J-S24035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

EDWIN COLON-RODRIGUEZ

                            Appellant                No. 1475 MDA 2015


             Appeal from the Judgment of Sentence July 27, 2015
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0004468-2014;
             CP-06-CR-0004472-2014; CP-06-CR-0004473-2014;
             CP-06-CR-0004477-2014; CP-06-CR-0004478-2014


BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JUNE 13, 2016

        Appellant, Edwin Colon-Rodriguez, appeals from the judgment of

sentence entered in the Berks County Court of Common Pleas, following his

open guilty plea to six counts of delivery of a controlled substance and two

counts of conspiracy.1 We affirm and grant counsel’s petition to withdraw.

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

Appellant sold drugs to an undercover police officer on July 17, 2013,

December 12, 2013, December 19, 2013, January 22, 2014, and February 4,

2014.     Police arrested Appellant for the five drug transactions, and the

Commonwealth charged him with various drug-related crimes at five
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1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(a)(1), respectively.
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separate dockets.   Specifically, the Commonwealth charged Appellant with

the following offenses: at docket # CP-06-CR-0004478-2014, delivery of a

controlled substance, possession with intent to deliver a controlled substance

(“PWID”), and possession of a controlled substance, in connection with the

July 17, 2013 drug transaction; at docket # CP-06-CR-0004468-2014,

delivery of a controlled substance, PWID, and possession of a controlled

substance, in connection with the December 12, 2013 drug transaction; at

docket # CP-06-CR-0004472-2014, one count each of delivery of a

controlled substance, PWID, and possession of a controlled substance, and

three counts of conspiracy, in connection with the December 19, 2013 drug

transaction; at docket # CP-06-CR-0004477-2014, two counts each of

delivery of a controlled substance, PWID, and possession of a controlled

substance, and six counts of conspiracy, in connection with the January 22,

2014 drug transaction; and at docket # CP-06-CR-0004473-2014, delivery

of a controlled substance, PWID, and possession of a controlled substance,

in connection with the February 4, 2014 drug transaction.

     On July 27, 2015, Appellant entered an open guilty plea to six counts

of delivery of a controlled substance and two counts of conspiracy, in

exchange for the Commonwealth’s request that the court dismiss the

remaining charges against Appellant.     With the benefit of a pre-sentence

(“PSI”) report, the court immediately sentenced Appellant to an aggregate

term of eight (8) to twenty (20) years’ imprisonment.       The court imposed


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some of the sentences for Appellant’s convictions consecutively.          At

Appellant’s sentencing hearing, trial counsel objected to the court’s use of

Appellant’s prior PWID conviction to increase his prior record score because

the prior PWID conviction also subjected Appellant to a discretionary

sentencing enhancement under 35 P.S. § 780-115(a). The court overruled

trial counsel’s objection.    The   court, however, did     not invoke   the

discretionary sentencing enhancement and used Appellant’s prior PWID

conviction only in the calculation of Appellant’s prior record score.    The

sentence imposed was substantially less than the statutory maximum

without consideration of the discretionary sentencing enhancement.

     On July 28, 2015, Appellant filed a post-sentence motion in which he

complained the court improperly double counted his prior PWID conviction

when it imposed his sentence.     The court denied the motion on July 29,

2015. On August 19, 2015, trial counsel filed a petition to withdraw, which

the court granted on August 20, 2015.        When the court granted trial

counsel’s petition to withdraw, the court appointed new counsel to represent

Appellant on direct appeal. Appellate counsel timely filed a notice of appeal

on August 27, 2015. On September 4, 2015, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Appellant timely complied on September 24, 2015.

On December 21, 2015, appellate counsel filed a petition for leave to

withdraw and Anders brief with this Court.


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       As a preliminary matter, 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, 602 Pa. 159, 978 A.2d 349

(2009). Anders and Santiago require counsel to: 1) petition the Court for

leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; 2) file a

brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.          Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon2 requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *
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2
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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         Under Anders, the right to counsel is vindicated by
         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that
         arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, appellate counsel filed a petition to withdraw. The petition

states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or to proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention. (See Letter to Appellant, dated 12/21/16,

attached to Petition for Leave to Withdraw as Counsel.) In the Anders brief,

counsel provides a summary of the facts and procedural history of the case.

Counsel’s argument refers to relevant law that might arguably support

Appellant’s issues.   Counsel further states the reasons for her conclusion

that the appeal is wholly frivolous.     Therefore, counsel has substantially

complied with the requirements of Anders and Santiago.

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      Counsel raises the following issue on Appellant’s behalf:

         WHETHER THE SENTENCING COURT ABUSED ITS
         DISCRETION WHEN IT IMPOSED AN EXCESSIVE
         SENTENCE THAT IMPROPERLY DOUBLE COUNTED A PRIOR
         CONVICTION UNDER 35 [P.S.] § 780-113(A)(30), WHERE:

               FIRST, THE SENTENCING COURT ERRONEOUSLY
               UTILIZED  [APPELLANT’S]   PRIOR   CONVICTION
               UNDER 35 [P.S.] § 780-113(A)(30) TO INCREASE
               HIS PRIOR RECORD SCORE TO FIVE (5), WITHOUT
               THAT INCLUSION, [APPELLANT’S] PRIOR RECORD
               SCORE WOULD BE A THREE (3) PURSUANT TO THE
               SENTENCING GUIDELINES.

               SECOND, THE SENTENCING COURT UTILIZED
               [APPELLANT’S] PRIOR CONVICTION UNDER 35 [P.S.]
               § 780-113(A)(30) TO IMPOSE A SENTENCING
               ENHANCEMENT UNDER 35 P.S. § 780-115(A) THAT
               INCREASED THE MAXIMUM PENALTY, CONSIDERING
               THE PRIOR CONVICTION AS AN ELEMENT OF THE
               CURRENT OFFENSES.

(Anders Brief at 12).

      Appellant argues the court improperly double counted his prior PWID

conviction under 35 P.S. § 780-113(a)(30), when it imposed Appellant’s

sentence. Appellant asserts the court first used his prior PWID conviction to

increase his prior record score to five, which increased the sentencing

guideline ranges for Appellant’s convictions. Appellant also avers the court

used his prior PWID conviction to impose a discretionary sentencing

enhancement under 35 P.S. § 780-115(a), which doubled the statutory

maximum sentence for each of Appellant’s delivery of a controlled substance

convictions.    Appellant further complains the court considered Appellant’s

prior PWID conviction again when it chose to impose some of Appellant’s

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sentences     consecutively.       Appellant     concludes    the   court’s   erroneous

consideration of his prior PWID conviction multiple times at sentencing made

his sentence excessive, and we should vacate and remand for resentencing.

As   presented,     Appellant    challenges      the   discretionary   aspects   of   his

sentence.3 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)

(stating claim that sentence is manifestly excessive challenges discretionary

aspects of sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

aspects of sentencing issue:

          [W]e conduct a four-part analysis to determine: (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).

____________________________________________


3
  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his...sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”      Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
guilty plea included no negotiated sentence.



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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary

aspects of sentence are generally waived if they are not raised at the

sentencing hearing or raised in a motion to modify the sentence imposed at

that hearing.    Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

        When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,

112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),

cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).

        The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the

appellant advances a colorable argument that the sentencing judge’s actions


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were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Sierra, supra at 913. A claim of excessiveness can

raise a substantial question as to the appropriateness of a sentence under

the Sentencing Code, even if the sentence is within the statutory limits.

Mouzon, supra at 430, 812 A.2d at 624.        Importantly, a claim that the

court double-counted a defendant’s prior record raises a substantial

question.   Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa.Super.

2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000).

Additionally:

         Pennsylvania law affords the sentencing court discretion to
         impose [a] 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 does not raise a substantial question. In fact,
         this Court has recognized the imposition of consecutive,
         rather than concurrent, sentences may raise a substantial
         question in only the most extreme circumstances, such as
         where the aggregate sentence is unduly harsh, considering
         the nature of the crimes and the length of imprisonment.

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

denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation

marks omitted).

      Here, Appellant properly preserved his discretionary aspects of

sentencing claim in his post-sentence motion and Rule 2119(f) statement;

and his claim that the court double counted his prior PWID conviction

appears to raise a substantial question as to the discretionary aspect of his

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sentence. See Goggins, supra.

      Our standard of review of a challenge to the discretionary aspects of

sentencing is as follows:

         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.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).

      Pursuant to Section 9721(b), “the court shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.”        42 Pa.C.S.A. § 9721(b).       “[T]he

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

imposed.”   Id.   Nevertheless, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question….” Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475


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(2010). Rather, the record as a whole must reflect the sentencing court’s

consideration of the facts of the case and the defendant’s character. Id. “In

particular, the court should refer to the defendant’s prior criminal record, his

age,   personal   characteristics   and   his   potential   for   rehabilitation.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal

denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148,

125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). As a general rule, “a sentencing

court may not ‘double count’ factors already taken into account in the

sentencing guidelines.” Goggins, supra at 732. Nevertheless, “courts are

permitted to use prior conviction history and other factors included in the

guidelines if, they are used to supplement other extraneous sentencing

information.”     Commonwealth v. Shugars,            895 A.2d      1270, 1275

(Pa.Super. 2006).

       Instantly, the record belies Appellant’s contentions. At sentencing, the

court determined Appellant’s prior record score was five based partially on

Appellant’s prior PWID conviction.    The court then proceeded to sentence

Appellant to an aggregate term of eight (8) to twenty (20) years’

imprisonment. Significantly, Appellant’s sentence at each count was within

the recommended sentencing guidelines and well below the statutory

maximum penalty without consideration of the discretionary sentencing

enhancement under 35 P.S. § 780-115(a). Thus, the record demonstrates

the court considered Appellant’s prior PWID conviction once to calculate


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Appellant’s prior record score.

      Additionally, there is no merit to Appellant’s claim that the court

improperly considered Appellant’s prior PWID conviction when the court

imposed some of Appellant’s sentences consecutively.     The court had the

benefit of a PSI report at sentencing.      Therefore, we can presume it

considered the relevant factors when it sentenced Appellant.   See Tirado,

supra at 368 (holding where sentencing court had benefit of PSI, law

presumes court was aware of and weighed relevant information regarding

defendant’s character and mitigating factors). The court also stated on the

record that it considered the information in the PSI report, the fact that

Appellant pled guilty, the sentencing guidelines, Appellant’s prior record,

Appellant’s statement at sentencing, and trial counsel’s statement at

sentencing, when it imposed Appellant’s sentences.       The court further

indicated it imposed some of Appellant’s sentences consecutively to hold

Appellant accountable for his actions and to provide Appellant access to the

drug and alcohol treatment programs in prison.    Thus, the court relied on

many factors other than Appellant’s prior PWID conviction when it imposed

some of Appellant’s sentences consecutively.

      Therefore, the court did not erroneously consider Appellant’s prior

PWID conviction multiple times at sentencing, and Appellant’s claim that the

court double counted his prior PWID conviction merits no relief.        See

Shugars, supra.      Accordingly, we affirm the judgment of sentence and


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grant counsel’s petition to withdraw.

      Judgment of sentence      affirmed; counsel’s petition   to   withdraw

granted.

      Judge Musmanno joins this memorandum.

      Judge Bowes files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2016




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