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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUSTIN ANGEL KING                          :
                                               :
                       Appellant               :   No. 1678 MDA 2017

          Appeal from the Judgment of Sentence Entered June 19, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000483-2016


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                         FILED OCTOBER 01, 2018

        In the process of being stopped by police for a Motor Vehicle Code

violation, Justin Angel King threw 49 bags of heroin out of his car window.

Notes of Testimony (“N.T.”), Sentencing Hearing, 06/19/17, at 3. Following a

jury trial, King was convicted of knowing and intentional possession of a

controlled substance (“K&I”).1 He now appeals from the judgment of sentence

entered on June 19, 2017, contending that the trial court abused its discretion

in sentencing him to six to 23 months’ incarceration. King’s counsel, John M.

Arose, Esq., has filed with this Court a petition to withdraw and an Anders2



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*    Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(16).

2   Anders v. California, 386 U.S. 738, 744 (1967).
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brief, on the grounds that King’s direct appeal is wholly frivolous. We grant

counsel’s petition to withdraw and affirm the judgment of sentence.

      The facts that led to King’s verdict are not dispositive of this appeal; so

we do not reiterate them. Following the guilty verdict for K&I, the trial court

ordered a Pre-Sentence Investigation (“PSI”) Report and set a date for

sentencing. At the sentencing hearing, the parties agreed that King’s prior

record score was four and the Sentencing Guidelines suggested a minimum

sentence of three to 14 months. After hearing from both parties, as well as

from King himself, the court imposed a sentence of six to 23 months’

incarceration. King filed a post-sentence motion, which the trial court denied.

After the trial court reinstated King’s direct appeal rights, King filed this timely

appeal.

      King raises one issue for this Court: “[W]hether the sentencing court

abused its discretion in sentencing [King] to a term of six (6) to twenty-three

(23) months of incarceration upon the conviction of simple possession?” King’s

Br. at 6.

      Before we can address the merits of King’s claim, we must first address

counsel’s request to withdraw. Commonwealth v. Daniels, 999 A.2d 590,

593 (Pa.Super. 2010). In order to withdraw from representing a criminal

defendant on appeal, “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

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reasons for concluding that the appeal is frivolous.” Commonwealth v.

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

        Here, Attorney Arose has satisfied all the requirements of Santiago. He

provided a summary of the procedural history and facts, with citations to the

record; set forth the single issue that he believes arguably supports the

appeal; explained why the appeal would be frivolous; and stated his reasons

for that conclusion. We also note that counsel has included with his petition to

withdraw a copy of a letter addressed to King informing him that counsel was

moving to withdraw, that an Anders brief has been filed with this Court, and

advising King of his right to retain new counsel or to proceed pro se in

response to the Anders brief, as required.3 See Commonwealth v.

Millisock, 873 A.2d 748, 751 (Pa.Super. 2005).

        We now conduct our own independent assessment of the record to

decide whether this appeal is frivolous and “if there are any additional, non-

frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa.Super. 2015).

        King’s contention on appeal challenges the discretionary aspects of

sentencing. We therefore must determine whether: (1) the appeal is timely,

(2) the instant issue was properly preserved, (3) the appellant’s brief contains




____________________________________________


3   King did not file a response to counsel’s Anders brief.



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a statement pursuant to Pa.R.A.P. 2119(f),4 and (4) there is a substantial

question that the sentence is not appropriate under the Sentencing Code.

Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa.Super. 2017).

       Here, King filed a timely Notice of Appeal. However, he failed to preserve

his claim of a manifestly excessive sentence in his post-sentence motion or at

the sentencing hearing. See Commonwealth v. Mann, 820 A.2d 788, 794

(Pa.Super. 2003) (challenges to discretionary aspects of sentencing must be

raised at sentencing hearing or in post-sentence motion). In his post-sentence

motion, he argued only that the trial court erroneously “substituted its finding

of fact in place of the [j]ury’s,” an argument that he abandons on appeal. See

Post-Sentence Motion, filed 06/26/17, at 3 (unpaginated). We therefore

conclude that King has waived this issue. See Pa.R.A.P. 302(a) (an issue not

raised before trial court is waived on appeal). Nevertheless, even if this issue

were properly preserved for appellate review, assuming it presents a

substantial question, the claim is wholly frivolous.

       King contends that the trial court imposed a sentence that was

“manifestly excessive such that it constitutes too severe a punishment.” King’s

Br. at 12. The trial court is given sound discretion when sentencing a

defendant and absent an abuse of discretion, we will not disturb its decision.
____________________________________________


4 “An appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. The statement shall immediately
precede the argument on the merits with respect to the discretionary aspects
of the sentence.” Pa.R.A.P. 2119(f).

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Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009). An abuse of

discretion is found where “the record discloses that the judgment exercised

was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-

will.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (quoting

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).

      Here, the trial court considered the PSI, King’s criminal history, and the

facts of the case. It also stated its reasons for the sentence imposed:

      This is geared with simply an accountability. If you would have
      had a stellar record, stayed in contact with pretrial services, I
      would have been in a better position to think that I could go out
      on a limb and give you an opportunity to go with supervision as
      opposed to a standard range sentence. . . . This is in the lower
      end of the standard range.

N.T., Sentencing Hearing, 6/19/17, at 10.

      King’s claim is wholly frivolous. Nothing in the record presents any basis

on which King could argue that the trial court’s judgment was “manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.” See Perry,

32 A.3d at 236. The sentence is within the Sentencing Guidelines and the trial

court considered all relevant factors before imposing sentence. Additionally,

our review of the record reveals no other non-frivolous issues counsel could

assert on King’s behalf. Therefore, we affirm the judgment of sentence and

grant counsel’s petition to withdraw.

      Judgment of sentence affirmed, counsel’s petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/01/2018




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