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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
DANIEL J. COULTER, JR.                      :
                     APPELLANT              :
                                            :
                                            :     No. 1599 MDA 2016

            Appeal from the Judgment of Sentence August 25, 2015
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003126-2006

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                                 FILED MAY 18, 2017

        Appellant seeks review of the Judgment of Sentence imposed after he

pled guilty to two charges of Driving While Under the Influence (“DUI”) and

Driving with a Suspended License.1 Appellant’s counsel has filed an Anders2

Brief and a Petition to Withdraw. We affirm the Judgment of Sentence, and

grant counsel’s Petition to Withdraw.



*
    Former Justice specially assigned to the Superior Court.
1
  Appellant filed his appeal from the August 4, 2016 Order denying his
Motion for Reconsideration. In the criminal context, an appeal properly lies
from the Judgment of Sentence, not an order denying post-sentence
motions. Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super.
2003) (en banc). The caption, thus, reflects that this Appeal is from the
August 25, 2015 Judgment of Sentence.
2
    Anders v. California, 386 U.S. 738 (1967).
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         Appellant entered an open guilty plea on October 29, 2007, to Driving

Under the Influence – General impairment, Driving Under the Influence –

Highest rate of alcohol, and Driving While BAC .02 or Greater While License

Suspended.3      The court scheduled sentencing for January 22, 2008, but

Appellant failed to appear and the court issued a bench warrant. Eight years

later, Appellant was arrested on the outstanding bench warrant.

         On August 25, 2015, the court sentenced Appellant as a second DUI

offender with a prior record score of a repeat felony offender (“RFEL”) to,

inter alia, an aggregate term of incarceration of 24 to 48 months. Appellant

filed a timely Petition pursuant to the Post Conviction Relief Act (“PCRA”)

seeking reinstatement of his post-sentence rights.         The court appointed

counsel,     subsequently    held   a   hearing   on   Appellant’s   Motion   for

Reconsideration of his sentence, and denied the Motion on August 4, 2016.

However, the court amended Appellant’s sentence to reflect that he is

eligible to apply for work release.

         On September 13, 2016, the court reinstated Appellant’s appeal rights

nunc pro tunc and he filed a Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

         Counsel raised the following issue on Appellant’s behalf in the Anders

brief:


3
  75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(c), and 75 Pa.C.S. §
1543(b)(1.1)(i), respectively.



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      Whether the trial court abused its discretion in sentencing the
      Defendant as a repeat felony offender based on an incorrect
      prior record score?

Anders Brief at 3.

      Appellant filed a pro se response to the Anders Brief, in which he

asserts, for the first time, that the court miscalculated his prior record score

because it took into account his pre-1988 felony convictions.        He avers,

without citation to supporting authority, that those convictions should not

have been considered because the sentencing guidelines were not effective

until 1988.4 See Response to Counsel’s Petition [to] Withdraw and Anders

Brief, filed 3/13/17, at 3 (unpaginated).

Anders Brief

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”   Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

4
  “The initial sentencing guidelines went into effect on July 22, 1982 and
applied to all crimes committed on or after that date. Amendments to the
guidelines went into effect in June 1983, January 1986 and June 1986. On
October 7, 1987 the Pennsylvania Supreme Court invalidated the guidelines
due to a procedural error that occurred in 1981 when the legislature rejected
the first set of guidelines. New guidelines were drafted and became effective
on April 25, 1988. Amendments to the guidelines went into effect August 9,
1991 and December 20, 1991. Revised sets of guidelines became effective
August 12, 1994, June 13, 1997, June 3, 2005, December 5, 2008, and
December 28, 2012.          Amendments to the guidelines went into effect
September 27, 2013, and September 26, 2014[,]” and September 25, 2015.
204 Pa. Code 303.1(c)(2). The legislature is considering proposed changes
which will go into effect in 2018. See 2017 PA REG TEXT 454356 (NS).




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2010) (citation omitted). In order for counsel to withdraw from an appeal

pursuant to Anders, our Supreme Court has determined that counsel must

meet certain requirements, including:

      (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).

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client:

      Counsel also must provide a copy of the Anders brief to his
      client. Attending the brief must be a letter that advises the
      client of his right to: (1) retain new counsel to pursue the
      appeal; (2) proceed pro se on appeal; or (3) raise any points
      that the appellant deems worthy of the court’s attention in
      addition to the points raised by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).       “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”          Commonwealth v.


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Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quotation marks

and citation omitted).   Further, “this Court must conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (footnote and citation omitted).

      In this appeal, we conclude that counsel’s Anders Brief substantially

complies with the requirements of Santiago, and counsel has complied with

the requirements set forth in Millisock.     As a result, we proceed to our

independent review to ascertain if the appeal is indeed wholly frivolous.

Sentencing Challenge

      An averment that the court misapplied the sentencing guidelines

presents a challenge to the discretionary aspects of sentencing for which

there is no automatic right to appeal. Commonwealth v. Marts, 889 A.2d

608, 611 (Pa. Super. 2005). This appeal is, therefore, more appropriately

considered a petition for allowance of appeal. 42 Pa.C.S. § 9781(b).

      To reach the merits of a discretionary sentencing issue, we
      conduct a four-part analysis to determine: (1) whether appellant
      has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence, 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. section 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citation

omitted).



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     At the hearing on Appellant’s post-sentence motion, Appellant’s

counsel acknowledged that the instant DUI was his second DUI offense

within the last 10 years, and also informed the court that Appellant

“admit[s] that he does have previous offenses but they were almost 20

years ago, and his felony convictions which made him a RFEL originally in

this case are approximately, I believe, about 35 years in the past.”    N.T.

Hearing, 7/28/16, at 3.    Later, the court informed Appellant that it had

sentenced him in the “low end of the standard range” and that the “basis for

that was a prior record of a RFEL.”    Id. at 5.   Neither Appellant nor his

counsel objected to the imposition of RFEL status.         Rather, counsel’s

argument was more in the nature of asking the court to have mercy because

the previous crimes occurred when Appellant was a younger man. Arguably,

counsel’s request did not preserve the issue as presented in this appeal and,

thus, Appellant has not met the second prong of the four-prong test set forth

in Cook, supra.5

     Notwithstanding the above observation, we are mindful that “Anders

requires that … in order to rule upon counsel's request to withdraw, we must

5
  We also note that neither counsel nor Appellant submitted a separate
statement pursuant to Pa.R.A.P. 2119(f). However, the Commonwealth has
not objected and we, thus, decline to find waiver. See Commonwealth v.
Stewart, 867 A.2d 589 (Pa. Super. 2005) (declining to find waiver of
sentencing claim due to lack of Pa.R.A.P. 2119(f) statement where
Commonwealth did not object); Commonwealth v. Felix, 539 A.2d 371,
376-77(Pa. Super. 1988) (court may look to both Pa.R.A.P. 2119(f)
statement and statement of questions presented to determine if substantial
questions are raised).



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examine the merits of the issue Appellant seeks to raise.” Commonwealth

v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) (emphasis in original).

We, thus, continue our review.

     A claim that the sentencing court misapplied the Guidelines presents a

substantial question. Commonwealth v. Archer, 722 A.2d 203, 211 (Pa.

Super. 1998).

     The standard of appellate review of discretionary aspects of
     sentencing is an abuse of discretion. Discretion is abused when
     the course pursued by the trial court represents not merely an
     error of judgment, but where the judgment is manifestly
     unreasonable or where the law is not applied or where the record
     shows that the action is a result of partiality, prejudice, bias or ill
     will. The improper utilization of the Sentencing Guidelines is an
     error of law, which is a legal question, but does not render the
     sentence illegal.

Id. (quotation marks and internal citations omitted).

     In addition, “this Court’s review of the discretionary aspects of a

sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and

(d).” Commonwealth v. Macias, 968 A.2d 773, 776-77 (Pa. Super. 2009).

     Section 9781(c) provides that this Court shall vacate a sentence and

remand under three circumstances:

     (1) the sentencing court purported to sentence within the
     sentencing guidelines but applied the guidelines erroneously;

     (2) the sentencing court sentenced within the sentencing
     guidelines but the case involves circumstances where the
     application of the guidelines would be clearly unreasonable; or

     (3) the sentencing court sentenced outside the sentencing
     guidelines and the sentence is unreasonable.



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42 Pa.C.S. § 9781(c). In addition, we consider:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      A second DUI offense is considered a first-degree misdemeanor for

which the maximum sentence is 5 years’ incarceration.           75 Pa.C.S. §

3803(b)(4); 18 Pa.C.S. § 1104(1). Appellant’s sentence of 24 to 48 months

falls within the statutory sentence provided by Section 1104.

      The sentencing guidelines provide that the offense gravity score for a

person with more than one prior DUI who is guilty of a second Section

3802(c) DUI violation is 5.   204 Pa.Code § 303.15.     In calculating a prior

record score, an offender with prior felony 1 or felony 2 convictions is placed

in the RFEL category, provided the previous convictions total 6 or more in

the prior record. 204 Pa.Code § 303.4(a)(2).

      Although the DUI statute provides that a court may “look back” only

ten years in determining whether there are prior DUI convictions for

purposes of sentencing on a current offense, see 75 Pa.C.S. § 3806(b),

“[n]either the Sentencing Code nor the sentencing guidelines place any time

limits on [other] offenses to be included in the prior record score, as such



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criminal history is relevant to sentencing.” Cook, supra at 12. . See 42

Pa.C.S. § 2154(a)(2).6 Thus, contrary to Appellant’s contention, the dates of

his prior felony and misdemeanor convictions are not relevant to his status

as a RFEL.

        Here, in addition to Appellant’s 2001 DUI, which was considered by the

court to be a first DUI for purposes of sentencing on the instant 2007

offense, Appellant had the following three prior felony offenses:      Burglary

(F1), Burglary (F2); and criminal trespass (F2). He also had numerous prior

misdemeanor convictions: Disorderly Conduct (M3); three DUI’s from 1989

(each graded misdemeanors), and an Indecent Assault conviction (M2).

According to 204 Pa.Code § 303.7(1),(2), (3), and (5), Appellant’s prior

record score is 10. It is clear that Appellant falls within the category of a

RFEL.

        The standard range for a RFEL on a crime with an offense gravity score

of 5 is 24 to 36 months.      After considering the PSI and Appellant’s RFEL



6
  42 Pa.C.S. § 2154 provides that the sentencing guidelines shall address,
inter alia, “[c]riminal history, by specifying a range of sentences of increased
severity for offenders previously convicted of or adjudicated delinquent for
one or more misdemeanor or felony offenses committed prior to the current
offense.” 42 Pa.C.S. § 2154(a) (emphasis added). “Previously convicted of
or adjudicated delinquent” is defined as “[a]ny finding of guilt or
adjudication of delinquency, whether or not sentence has been imposed or
disposition ordered prior to the commission of the current offense.” 42
Pa.C.S. § 2154(b).




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status, the court sentenced Appellant to an aggregate of 24 to 48 months for

the three offenses. See N.T. Sentencing, 9/25/15, at 4.

     We conclude, therefore, that the trial court properly exercised its

discretion in sentencing Appellant.    There is, thus, no merit to Appellant’s

sentencing challenge.

     In addition, we have conducted an independent review as required by

Flowers, supra, and conclude that there are no non-frivolous issues to be

raised on appeal. We, thus, grant counsel’s Petition to Withdraw.

     Judgment of Sentence Affirmed. Petition to Withdraw Granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2017




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