J-S44006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

EDWARD TERANTINO,

                            Appellant                        No. 44 EDA 2017


        Appeal from the Judgment of Sentence Entered August 6, 2015
               In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0001848-2013


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                             FILED OCTOBER 31, 2017

        Appellant, Edward Terantino, appeals nunc pro tunc from the August

6, 2015 judgment of sentence of 48 to 96 months’ incarceration.

Additionally, Appellant’s counsel, Hillary A. Madden, Esq., seeks to withdraw

her representation of Appellant. After careful review, we affirm Appellant’s

judgment of sentence and grant counsel’s petition to withdraw.

        In March of 2014, Appellant was convicted, following a jury trial, of

involuntary deviate sexual intercourse (of a person less than 16 years of

age) (hereinafter, “IDSI”), statutory sexual assault, and aggravated indecent

assault (of a person less than 16 years of age).1             Appellant’s convictions

stemmed      from    his    sexual   assault   of   his   14-year-old   stepdaughter

____________________________________________


1   18 Pa.C.S. §§ 3123(a)(7), 3122.1, and 3125(8), respectively.
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(hereinafter “the victim”) in June of 1998. Appellant was 46 years’ old at

the time of the assault.       Appellant’s abuse of the victim was not revealed

until September of 2013, during the investigation of Appellant’s kidnapping

the victim and her 5 year old daughter.2 Appellant was sentenced on May

30, 2014, to an aggregate term of 9 to 18 years’ incarceration, which

included a mandatory minimum sentence of 5 years’ incarceration, pursuant

to 42 Pa.C.S. § 9718, for Appellant’s IDSI conviction.

       Appellant filed a timely direct appeal and, while this Court found

meritless the sole issue he presented therein (a claim that the trial court

erred by allowing certain expert testimony), we sua sponte vacated

Appellant’s mandatory minimum sentence under section 9718, as that

statute has been struck down as unconstitutional in the wake of Alleyne v.

United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt).              See Commonwealth v. Terantino,

No. 2311 EDA 2014, unpublished memorandum at 6-8 (Pa. Super. filed April

14, 2015) (relying on Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
____________________________________________


2 Appellant’s charges stemming from the kidnapping were tried separately
from the present sexual offenses, and he was ultimately convicted by a jury
of false imprisonment, terroristic threats, simple assault, unlawful restraint,
endangering the welfare of a child, possessing an instrument of crime, and
resisting arrest. He was sentenced to an aggregate term of 4 to 8 years’
incarceration in that case, and this Court affirmed his judgment of sentence
on April 6, 2015. See Commonwealth v. Terantino, No. 1662 EDA 2014,
unpublished memorandum (Pa. Super. filed April 6, 2015).



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2014), aff’d by, 140 A.3d 651 (Pa. 2016) (holding that 42 Pa.C.S. § 9718 is

unconstitutional   pursuant    to   Alleyne)).   Accordingly,   we   remanded

Appellant’s case for resentencing.      See Terantino, No. 2311 EDA 2014,

unpublished memorandum at 8.

     On remand, the trial court resentenced Appellant on August 6, 2015,

to a term of 4 to 8 years’ incarceration for his IDSI conviction, and to a

concurrent term of 2 to 4 years’ incarceration for his aggravated indecent

assault offense.     His statutory sexual assault conviction merged for

sentencing purposes.

     Appellant filed a timely motion for reconsideration of his sentence,

which the court denied.       Appellant then filed a notice of appeal, but his

counsel at that time did not file a brief with this Court, resulting in

Appellant’s appeal being dismissed.      Thereafter, the trial court appointed

Appellant new counsel, Attorney Madden, who filed a petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the

restoration of Appellant’s right to appeal from his resentencing. On October

28, 2016, the court granted Appellant’s petition and reinstated his right to

file a direct appeal. On November 23, 2016, Attorney Madden filed the nunc

pro tunc notice of appeal that is presently before this Court.        Attorney

Madden also timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) statement, wherein she preserved the following three issues for our

review:




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       1. The trial court erred in denying [Appellant’s] Motion to
       Dismiss for lack of jurisdiction due to the expiration of the
       statute of limitations.

       2. The trial court erred in denying [Appellant’s] Motion to
       Dismiss due to staleness and pre-arrest delay in violation of
       [Appellant’s] constitutional rights to due process.

       3. The trial court abused its discretion in imposing an excessive
       sentence.

Pa.R.A.P. 1925(b) Statement, 12/14/16, at 1.

       On March 6, 2017, Attorney Madden filed with this Court a petition to

withdraw as counsel. Therein, Attorney Madden erroneously stated that she

was seeking to withdraw under Commonwealth v. Turner, 544 A.2d 927

(Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc),3 rather than Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).               Attorney

Madden also failed to comply with the Anders/Santiago requirement that

she advise the appellant of his right to “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). Accordingly, we concluded that Attorney Madden did

not satisfy the requirements of Anders/Santiago; therefore, we denied her

petition to withdraw and remanded for her to file either an advocate’s brief

on Appellant’s behalf, or a petition to withdraw and brief that complied with
____________________________________________


3 A Turner/Finley ‘no-merit’ letter is the appropriate filing when counsel
seeks to withdraw on appeal from the denial of PCRA relief. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).



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Anders/Santiago. Attorney Madden filed a new petition to withdraw and

an Anders/Santiago brief on August 25, 2017. Appellant has not filed any

pro se response.

     Accordingly, we now review Attorney Madden’s request to withdraw, as

     [t]his Court must first pass upon counsel's petition to withdraw
     before reviewing the merits of the underlying issues presented
     by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
     287, 290 (Pa. Super. 2007) (en banc).

     Prior to withdrawing as counsel on a direct appeal under
     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 also must provide a copy of
     the Anders brief to his client. Attending the brief must be a
     letter that advises the client of his 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, 594 Pa. 704, 936 A.2d 40
     (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

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review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”      Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      In this case, Attorney Madden’s Anders/Santiago brief complies with

the above-stated requirements.      Namely, she includes a summary of the

relevant factual and procedural history, she refers to portions of the record

that could arguably support Appellant’s claims, and she sets forth her

conclusion that Appellant’s appeal is frivolous. She also explains her reasons

for reaching that determination, and supports her rationale with citations to

the record and pertinent legal authority.     Attorney Madden states in her

petition to withdraw that she has supplied Appellant with a copy of the

Anders/Santiago brief she filed with this Court on August 25, 2017, and

she also attached a letter directed to Appellant in which she informs him of

each of the rights enumerated in Nischan. Accordingly, counsel has

complied with the technical requirements for withdrawal.          We will now

independently review the record to determine if Appellant’s issues are

frivolous, and to ascertain if there are any other non-frivolous issues

Appellant could pursue on appeal.

      Appellant’s first two issues - as set forth in his Rule 1925(b)

statement, quoted supra - seek to challenge the trial court’s denial of his

pretrial “Motion to Dismiss.” In that motion, Appellant argued that the court

should dismiss all the charges filed against him “because (1) the statute of

limitations has expired and (2) the filing of the information was a violation of

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his right to due process because of staleness.” Trial Court Opinion, 1/23/14,

at 1.

        We agree with Attorney Madden that it would be frivolous to raise

these claims on appeal, although for a different reason than that expressed

by counsel in her Anders/Santiago brief. See Anders/Santiago Brief at

18-22 (concluding that Appellant’s claims are frivolous because the statute

of limitations had not run on his offenses, and because he cannot

demonstrate that the delay in filing the charges against him was the fault of

the Commonwealth). This Court has held that, “where a case is remanded

to resolve a limited issue, only matters related to the issue on remand may

be appealed.” Commonwealth v. Lawson, 789 A.2d 252, 253 (Pa. Super.

2001).    Here, a previous panel of this Court explicitly affirmed Appellant’s

convictions, but remanded his case for the limited purpose of resentencing

him without application of the mandatory minimum sentence set forth in 42

Pa.C.S. § 9718.       See Terantino, No. 2311 EDA 2014, unpublished

memorandum at 8. Therefore, in the present appeal following that remand,

Appellant may only raise issues concerning his resentencing; he cannot

argue that the trial court erred by denying his pretrial motion to dismiss the

charges pending against him.     Accordingly, Appellant’s first two issues are

frivolous.

        In Appellant’s third issue, he seeks to argue that his sentence is

excessive.




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     This issue concerns a challenge to the discretionary aspects of
     Appellant's sentence. A challenge to the discretionary aspects of
     sentencing does not entitle an appellant to review as of right.
     Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
     2011) 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);5 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). Commonwealth v. Evans, 901 A.2d 528,
     533 (Pa. Super. 2006).
         5  In pertinent part, this Rule requires an appellant
         challenging the discretionary aspects of his sentence to set
         forth in his brief a concise statement of the reasons relied
         upon for allowance of appeal with respect to the
         discretionary aspects of the sentence; such statement shall
         immediately precede the argument on the merits.
         Pa.R.A.P. 2119(f).

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super.

2016).

     In the present case, Appellant filed a timely notice of appeal, and he

also preserved the following sentencing issue in his timely-filed post-

sentence motion: “[Appellant] believes the sentence imposed is excessive

base upon mitigating circumstances and the inconsistent jury verdict.”

Petition for Reconsideration of Sentence, 8/13/15, at 1.    Attorney Madden

has not included a Rule 2119(f) statement in her Anders/Santiago brief;

however, “[w]here counsel files an Anders[/Santiago] brief, this Court has

reviewed the matter even absent a separate Pa.R.A.P. 2119(f) statement.

Hence, we do not consider counsel's failure to submit a Rule 2119(f)


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statement as precluding review of whether Appellant's issue is frivolous.”

Bynum-Hamilton, 135 A.3d at 184 (citation omitted).

     Upon reviewing the record of Appellant’s resentencing hearing, we

agree with Attorney Madden that his sentencing claim is frivolous. To begin,

we note that,

     [o]ur review of discretionary aspects of sentencing claims
     implicates the following principles:

        [T]he proper standard of review when considering whether
        to affirm the sentencing court's determination is an abuse
        of discretion....

        [A]n abuse of discretion is more than a mere error of
        judgment; thus, a sentencing court will not have abused
        its discretion unless the record discloses that the judgment
        exercised was manifestly unreasonable, or the result of
        partiality, prejudice, bias or ill-will.... An abuse of
        discretion may not be found merely because an appellate
        court might have reached a different conclusion, but
        requires a result of manifest unreasonableness, or
        partiality, prejudice, bias, or ill-will, or such lack of support
        so as to be clearly erroneous.... The rationale behind such
        broad discretion and the concomitantly deferential
        standard of appellate review is that the sentencing court is
        in the best position to determine the proper penalty for a
        particular offense based upon an evaluation of the
        individual circumstances before it.

     Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
     (2007) (internal citations omitted).

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).

     As Attorney Madden points out, in this case Appellant received a

sentence of 4 to 8 years’ (or 48 to 96 months’) incarceration for his

involuntary deviate sexual intercourse conviction. The standard range of the

applicable sentencing guidelines is a minimum term of 48 to 66 months’

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imprisonment.     Therefore, Appellant’s sentence was at the low-end of the

standard range, which is precisely what defense counsel requested at the

resentencing hearing.        See N.T. Resentencing Hearing, 8/6/15, at 3.

Moreover, in fashioning this standard range sentence, the court explicitly

stated that it considered the presentence report; thus, “we are required to

presume that the court properly weighed the mitigating factors present in

this case.”   Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super.

2006). We also reiterate that the court imposed a concurrent - rather than

consecutive - term of 2 to 4 years’ incarceration for Appellant’s aggravated

indecent assault conviction, and no sentence was imposed for his statutory

sexual assault offense, as it merged with his other convictions.          Thus, we

ascertain nothing ‘clearly unreasonable’ about the court’s standard-range

sentence in this case. See 42 Pa.C.S. § 9781(c)(2) (stating that we must

vacate the sentence and remand only where “the sentencing court

sentenced     within   the   sentencing   guidelines   but   the   case    involves

circumstances where the application of the guidelines would be clearly

unreasonable”).

      We recognize that Appellant’s aggregate sentence in this case was

imposed to run consecutively to the sentence imposed in his kidnapping-

related case involving the victim and her daughter.          At the resentencing

hearing, the court explained that it “felt that there should be a consecutive

sentencing because there were two separate and distinct crimes.”              N.T.

Resentencing Hearing at 8.       This Court has explained that, “[g]enerally,

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Pennsylvania law affords the sentencing court discretion to impose its

sentence concurrently or consecutively to other sentences being imposed at

the same time or to sentences already imposed.         Any challenge to the

exercise of this discretion ordinarily does not raise a substantial question.”

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted). Having reviewed the record in this case, we see nothing atypical

about the court’s decision to impose Appellant’s current sentence to run

consecutively to his other term of incarceration. Appellant’s criminal conduct

in the kidnapping-related case was wholly separate from his instant

offenses, both substantively and temporally.      Therefore, nothing in the

record suggests that the court abused its discretion by imposing Appellant’s

present sentence to run consecutively to the term of incarceration in his

other case.

      In sum, we agree with Attorney Madden that the issues Appellant

seeks to present on appeal are frivolous. Accordingly, we affirm Appellant’s

judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017

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