J-S03042-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
JASON EARL CAMPBELL,                     :
                                         :
                 Appellant               :     No. 1277 WDA 2016

           Appeal from the Judgment of Sentence June 21, 2016
               in the Court of Common Pleas of Erie County,
           Criminal Division, at No(s): CP-25-CR-0000731-2016

BEFORE:    OLSON, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED MARCH 17, 2017

     Jason Earl Campbell (Appellant) appeals from his June 21, 2016

aggregate judgment of sentence of 174 to 348 months of imprisonment

entered after he pled guilty to attempted homicide and firearms not to be

carried without a license.   Counsel has filed a petition to withdraw and a

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

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

     We glean the following facts from the record. Appellant had some sort

of relationship with the victim’s wife. On October 25, 2015, in the middle of

the night, Appellant kicked down the door of the victim’s home, brandishing

a semi-automatic handgun and “not really making a whole lot of sense.”

N.T., 6/21/2016, at 10. See also N.T., 4/27/2016, at 6. While the victim’s

wife attempted to calm Appellant and get him out of the house, Appellant


*Retired Senior Judge assigned to the Superior Court.
J-S03042-17


pointed his gun over her shoulder and shot the victim “at point blank range

in the face.”1 Id. at 10-11. Appellant did not have a license for the firearm,

which he concealed en route to victim’s house. N.T., 4/27/2016, at 6.

      Appellant entered his guilty pleas on April 27, 2016.          He was

sentenced on June 21, 2016, to a standard-range sentence of 150 to 300

months for the attempted homicide, with a consecutive standard-range

sentence of 24 to 28 months for the firearms violation.      Appellant timely

filed a post-sentence motion seeking a sentence reduction, and timely filed a

notice of appeal following the denial of his motion. The trial court ordered

the filing of a statement of errors complained of on appeal. Counsel instead

filed a statement of intent to file an Anders brief pursuant to Pa.R.A.P.

1925(c)(4).

      In this Court, counsel filed both an Anders brief and a petition to

withdraw as counsel. Accordingly, the following principles guide our review.

             Direct appeal counsel seeking to withdraw under Anders
      must file a petition averring that, after a conscientious
      examination of the record, counsel finds the appeal to be wholly
      frivolous. Counsel must also file an Anders brief setting forth
      issues that might arguably support the appeal along with any
      other issues necessary for the effective appellate presentation
      thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the



1
  The victim survived the shooting, but “spent a lot of time in the hospital.”
N.T., 6/21/16, at 11. Although he lost an eye, he retained “all or most of his
cognitive functions.” Id.

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        right to retain new counsel, proceed pro se or raise any
        additional points worthy of this Court’s attention.

               If counsel does not fulfill the aforesaid technical
        requirements of Anders, this Court will deny the petition to
        withdraw and remand the case with appropriate instructions
        (e.g., directing counsel either to comply with Anders or file an
        advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
        petition and brief satisfy Anders, we will then undertake our
        own review of the appeal to determine if it is wholly frivolous. If
        the appeal is frivolous, we will grant the withdrawal petition and
        affirm the judgment of sentence. However, if there are non-
        frivolous issues, we will deny the petition and remand for the
        filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Further, our Supreme Court has specified the following

requirements for the Anders brief:

        [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.

Santiago, 978 A.2d at 361.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical    requirements    set   forth    above.2   Thus,   we   now   have   the



2
    Appellant has not filed a response to counsel’s petition to withdraw.


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responsibility “‘to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.

2015) (quoting Santiago, 978 A.2d at 354 n. 5).

     In his Anders brief, counsel states the following question for this

Court’s review: “Whether [A]ppellant’s sentence is manifestly excessive,

clearly unreasonable and inconsistent with the objectives of the Sentencing

Code?” Anders Brief at 3.

     We consider this question mindful of the following.

     Sentencing is a matter vested in the sound discretion of the
     sentencing judge, and a sentence will not be disturbed on appeal
     absent a manifest abuse of discretion. In this context, an abuse
     of discretion is not shown merely by an error in judgment.
     Rather, the appellant must establish, by reference to the record,
     that the sentencing court ignored or misapplied the law,
     exercised its judgment for reasons of partiality, prejudice, bias
     or ill will, or arrived at a manifestly unreasonable decision.

                                    ***

           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.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

     An appellant is not entitled to the review of challenges to the
     discretionary aspects of a sentence as of right. Rather, an
     appellant challenging the discretionary aspects of his sentence
     must invoke this Court’s jurisdiction. We determine whether the


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      appellant has invoked our jurisdiction by considering the
      following four factors:

            (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) 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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant filed a notice of appeal after preserving the issue by

filing a motion to modify sentence, and the Anders brief contains a

statement pursuant to Pa.R.A.P. 2119(f). We thus consider whether there is

a substantial question that Appellant’s sentence is inappropriate.

      Appellant contends that his sentence is manifestly excessive in light of

the   mitigating   factors   present:   his   youth,   his   acknowledgment     of

responsibility, and his rehabilitative potential.      Anders Brief at 7.     This

amounts to a claim that the sentencing court failed to give as much weight

as Appellant would have wished to mitigating factors. Such a claim does not

present a substantial question for our review.3              Commonwealth v.



3
  Although a sentencing court’s failure to consider altogether the mitigating
factors does present a substantial question, Commonwealth v. Raven, 97
A.3d 1244, 1253 (Pa. Super. 2014), the sentencing court here had the
benefit of a presentence investigation report and thus is presumed to have
considered all relevant information. Commonwealth v. Boyer, 856 A.2d

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Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[A] claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.” (citation and quotation marks omitted)).

     Thus, we agree with counsel that Appellant’s issue regarding the

length of his sentence is frivolous.    Moreover, we have conducted “a full

examination of the proceedings” and conclude that “the appeal is in fact

wholly frivolous.”4 Flowers, 113 A.3d at 1248. Accordingly, we affirm the

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: 3/17/2017




149, 154 (Pa. Super. 2004). Furthermore, the sentencing court stated on
the record that it considered the evidence Appellant offered at the
sentencing hearing, including his acceptance of responsibility.    N.T.,
6/21/2016, at 12.
4
  We reviewed the record mindful of the fact that by entering a guilty plea,
Appellant waived all claims and defenses other than the jurisdiction of the
court, the validity of the plea, the legality of his sentence, and the
discretionary aspects of his sentence not set by the plea agreement.
Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014);
Commonwealth v. Titus, 816 A.2d 251, 254 n.3 (Pa. Super. 2003).

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