J-S18022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHACE THOMAS KUCHARSKI

                            Appellant                No. 1276 MDA 2015


              Appeal from the Judgment of Sentence July 6, 2015
             In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0000067-2014,
             CP-35-CR-0000474-2013, CP-35-CR-0000480-2013,
                           CP-35-CR-0000603-2013


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

MEMORANDUM BY LAZARUS, J.:                       FILED FEBRUARY 26, 2016

        Chace1 Thomas Kucharski appeals from the judgment of sentence

entered by the Court of Common Pleas of Lackawanna County. Kucharski’s

counsel also seeks to withdraw pursuant to the dictates of Anders v.

California, 386 U.S. 738 (1967), Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa.

1981).     Upon review, we grant counsel’s petition to withdraw and affirm

Kucharski’s judgment of sentence.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   We note that the record includes different spellings of Appellant’s first
name, including “Chace” and “Chase.” Because the notice of appeal uses the
“Chace” spelling, we incorporate it herein.
J-S18022-16



     The trial court stated the facts of this matter as follows:

     Under docket number CP-35-CR-0000474-2013, [Kucharski] was
     charged with Access Device Fraud in violation of 18 Pa.C.S.A. §
     4106(a)(1)(iv), and Receiving Stolen Property in violation of 18
     Pa.C.S.A. § 3925(a). On January 21, 2013, the Archbald Police
     Department received a complaint that several credit cards were
     stolen from a motor vehicle. Police investigation revealed that
     the signature on the receipt from the unlawfully used card
     matched [Kucharski’s] initials, signature on record, and occurred
     near [Kucharski’s] residence. [Kucharski] was arrested after
     giving Archbald Police a written statement admitting that he
     used one of several cards reported stolen from the vehicle.

     Under docket number CP-35-CR-0000480-2013, [Kucharski] was
     charged with Unauthorized Use of a Motor Vehicle in violation of
     18 Pa.C.S.A. § 3928(a) after a January 28, 2013 incident in
     which [Kucharski] operated his friend’s vehicle without
     permission, struck a fence, and drove through a yard.

     Under docket number CP-35-CR-0000603-2013, [Kucharski] was
     charged with Theft from a Motor Vehicle in violation of 18
     Pa.C.S.A. § 3934(a), Receiving Stolen Property in violation of 18
     Pa.C.S.A. § 3925(a), Loitering and Prowling at Night Time in
     violation of 18 Pa.C.S.A. § 5506, and Public Drunkenness and
     Similar Misconduct in violation of 18 Pa.C.S.A. § 5505. These
     charges stemmed from a March 12, 2013, incident in which two
     witnesses observed a person matching [Kucharski’s] description,
     who appeared intoxicated, stumbling around and entering
     vehicles parked in a pub parking lot. Police located [Kucharski]
     a short distance away and smelled a strong smell of alcohol
     emitting from his person. A 64 GB iPod was located on the
     ground where [Kucharski] was taken into custody. [Kucharski]
     stated that it was not his.       While at police headquarters,
     [Kucharski] stated that . . . he is responsible for several other
     thefts from motor vehicles since January 2013.

     [Kucharski] entered an open guilty plea in Lackawanna County
     Drug Treatment Court on June 24, 2013, and was accepted into
     the Treatment Court Program.        The Lackawanna County
     Treatment Court Program is a voluntary program. . . . The
     written plea colloquy completed by defendants entering the
     treatment court program also specifically advises defendants
     that if they are terminated from the program, the court will

                                     -2-
J-S18022-16


     accept the defendant’s guilty plea, enter a verdict of guilty, and
     sentence the defendant for the offense. The defendant is further
     advised that he or she can be fined or sentenced to jail for any
     time up to the maximum for the offense.            In this case,
     [Kucharski] executed a treatment court plea colloquy and was
     made aware of the provisions of the program.

     Subsequently, under docket number CP-35-CR-0000067-2013,
     [Kucharski] was charged with Theft from a Motor Vehicle in
     violation of 18 Pa.C.S.A. § 3934(a), Receiving Stolen Property in
     violation of 18 Pa.C.S.A. § 3925(a), and Loitering and Prowling
     at Night Time in violation of 18 Pa.C.S.A. § 5506. These
     charges resulted from an October 9, 2013, incident in which
     Archbald Police received a phone call that the complainant’s son
     observed an individual going through the complainant’s truck
     and that a $100.00 “winning” lottery ticket was missing in the
     morning. Complainant called the store the ticket was purchased
     at and determined the ticket number. Later that day, police
     received a call from a store that recovered the stolen ticket. The
     store employee stated that a young man tried to cash the ticket
     earlier that day and wrote his name on the back, but the store
     did not have enough money in the drawer to pay out the prize.
     Later[,] a man came in the store stating that he was the father
     of the man who tried to cash the stolen ticket and returned it.
     The name written on the ticket was “Chace Kucharski” – the
     Appellant.    [Kucharski] was known to the officer and the
     Archbald Police Department from prior offenses. On April 28,
     2014, [Kucharski pled] guilty to Theft from a Motor Vehicle and
     the remaining charges were withdrawn. On July 30, 2013[,
     Kucharski] was sentenced to eighteen (18) months’ probation by
     the Honorable Vito P. Geroulo.

     On June 4, 2015, [Kucharski] was terminated from Drug
     Treatment Court upon [p]etition of the Commonwealth [because
     he tested positive for marijuana, alcohol, and other substances
     and was arrested for theft and other related offenses].

     On June 25, 2015, this [c]ourt sentenced [Kucharski] on all
     criminal dockets to an aggregate term of nineteen (19) to sixty-
     nine (69) months[’] confinement followed by four (4) years[’]
     probation.

Trial Court Opinion, 11/30/15, at 1-4 (some citations omitted).




                                    -3-
J-S18022-16



      On June 30, 2015, Kucharski filed a motion for reconsideration of his

sentence, which the trial court denied on July 7, 2015.       Kucharski filed a

timely notice of appeal and court-ordered concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).        Kucharski raises

the following issues for our review:

      1. Whether the lower court erred in terminating [Kucharski]
         from the Drug Court Program and imposing its sentence?

      2. Whether the sentences imposed were inappropriately harsh
         and excessive and an abuse of discretion?

Brief of Appellant, at 7.

      Counsel has filed a petition to withdraw pursuant to Anders,

McClendon, and Santiago.        “When faced with a purported Anders brief,

this Court may not review the merits of the underlying issues without first

passing on the request to withdraw.” Commonwealth v. Rojas, 847 A.2d

638, 639 (Pa. Super. 2005). Based upon Anders and McClendon, counsel

seeking to withdraw must:      (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 an 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 raising any additional points that the

appellant deems worthy of review.       Commonwealth v. Hernandez, 783

A.2d 784, 786 (Pa. Super. 2001). Additionally, in Santiago, our Supreme




                                       -4-
J-S18022-16



Court held that counsel must state the reasons for concluding the client’s

appeal is frivolous. Santiago, 978 A.2d at 361.

      Instantly, counsel’s petition to withdraw states that she has examined

the record and has concluded that the appeal is wholly frivolous. Counsel

has also filed a brief in which she repeats the assertion that there are no

non-frivolous issues to be raised and indicates the reasons for concluding the

appeal is frivolous.    Counsel has notified Kucharski of the request to

withdraw and has provided Kucharski with a copy of the brief and a letter

explaining Kucharski’s right to proceed pro se or with privately retained

counsel   regarding    any   other    issues   he     believes     might   have    merit.

Accordingly, we find that counsel has substantially complied with the

procedural requirements for withdrawal.

      Once counsel has satisfied the above requirements, this Court

conducts its own review of the proceedings and renders an independent

judgment    as   to   whether   the    appeal       is,   in   fact,   wholly   frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

      Kucharski asserts that the lower court erred by terminating his

participation in Drug Treatment Court, arguing that he should have been

given a second chance. Nevertheless, the terms of the treatment court plea

colloquy and rules of the program made clear that participation could be

terminated for violating the rules. Kucharski tested positive for alcohol and

drugs and was arrested for theft. These were clear violations of the rules,

triggering Kucharski’s termination from the program, the entry of guilty

                                        -5-
J-S18022-16



verdicts, and the court imposing its judgment of sentence.           Therefore,

Kucharski’s argument that he was improperly terminated from the drug

treatment court program is without merit.

      Next, Kucharski argues that the sentence imposed by the trial court is

excessive, which presents a challenge to the discretionary aspects of

sentencing.   An appellant is not entitled to review of the discretionary

aspects of sentencing unless he or she satisfies a four-part test:

      (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.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en

banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

      Here, Kucharski filed a timely notice of appeal, filed a timely motion

for reconsideration of sentence, and filed a brief without a fatal defect.

However, Kucharski’s sentence falls within the statutory guidelines, and he

makes only a bald claim that his sentence is excessive. The mere claim that

a sentence is excessive, when it is within the statutory limits, does not raise

a substantial question. See Commonwealth v. Coss, 695 A.2d 831, 833

(Pa. Super. 1997).

      Based upon our independent review of the record, we find Kucharski’s

claims to be meritless and discern no non-frivolous issues overlooked by

                                     -6-
J-S18022-16



counsel.2     Therefore, we affirm the judgment of sentence and grant

counsel’s petition to withdraw.

       Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2016




____________________________________________


2
  See Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015)
(“precedent from the Pennsylvania Supreme Court and this Court requires
that an independent review of the record include the review of the entire
record for any non-frivolous issues.”)




                                           -7-
