J-S84032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    ALLEN THEODORE CLAIBORNE                   :
                                               :
                        Appellant              :     No. 1318 MDA 2017

                 Appeal from the Judgment of Sentence May 24, 2017
                     In the Court of Common Pleas of York County
                 Criminal Division at No(s): CP-67-CR-0003742-2016


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                      FILED APRIL 12, 2018

        Allen Theodore Claiborne appeals from the judgment of sentence

imposed May 24, 2017, in the York County Court of Common Pleas. The trial

court sentenced Claiborne to an aggregate term of five to 12 years’

imprisonment following his jury conviction of theft and criminal conspiracy to

commit robbery.1 Contemporaneous with this appeal, Claiborne’s counsel has

filed a petition to withdraw from representation and an Anders brief. See

Anders      v.    California,   386    U.S.    738    (1967);   Commonwealth      v.

McClendon, 434 A.2d 1185 (Pa. 1981).                 The sole issue addressed in the

Anders brief is a challenge to the discretionary aspects of Claiborne’s

sentence. For the reasons below, we affirm the judgment of sentence, and

grant counsel’s petition to withdraw.
____________________________________________


1   See 18 Pa.C.S. §§ 903/3701(a)(1)(ii), and 3921(a), respectively.
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        The facts underlying Claiborne’s convictions are well-known to the

parties and need not be reiterated herein. In summary, Claiborne, along with

two co-conspiractors, posted ads online claiming to have electronic items for

sale.    However, when they met with potential buyers, Claiborne and his

cohorts robbed them at gunpoint. On November 15, 2016, a jury convicted

Claiborne of conspiracy and theft with regard to one of the robberies, acquitted

him of a second robbery, and was unable to reach a verdict with regard to the

third robbery. As noted above, he was sentenced on May 24, 2017, to a term

of five to 12 years’ imprisonment for conspiracy to commit robbery, and a

concurrent term of six to 12 months’ for the charge of theft. On June 2, 2017,

Claiborne filed a timely post-sentence motion seeking reconsideration of his

sentence. On July 17, 2017, the trial court denied Claiborne’s post-sentence

motion following a hearing. Claiborne filed a notice of appeal on August 18,

2017.

        Before we may address counsel’s request to withdraw and the

substantive claim raised in the Anders brief, we must first determine if this

appeal was timely filed. “Jurisdiction is vested in the Superior Court upon the

filing of a timely notice of appeal.” Commonwealth v. Liebensperger, 904

A.2d 40, 43 (Pa. Super. 2006) (quotation omitted). When the defendant in a

criminal case files a timely post-sentence motion, “the notice of appeal shall

be filed … within 30 days of the entry of the order deciding the motion[.]”

Pa.R.Crim.P. 720(A)(2)(a).




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      Here,   Claiborne    filed   a   timely   post-sentence   motion    seeking

reconsideration of his sentence, which the trial court denied by order entered

July 17, 2017. Therefore, it appears that his notice of appeal, filed thirty-two

days later, on August 18, 2017, was untimely.          Indeed, we note that on

September 11, 2017, this Court filed an order directing Claiborne to show

cause why the appeal should not be quashed as untimely. See Rule to Show

Cause, 9/11/2017.      Counsel for Claiborne filed a response, in which he

conceded the appeal was untimely filed and must be quashed. See Response

to Order to Show Cause, 9/11/1027, at ¶ 5.

      Our review of the record, however, reveals that, despite counsel’s

concession, quashal of this appeal is not appropriate.           Pursuant to the

Pennsylvania Rules of Appellate Procedure, the date of the entry of an order

is “the day the clerk of the court … mails … copies of the order to the parties[.]”

Pa.R.A.P. 108(a)(1). The only exception in a criminal case is when no post-

sentence motion has been filed, in which case “the date of imposition of

sentence in open court shall be deemed to be the date of entry of the judgment

of sentence.” Pa.R.A.P. 108(d)(2).

      Here, the docket indicates that notice of the trial court’s July 17, 2017,

order denying Claiborne’s post-sentence motion was served on the parties on

July 24, 2017. See Docket No. 3742-2016, 7/17/2017 Entry, Order Denying

Post-Sentence Motion. Consequently, Claiborne had until August 23, 2017, to

file a timely notice of appeal, and his appeal filed on August 18, 2017, was




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timely filed.2 Therefore, we proceed to an examination of counsel’s request

to withdraw.

       When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any of

the substantive issues raised on appeal. Commonwealth v. Bennett, 124

A.3d 327, 330 (Pa. Super. 2015). Our review of the record reveals counsel

has complied with the requirements for withdrawal outlined in Anders, supra,

and its progeny. Notably, counsel completed the following: (1) he filed a

petition for leave to withdraw, in which he states his belief that the appeal is

wholly frivolous; (2) he filed an Anders brief pursuant to the dictates of

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); (3) he

furnished a copy of the Anders brief to Claiborne; and (4) he advised

Claiborne of his right to retain new counsel or proceed pro se.3            See
____________________________________________


2  On August 23, 2017, the trial court directed Claiborne to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Claiborne complied with the court’s directive, and filed a concise statement on
September 14, 2017. This filing was one-day late pursuant to the 21-day
filing period set forth in Rule 1925. However, this Court has held: “[I]f there
has been an untimely filing [of a concise statement], this Court may decide
the appeal on the merits if the trial court had adequate opportunity to prepare
an opinion addressing the issues being raised on appeal.” Commonwealth
v. Burton, 973 A.2d 428, 433 (2009). Here, the trial court prepared a Rule
1925(a) opinion, in which it relied upon the reasoning set forth in its order
denying post-sentence motions. Accordingly, we decline to find Claiborne’s
issue waived on appeal.

3We note that counsel initially did not attach to the petition a letter informing
Claiborne of his rights. Accordingly, by order entered October 31, 2017, this
Court directed counsel to properly notify Claiborne and file a copy of the



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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc).    Moreover, we have received no correspondence from Claiborne

supplementing the Anders brief.

       Therefore, we proceed “to make a full examination of the proceedings

and make an independent judgment to decide whether the appeal is in fact

wholly frivolous.” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.

Super. 2015) (quotations and citation omitted). In so doing, we review not

only the issues identified by appointed counsel in the Anders brief, but

examine all of the proceedings to “make certain that appointed counsel has

not overlooked the existence of potentially non-frivolous issues.” Id. at 1249

(footnote omitted).

       The sole issue addressed in the Anders brief is a challenge to the

discretionary aspects of Claiborne’s sentence. A challenge to the discretionary

aspects of a sentence is not absolute, but rather, “must be considered a

petition for permission to appeal.” Commonwealth v. Best, 120 A.3d 329,

348 (Pa. Super. 2015) (quotation omitted). In order to reach the merits of

such a claim, this Court must determine:

____________________________________________


notification with this Court. See Order, 10/31/2017. Although counsel
complied, the letter he sent to Claiborne contained incorrect advice, implying
that Claiborne’s right to represent himself or retain private counsel was
contingent upon this Court permitting counsel to withdraw. Therefore, on
November 17, 2017, this Court ordered counsel to properly inform Claiborne
of his rights, and file a copy of the correct notification with this Court. See
Order, 11/17/2017. Counsel complied with our directive, and filed a proper
notification on November 22, 2017.


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        (1) whether the appeal is timely; (2) whether Appellant preserved
        his issue; (3) whether Appellant’s brief includes a concise
        statement of the reasons relied upon for allowance of appeal with
        respect to the discretionary aspects of sentence; and (4) whether
        the concise statement raises a substantial question that the
        sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(quotation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

        In the present case, although Claiborne filed a timely appeal and

preserved his challenge in a post-sentence motion, counsel failed to include a

concise statement of the reasons relied upon for allowance of appeal pursuant

to Pa.R.A.P. 2119(f) in the Anders brief.             Nevertheless, because the

Commonwealth did not object to the omission, we may consider the claim on

appeal.4    See Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super.

2006). See also Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184

(Pa. Super. 2016) (declining to waive a discretionary sentencing claim despite

the absence of a Rule 2119(f) statement when counsel has requested to

withdraw and filed an Anders brief).           Therefore, we must now determine

whether the Anders brief raises a substantial question justifying our review.

A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d


____________________________________________


4   Indeed, the Commonwealth neglected to file a brief.


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1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).

      Here, Claiborne contends the sentence imposed was excessive, and the

trial court failed to consider “the fact that he is only twenty-three years old

and was addicted to controlled substances at the time the crime occurred.”

Anders Brief at 9. Claiborne insists that by reducing his sentence, the court

will allow him to “develop the important social and professional skills needed

to become a contributing member of society,” and he will be less likely to

commit future crimes if he is provided with treatment for his drug addiction

issues. Id.

      A claim that the trial court failed to consider mitigating factors does not

present a substantial question for our review. Commonwealth v. Corley,

31 A.3d 293, 297 (Pa. Super. 2011). This is particularly true where, as here,

the trial court had the benefit of a pre-sentence investigation report. See

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).

      Where the sentencing court had the benefit of a presentence
      investigation report (“PSI”), we can assume the sentencing court
      “was aware of relevant information regarding the defendant’s
      character and weighed those considerations along with mitigating
      statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-
      02, 546 A.2d 12, 18 (1988). See also Commonwealth v.
      Tirado, 870 A.2d 362, 368 (Pa.Super.2005) (stating if sentencing
      court has benefit of PSI, law expects court was aware of relevant
      information regarding defendant's character and weighed those
      considerations along with any mitigating factors). Further, where
      a sentence is within the standard range of the guidelines,
      Pennsylvania law views the sentence as appropriate under the
      Sentencing Code. See Commonwealth v. Cruz-Centeno, 447
      Pa.Super. 98, 668 A.2d 536 (1995), appeal denied, 544 Pa. 653,


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      676 A.2d 1195 (1996) (stating combination of PSI and standard
      range sentence, absent more, cannot be considered excessive or
      unreasonable).

Id.

      In the present case, the trial court imposed concurrent, standard range

sentences for Claiborne’s offenses. See N.T., 5/24/2017, at 2, 4. The court

specifically noted that it took into consideration Claiborne’s age, and his use

of controlled substances. See Order, 7/17/2017, at 3. Accordingly, we find

he has failed to raise a substantial question justifying our review.

      Despite the fact that counsel incorrectly conceded the appeal should be

quashed, we agree with his assessment that the issue identified in the Anders

brief is frivolous.   Moreover, we have conducted “a full examination of the

proceedings” and conclude “the appeal is in fact wholly frivolous.” Flowers,

supra, 113 A.3d at 1248.

      Judgment of sentence affirmed.        Petition to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2018




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