J-S34007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                        Appellee

                   v.

DAVID LEE CLOWNEY

                        Appellant                      No. 1798 MDA 2015


        Appeal from the Judgment of Sentence September 15, 2015
           In the Court of Common Pleas of Lackawanna County
            Criminal Division at No(s): CP-35-CR-0000958-2015


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                                FILED JUNE 14, 2016

     Appellant, David Lee Clowney, appeals from the judgment of sentence

entered September 15, 2015, in the Court of Common Pleas of Lackawanna

County, following his guilty plea to Driving Under the Influence (“DUI”),

Highest Rate of Alcohol (3d offense), 75 Pa.C.S.A. § 3802(c). Additionally,

Appellant’s court-appointed counsel, Donna M. De Vita, Esquire, has filed an

application to withdraw as counsel pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We affirm the judgment of sentence and grant counsel’s petition to

withdraw.

     On June 19, 2015, Appellant entered an open guilty plea to the

aforementioned   DUI    charge.     Following   a   review   of   a   pre-sentence

investigation report (“PSI”), the trial court sentenced Appellant to 16 to 36

months’ incarceration, followed by two years’ probation. Appellant filed a
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motion for reconsideration of sentence, which the trial court denied. This

timely appeal followed.

       As noted, Attorney De Vita has requested to withdraw and has

submitted an Anders brief in support thereof contending that Appellant’s

appeal is frivolous. The Pennsylvania Supreme Court has articulated the

procedure to be followed when court-appointed counsel seeks to withdraw

from representing an appellant on direct appeal:

        [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. 2009). Once counsel

has met her obligations, “it then becomes the responsibility of the reviewing

court to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.” Id. at 355 n.5 (citation omitted).

       Counsel has substantially complied with the technical requirements of

Anders as articulated in Santiago.1 Additionally, counsel confirms that she


____________________________________________


1
  While counsel did not include language in her petition to withdraw that she
reviewed the record and concluded that the appeal is without merit, she did
(Footnote Continued Next Page)


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sent a copy of the Anders brief to Appellant, as well as a letter explaining

that Appellant has the right to proceed pro se or the right to retain new

counsel. Counsel has appropriately appended a copy of the letter to the

motion to withdraw, as required by this Court’s decision in Commonwealth

v. Millisock, 873 A.2d 748 (Pa. Super. 2005). See also Commonwealth v.

Daniels, 999 A.2d 599, 594 (Pa. Super. 2010). Appellant has not filed a

response to the petition.

      We now proceed to examine the issues counsel sets forth in the

Anders brief:

      A. Whether the sentence imposed was inappropriately harsh and
         excessive and an abuse of discretion?

      B. Whether the lower 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.

      These claims constitute a challenge to the discretionary aspects of

Appellant’s sentence. Preliminarily, we must determine whether Appellant

has the right to seek permission to appeal the sentencing court’s exercise of

its discretion. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010). When an appellant challenges the discretionary aspects of his

sentence, we utilize a four-part test to determine:
                       _______________________
(Footnote Continued)

include that language in her letter to Appellant and in the Anders brief. See
Anders Brief at 13.


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      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Id. (citations omitted).

      Here, Appellant challenged his sentence in a post-sentence motion and

filed a timely appeal. Appellant’s brief also contains the requisite Rule

2119(f) concise statement. We must now decide whether Appellant’s

challenge to the discretionary aspects of his sentence raises a substantial

question.

      “A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

2015) (citation omitted). “[W]e cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015) (citation

omitted).

      Appellant alleges in his Rule 2119(f) statement that the trial court

inappropriately focused on his prior record score when it imposed his

sentence. Anders Brief at 10. What Appellant argues in his brief, however,

is that the sentence imposed was “inappropriately harsh and excessive and

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an abuse of discretion.” Id. This claim fails to raise a substantial question as

to the appropriateness of Appellant’s sentence. See Commonwealth v.

Fisher, 47 A.3d 155, 159 (Pa. Super. 2012) (“[A] bald assertion that a

sentence is excessive does not by itself raise a substantial question justifying

this Court's review of the merits of the underlying claim.”); Commonwealth

v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004) (defendant did not raise

substantial question by merely asserting sentence was excessive when he

failed to reference any section of Sentencing Code potentially violated by

sentence). To the extent that Appellant alternatively claims that his sentence

was excessive because the trial court failed to adequately consider his

“particular circumstance,” this claim also does not raise a substantial

question for our review. See Commonwealth v. Dodge, 77 A.3d 1263,

1272 n.8 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014)

(“Careful litigants should note that arguments that the sentencing court

failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question whereas a statement that the court failed to consider

facts of record, though necessarily encompassing the factors of § 9721, has

been rejected.”).

      Counsel concedes in the Anders brief that the trial court imposed a

standard range sentence. Anders Brief at 10. “[W]here a sentence is within

the standard range of the guidelines, Pennsylvania law views the sentence

as appropriate under the Sentencing Code.” Moury, 992 A.2d at 171

(internal citations omitted). Moreover, where, as here, the trial court has the

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benefit of a pre-sentence investigation report, “we can assume the

sentencing    court   was   aware   of    relevant     information   regarding   the

defendant’s   character     and   weighed      those   considerations   along    with

mitigating statutory factors.” Id. at 171 (internal citations omitted). Thus,

Appellant has not only failed to raise a substantial question for our review,

but his arguments are also unsupported by the evidence of record. We

therefore find no abuse of discretion in the trial court’s imposition of

sentence.

     After examining the issues contained in the Anders brief and after

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

     Judgment of sentence affirmed. Motion to withdraw as counsel

granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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