J-S33033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOHNATHAN MATTHEWS

                            Appellant              No. 1568 WDA 2015


         Appeal from the Judgment of Sentence September 22, 2015
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0000117-2015


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                          FILED MAY 05, 2016

       Appellant, Johnathan Matthews, appeals from the         judgment of

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

open guilty plea to robbery, access device fraud, unlawful restraint, and

unauthorized use of automobiles.1 We affirm and grant counsel’s petition to

withdraw.

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

On November 10, 2014, Appellant grabbed Audrey Stadler (“Victim”) by the

throat and forced her into the stairwell of her apartment building at

gunpoint.     Appellant subsequently threatened Victim and demanded that
____________________________________________


1
  18 Pa.C.S.A. §§ 3701(a)(1)(iii), 4106(a)(1), 2902(a)(1), and 3928(a),
respectively.


___________________________

*Former Justice specially assigned to the Superior Court.
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Victim hand over her apartment keys, cell phone, and a set of car keys.

Victim complied with Appellant’s demands.    Upon realizing that Victim had

no money with her, Appellant forced Victim upstairs to her apartment to

retrieve her ATM card. After Victim retrieved her ATM card, Appellant forced

Victim into her boyfriend’s car using the car keys Appellant had taken from

Victim.    Appellant proceeded to drive Victim to Northwest Savings Bank,

where Victim withdrew one hundred and sixty dollars ($160.00) from her

account and gave it to Appellant. Appellant then drove Victim back to her

apartment building and fled the scene.

      On February 20, 2015, the Commonwealth charged Appellant with

kidnapping, terroristic threats, simple assault, theft by unlawful taking,

receiving stolen property, robbery of a motor vehicle, access device fraud,

unlawful restraint, unauthorized use of automobiles, and three counts of

robbery.    On July 7, 2015, Appellant entered an open guilty plea to one

count each of robbery, access device fraud, unlawful restraint, and

unauthorized use of automobiles, in exchange for the Commonwealth’s

request that the court enter nolle prosequi on the remaining charges against

Appellant. The court deferred sentencing pending the preparation of a pre-

sentence investigation (“PSI”) report.

      On September 22, 2015, the court sentenced Appellant to concurrent

terms of sixty (60) to one hundred and forty four (144) months’

incarceration for the robbery conviction, nineteen (19) to sixty (60) months’


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incarceration for the access device fraud conviction, seventeen (17) to sixty

(60) months’ incarceration for the unlawful restraint conviction, and nine (9)

to twenty-four (24) months’ incarceration for the unauthorized use of

automobiles conviction.    The sentence imposed for each conviction was in

the aggravated range of the sentencing guidelines.         At the sentencing

hearing, the court stated on the record that it imposed aggravated range

sentences because: (1) the offenses involved threats of violence and taking

items by force; (2) Appellant has multiple convictions in two other states;

and (3) Appellant was on supervision in two other states when he committed

the instant offenses.     The court further explained it decided to impose

Appellant’s sentences concurrently because Appellant came forward and took

responsibility for his actions by pleading guilty.   On September 24, 2015,

Appellant timely filed a post-sentence motion, which the court denied on

September 25, 2015. On October 6, 2015, Appellant’s counsel timely filed a

notice of appeal and a statement of intent to file an Anders brief pursuant

to Pa.R.A.P. 1925(c)(4). On January 21, 2016, counsel filed an Anders brief

and a petition for leave to withdraw as counsel with this Court.

      As a preliminary matter, counsel seeks to withdraw his 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,


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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.

                                       *       *   *

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



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         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, 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 1/19/16, 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.

      Counsel raises the following issue on Appellant’s behalf:

         WHETHER...APPELLANT’S SENTENCE IS MANIFESTLY
         EXCESSIVE,     CLEARLY     UNREASONABLE,    AND
         INCONSISTENT    WITH   THE  OBJECTIVES   OF THE
         SENTENCING CODE?

(Anders Brief at 3).


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       Appellant    argues    the    court     failed   to   consider   properly   certain

mitigating factors when it sentenced Appellant in the aggravated range of

the sentencing guidelines for each offense. Appellant specifically contends

that his guilty plea and apology to the Victim negated the need for an

aggravated range sentence.            Appellant also avers the court could have

achieved the objectives of the Pennsylvania Sentencing Code without the

imposition of sentences in the aggravated range of the sentencing

guidelines.     Appellant concludes the court’s failure to consider these

mitigating factors makes his sentences excessive, unreasonable, and

inconsistent with the objectives of the Pennsylvania Sentencing Code, 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

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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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910 (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).

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


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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

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, an appellant’s

allegation that the sentencing court imposed an aggravated range sentence

without consideration of mitigating circumstances raises a substantial

question.   Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.

2003) (en banc).

      Here, Appellant properly preserved his discretionary aspects of

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

and this claim appears to raise a substantial question as to the discretionary

aspects of his sentence. See Felmlee, supra.

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


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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

(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


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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).

       Instantly, 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).

Additionally, the court stated on the record that it considered the Sentencing

Code, the Pennsylvania sentencing guidelines, Appellant’s character, and the

seriousness of the     offenses when it imposed Appellant’s sentences.

Specifically, the court indicated it decided to sentence Appellant in the

aggravated range because of the violent nature of the offenses, Appellant’s

multiple convictions in two other states, and the fact that Appellant

committed the current offenses while under supervision in two other states.

Significantly, the court also accounted for Appellant’s apology to Victim, and

the fact that Appellant took responsibility for his actions, by imposing

Appellant’s sentences concurrently.       Under these circumstances, the court

adequately considered the relevant mitigating factors when it imposed

Appellant’s sentences.     Therefore, Appellant’s discretionary aspects of


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sentencing claim merits no relief.      See Hyland, supra.   Accordingly, we

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

     Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

     Fitzgerald, J. joins this memorandum.

     Olson, J. concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2016




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