J-S20015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    VLADIMAR MALINAK,                            :
                                                 :
                       Appellant                 :   No. 1563 MDA 2017


      Appeal from the Judgment of Sentence entered September 13, 2017,
               in the Court of Common Pleas of Wyoming County,
             Criminal Division, at No(s): CP-66-CR-0000162-2017.


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                                 FILED JUNE 04, 2018

        Appellant, Vladimir Malinak, appeals from the Judgment of Sentence

entered after Malinak pleaded guilty to the offense of a tier 1 Driving Under

the Influence of Alcohol (DUI), an ungraded misdemeanor.1 Malinak’s counsel

filed a petition to withdraw as counsel and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                        After a full

examination of all the proceedings, we find that this appeal is frivolous.

Accordingly, we affirm the judgment of sentence and grant counsel’s petition

to withdraw.


____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1)
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      On February 16, 2017, Malinak drunkenly drove off a road and struck a

telephone pole.    First responders arrived at the scene, and Malinak was

transported to the hospital where he refused the police’s request for a

chemical test. Upon completion of a records check, the police learned Malinak

was wanted in both Lackawanna County for a DUI as well as Pike County for

failure to appear on a DUI.

      On May 12, 2017, a bench warrant was issued after Malinak failed to

appear at the district magistrate for his scheduled preliminary hearing

regarding the February offense. Malinak was picked up on the warrant on May

24, 2017, and a hearing was held the same day. The court set bail in the

amount of $15,000. Malinak could not post bail and remained incarcerated

until he was sentenced 112 days later. A bench trial was set for July 19, 2017,

but was continued to August 16, 2017 upon a motion from the district

attorney. On August 4, 2017 Malinak pleaded guilty to one count of DUI,

ungraded misdemeanor; the offense carried a gravity score of 1, and Malinak

had a prior record score of 1. Malinak did not request an expedited sentencing

hearing.

      On September 13, 2017, after review of an extensive pre-sentence

investigation (PSI) report, the trial court sentenced Malinak to pay the cost of

prosecution, pay a $300 fine and undergo imprisonment in the Wyoming

County Correctional Facility for a period of not less than three (3) days nor

more than one hundred twelve (112) days. Malinak, having reached this

maximum, was released to any detainers that were lodged against him.

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      Malinak’s attorney filed a motion to withdraw and a timely post-sentence

motion for reconsideration of sentence, both of which the trial court denied on

September 21, 2017. He filed a timely Notice of Appeal on October 10, 2017.

Both Malinak and the trial court complied with Pa.R.A.P. 1925.

      Preliminarily, we address counsel’s motion for withdrawal.      To obtain

permission to withdraw, counsel must file an Anders brief that meets the

requirements stablished by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). The brief 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 reasonably believes 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
         statuses on point that have led to the conclusion that the
         appeal is frivolous.

Santiago, 978 A.2d at 361. Counsel must provide the appellant with a copy

of the Anders brief along with a letter that advises the appellant of his or her

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. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).

Substantial    compliance     with    these    requirements      is   sufficient.

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007). “After

establishing that the antecedent requirements have been met, this Court must


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then make an independent evaluation of the record to determine whether the

appeal is, in fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa. Super. 2006). We find Malinak’s appointed counsel substantially

complied with the requirements of Anders and Santiago.

      With these principles in mind, we now review the lone issue raised in

counsel’s Anders brief:

          May a court aggravate a sentence solely based upon
         defendant’s inability to post bail?

Anders Brief, at 6.

      In asserting that his sentence was excessive, Malinak raises a challenge

to the discretionary aspects of his sentence. “Challenges to the discretionary

aspects of [a] sentence are not appealable as of right.” Commonwealth v.

Dempster, 2018 Pa. Super. 121, at 4 (Pa. Super. May 8, 2018) (en banc)

(citing Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015)).

      Rather, an appellant challenging the sentencing court’s discretion must
      invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)
      properly preserving the issue at sentencing or in a motion to reconsider
      and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which
      requires a separate section of the brief setting forth ‘a concise statement
      of the reasons relied upon for allowance of appeal with respect to the
      discretionary aspects of a sentence[;]’ and (4) presenting a substantial
      question that the sentence appealed from is not appropriate under the
      Sentencing Code, 42 PA.C.S. § 9781(b).

Dempster, 2018 Pa. Super. 121, at 4. (Citations omitted).

      Malinak argues that his sentence of 112 days constituted an aggravated

sentence under the Sentencing Code.          He argues further that the only

cognizable reason for the aggravated sentence was his failure to post bail; he

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concludes that this reason is invalid. But Malinak does not present us with a

substantial question that the sentence imposed is inappropriate under the

Sentencing Code. We find this discretionary claim has no merit; because the

trial court sentenced Malinak to 3 days to 112 days of incarceration, the

sentence was not, in fact, aggravated as defined in the basic sentencing matrix

of 204 Pa. Code § 303.16(a).2 Because the question presented to us assumes

the proposition that the sentence was “aggravated” due to Malinak’s inability

to post bail, we find the same to be frivolous.

        After conducting a full examination of all the proceedings as required

pursuant to Anders, we discern no non-frivolous issues to be raised on

appeal. Dempster, 2018 Pa. Super. 121, at 4 (requiring the Superior Court

“to conduct a simple review of the record to ascertain if there appears on its

face to be arguably meritorious issues that counsel, intentionally or not,

missed or misstated.”) We therefore grant counsel’s petition to withdraw and

affirm Malinak’s judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/04/2018


____________________________________________


2   Counsel has acknowledged the same in his brief. See Anders Brief, at 9.

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