J-S25022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MATTHEW SCOTT FAGAN

                            Appellant               No. 1130 WDA 2015


             Appeal from the Judgment of Sentence April 21, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011583-2014


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                FILED APRIL 4, 2016

        Appellant, Matthew Scott Fagan, appeals from the April 21, 2015

aggregate judgment of sentence of three to eight years’ incarceration,

imposed by the trial court after Appellant entered a guilty plea to one count

of theft by unlawful taking and one count of conspiracy.1 With this appeal,

Appellant’s counsel has filed a petition to withdraw and an Anders2 brief,

stating that the appeal is wholly frivolous.   After careful review, we affirm

and grant counsel’s petition to withdraw.



____________________________________________


1
    18 Pa.C.S.A. §§ 3921(a) and 903(c), respectively.
2
    Anders v. California, 386 U.S. 738 (1967).
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      The record reveals that Appellant stole in excess of $150,000.00 from

the bookstore where he was employed. Appellant was charged with theft,

receiving stolen property, conspiracy and unlawful use of a computer.     On

February 12, 2015, Appellant pled guilty to theft and conspiracy; in return,

the Commonwealth withdrew the charges of receiving stolen property and

unlawful use of a computer. The parties did not have an agreement as to

sentencing.     N.T., 2/12/15, at 2.    On April 21, 2015, the trial court

sentenced Appellant to three to eight years’ incarceration. Appellant filed a

timely post-sentence motion which the trial court denied on June 30, 2015.

Appellant filed a timely notice of appeal. On September 18, 2015, the trial

court directed Appellant to comply with Pennsylvania Rule of Appellate

Procedure 1925(b).     Counsel for Appellant complied on October 6, 2015,

stating that she “has been unable to discover any non-frivolous matters that

can be raised on appeal,” and providing notice that she intended to file an

Anders brief.

      On appeal, Counsel has in fact filed an Anders Brief, which presents

the following issue for our review.

              1. Is the sentence imposed upon [Appellant] an
                 abuse of discretion and manifestly unreasonable?

Anders Brief at 5.

      “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.

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2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

                     [W]e hold that in 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 361.

      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


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

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

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

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Second, counsel

advances relevant portions of the record that arguably support Appellant’s

claims on appeal. Third, counsel concluded that Appellant “has not shown

that his sentence is the result of an abuse of the trial court’s discretion,” and

that Appellant’s “appeal is frivolous.” Anders Brief at 20. Lastly, counsel

has complied with the requirements set forth in Millisock. See Letter from

Counsel to Appellant, dated 12/16/15.3 As a result, we proceed to conduct

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

        Counsel for Appellant has explained that she “has attempted to reach

[Appellant] but he has not responded to any requests for contact.” Anders

Brief at 14.      Counsel also states that “[p]rior counsel had noted that
____________________________________________


3
    The record indicates that Appellant has not filed a response.




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[Appellant] was extremely upset at the length of his sentence.” Id. Counsel

nonetheless references Appellant’s post-sentence motion for reconsideration,

in which he asserted that his sentence was manifestly excessive, and cited

his drug and gambling addictions as favoring placement at a rehabilitation

facility; noted his prior record score of 0 and the non-violent nature of his

crimes, such that the protection of the public was not warranted; and

maintained that the trial court erroneously based its sentence on “the

amount of money involved and the great impact the crime had on the

victims.” Id. at 13.4

       At the outset, we note that Appellant’s argument pertains to the

discretionary aspects of his sentence.         “Pennsylvania law makes clear that

by entering a guilty plea, the defendant waives his right to challenge on

direct appeal all non[-]jurisdictional defects except the legality of the

sentence and the validity of the plea.”          Commonwealth v. Lincoln, 72

A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d

319 (Pa. 2014). However, when a defendant’s plea is an open guilty plea,

he does not waive claims regarding the discretionary aspects of the sentence

____________________________________________


4
   At the June 25, 2015 hearing on Appellant’s post-sentence motion for
reconsideration, Appellant did not present any new information, although the
trial court noted that Appellant had left his half-way house without
authorization, as well as his most recent place of employment. N.T.,
6/25/15, at 4-5. Further, Mr. Larry Paper, the president of the bookstore
from which Appellant stole, testified to the “tremendous” negative impact
Appellant’s theft had on the business. Id. at 13-15.



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“because there was no agreement as to the sentence [the defendant] would

receive.”   Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013)

(citation omitted). Relevant to our analysis in this case, where there have

been no sentencing restrictions in the plea agreement, the entry of a guilty

plea will not preclude a challenge to the discretionary aspects of sentencing.

Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994), appeal

denied, 655 A.2d 983 (Pa. 1995), cert. denied, Dalberto v. Pennsylvania,

516 U.S. 818 (1995). Nevertheless, “[t]here is no absolute right to appeal

when challenging the discretionary aspect of a sentence.” Commonwealth

v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). When an

appellant makes an argument pertaining to the discretionary aspects of the

sentence, this Court considers such an argument to be a petition for

permission to appeal.       Commonwealth v. Buterbaugh, 91 A.3d 1247,

1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal denied, 104

A.3d 1 (Pa. 2014).         “[A]n [a]ppeal is permitted only after this Court

determines that there is a substantial question that the sentence was not

appropriate under the sentencing code.” Commonwealth v. Cartrette, 83

A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks and

citation omitted).

      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether     a   petition   for   permission   to   appeal   should   be   granted.


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Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

           (1) [W]hether 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.A.] § 9781(b).

Id.

      Instantly, Appellant filed a timely motion for reconsideration of

sentence and notice of appeal.     Also, the Anders brief includes a Rule

2119(f) statement. Anders Brief at 11. We therefore proceed to address

whether Appellant has raised a substantial question for our review.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75

(Pa. 2013). “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.”          Id.

(citations omitted). “Additionally, we cannot look beyond the statement of

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


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whether a substantial question exists.”   Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa. Super. 2012).

     Instantly, Appellant avers that the trial court abused its discretion

based on the following.

           [Appellant] has a drug and gambling addiction, and
           would be most effectively treated at a rehabilitation
           facility. [Appellant] also [i]s not an individual from
           whom the public needed protection, considering that
           he had a prior record score of zero and this was not
           a violent crime.        [Appellant’s] sentence was
           excessive in that the court based its sentencing
           decision on the amount of money involved and the
           great impact the crime had on the victims.

Appellant’s Pa.R.A.P. 2119(f) Statement, Anders Brief at 13.

     This Court has long recognized “an allegation that a sentencing court

… did not adequately consider certain factors does not raise a substantial

question that the sentence was inappropriate.”         Commonwealth v.

Johnson, 961 A.2d 877, 880 (Pa. Super. 2008), appeal denied, 968 A.2d

1280 (Pa. 2009); see also Commonwealth v. Bullock, 868 A.2d 516, 529

(Pa. Super. 2005), affirmed, 913 A.2d 207 (Pa. 2006), cert. denied, Bullock

v. Pennsylvania, 550 U.S. 941 (2007). Furthermore, this Court has held

that an argument that the trial court failed to consider certain mitigating

factors in favor of a lesser sentence does not present a substantial question

appropriate for our review. Commonwealth v. Ratushny, 17 A.3d 1269,

1273 (Pa. Super. 2011); accord Commonwealth v. Moury, 992 A.2d 162,




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171 (Pa. Super. 2010).      Consequently, Appellant has failed to a raise a

substantial question for our review. See Edwards, supra.

      We note that even if we were permitted to address the merits,

Appellant would not be entitled to relief.      At sentencing, the trial court

recognized Appellant’s “substantial drug problem, a gambling problem,

among    other   things,”   but   nonetheless   referenced   Appellant’s   poor

employment history, stating, “this has been going on since 2013, 2014,

2015, and these victims are out $155,208.18. … [Appellant] knew this

[case] was happening and [did] absolutely nothing [regarding restitution].”

N.T., 4/21/15, at 7, 19.     Appellant responded that he could not “give a

definitive answer” about when he would begin to repay the money he stole.

Id. at 8. Appellant also conceded he had smoked marijuana “three weeks

ago.” Id. at 9. Mr. Michael Paper, the bookstore owner who was victimized

by Appellant’s crimes, testified to learning that Appellant’s theft began “from

day one,” and stated Appellant had “conned us as well as the police.” Id. at

15. Mr. Paper testified as follows.

            There’s evidence [Appellant] may still be receiving
            funds from the merchandise he stole. We have
            received nothing in restitution and no offer to do so.
            As a matter of fact, the last I heard he was still
            driving the vehicle purchased with stolen funds.

                  His actions forced the closure of that
            department of our company and left over a dozen
            people out of work. The close to $160,000 in stolen
            funds not only represents my child’s – children’s
            college fund but also represent the first eight years
            in take-home pay when starting the company. … It


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             wouldn’t surprise me if he still had the majority of
             the funds tucked away in an account somewhere[.]

Id. at 15-16.

      The trial court then explained as follows.

                    I’ve considered the sentencing guidelines, I’ve
             considered the contents of the Presentence Report as
             corrected, as amended.            … I’ve considered
             [Appellant’s] lawyer’s arguments, I’ve considered
             [Appellant’s] statements to the Court, I’ve
             considered the Commonwealth’s statements and
             arguments to the Court. I’ve considered also the
             testimony of two witnesses, the victims, … who have
             testified about the impact of [Appellant’s] actions on
             their business and their personal life, and I’ve looked
             at the opportunity [Appellant was] provided, the
             defense, with an opportunity to address significant
             issues, not the only issue in this case, but certainly a
             significant one, to the victims, the amount of
             restitution. There is no plan, none whatsoever to
             address that issue.

                  I’ve considered the punitive deterrent and
             rehabilitative aspect of sentencing[.]

Id. at 20.

      The trial court then rendered Appellant’s sentence of three to eight

years’ incarceration and concluded as follows.

             I’ll note for the record that the sentence I imposed is
             a sentence that is a little above the standard range,
             but below, slightly below the aggravated range of
             the sentencing guidelines applicable to his case with
             respect to the theft count. There are no mandatories
             in this case. And, again, [Appellant] doesn’t seem to
             have a plan to address the rehabilitative issues with
             respect to his drug, alleged drug usage and/or
             repayment of restitution within a reasonable time
             period to the victims in this case.

Id. at 23.


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     Based on the foregoing, we discern no abuse of discretion by the trial

court in imposing Appellant’s sentence.     We also agree with counsel that

Appellant’s sentencing issue lacks merit.    Furthermore, we have reviewed

the certified record consistent with Flowers and have discovered no

additional arguably meritorious issues.     Accordingly, we grant counsel’s

petition to withdraw and affirm the April 21, 2015 judgment of sentence.

     Judgment of sentence affirmed.         Petition to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2016




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