders Brief at 13.



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         WHETHER THE COURT FAILED TO CONSIDER THAT THE
         APPELLANT   IS   A   PRODUCT     OF    PARTICULAR
         CIRCUMSTANCES AND CONDITIONS OF ENVIRONMENT,
         BUT THAT THESE MATTERS WERE NOT FULLY AND
         COMPLETELY EXPRESSED AT THE TIME OF SENTENCING?

Anders Brief at 4.

      In both of his issues, Appellant challenges the discretionary aspects of

his sentence. He claims that his sentence was excessively harsh and that

the court failed to consider mitigating factors, specifically Appellant’s

environment and alcohol problem. Appellant’s issues merit no relief.

      Initially, Appellant has waived his claims by entering into a negotiated

guilty plea.      See Commonwealth v. Lincoln, 72 A.3d 606, 609

(Pa.Super.2013) (“Pennsylvania law makes clear that by entering a guilty

plea, the defendant waives his right to challenge on direct appeal all

nonjurisdictional defects except the legality of the sentence and the validity

of the plea.”).

      Even if not waived, challenges to the discretionary aspects of

sentencing do not entitle a petitioner to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011).         Before this Court can

address such a discretionary challenge, an appellant must comply with the

following requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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. [720]; (3) whether
      appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)

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        whether there is a substantial question that the sentence
        appealed from is not appropriate under the Sentencing Code.

Id.
        Presently, Appellant filed a timely notice of appeal and a post-sentence

motion.5 Further, Appellant’s brief includes a concise statement of reasons

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

of his sentence pursuant to Pa.R.A.P. 2119(f). See Anders Brief at 9-10.

We now must determine whether Appellant presents a substantial question

that the sentence appealed from is not appropriate under the Sentencing

Code.

        “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”            Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

          A substantial question exists only when the appellant
          advances a colorable argument that the sentencing judge’s
          actions were either: (1) inconsistent with a specific
          provision of the Sentencing Code; or (2) contrary to the
          fundamental norms which underlie the sentencing process.

Id. (internal citations omitted).


____________________________________________


5
  In his petition for reconsideration of sentence, Appellant requests that the
court reconsider his sentence due to conditions of his environment, but he
does not specifically challenge the excessiveness of his sentence.
Nevertheless, in light of Counsel’s petition to withdraw, we will proceed to
address whether Appellant raises a substantial question.                  See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super.2009) (observing
that Anders requires review of issues otherwise waived on appeal).




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      “An appellant making an excessiveness claim raises a substantial

question when he sufficiently articulates the manner in which the sentence

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

Sentencing Code or a particular fundamental norm underlying the sentencing

process.”        Commonwealth      v.   Raven,     97   A.3d    1244,    1253

(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations

omitted).

      Further,

         when an excessiveness claim is raised in cases where the
         sentence falls within the statutory limits, this Court is to
         review each claim on a case-by-case basis to determine
         whether a substantial question has been presented. The
         Supreme Court explained that while we need not accept
         bald allegations of excessiveness, where the appellant has
         provided a plausible argument that a sentence is contrary
         to the Sentencing Code or the fundamental norms
         underlying the sentencing process, a substantial question
         exists, requiring a grant of allowance of appeal of the
         discretionary aspects of the sentence.

Commonwealth v. Simpson, 829 A.2d 334, 337 (Pa.Super.2003) (citation

omitted).

      “[T]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.”   Commonwealth v. Disalvo, 70 A.3d 900, 903

(Pa.Super.2013) (internal citation omitted).




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       Accordingly, neither Appellant’s bald claim of excessiveness nor his

claim that the court failed to consider mitigating factors raises a substantial

question.6 See Simpson, supra; Disalvo, supra.

       Because Appellant does not raise a substantial question, we need not

address whether the court abused its discretion in the imposition of its

sentence.

       Further, after an independent review of the record, we agree with

Counsel that this appeal is wholly frivolous.

       Judgment of sentence affirmed.            Counsel’s petition to withdraw

granted.




____________________________________________


6
  Moreover, Appellant’s claims are devoid of merit. His sentence of 5 years
of intermediate punishment which includes only 90 days’ incarceration was
not only well within the guidelines which provide for 90 days to 5 years’
incarceration, but the mandatory minimum for a third offense tier 2 DUI
offense. Further, the court imposed $2,500.00 in fines, which was well
below the $10,000.00 it could have imposed. Additionally, the court was
aware that this was Appellant’s third DUI offense. Appellant’s counsel stated
at sentencing: “I know that he wants to take responsibility for this. I know
he’s sorry for what he’s done. You know, I think that he would indicate that
he’s had some issues in the past and I think he’s willing to take control of
those issues.” N.T., 10/9/14, at 6. Counsel and the court then asked
Appellant if he would like to speak to the court. Appellant said, “I’d like to
thank – I am guilty, sir.” Id. Appellant had his opportunity to speak and he
cannot now claim that the court failed to consider anything Appellant did not
raise.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2015




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