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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                       :
                                       :
                                       :
 JAMES K. COLLINS,                     :
                                       :
                   Appellant           :   No. 3021 EDA 2017

           Appeal from the Judgment of Sentence August 4, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0006827-2016

                                  *****


COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
JAMES K. COLLINS,                      :
                                       :
                   Appellant           :   No. 3022 EDA 2017

           Appeal from the Judgment of Sentence August 4, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0000997-2017


BEFORE:   LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY LAZARUS, J.:                        FILED APRIL 23, 2019




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        James K. Collins appeals from a judgment of sentence, entered in the

Court of Common Pleas, after pleading guilty in two separate cases. 1 In CP-

23-CR-6827-2016, Collins pled guilty to delivery of a controlled substance (2

counts),2 criminal use of a communication facility (2 counts),3 and resisting

arrest.4 In CP-23-CR-887-2017, Collins pled guilty to drug delivery resulting

in death,5 delivery of a controlled substance,6 and involuntary manslaughter.7

Counsel has petitioned this Court to withdraw from his representation of

Collins pursuant to Anders and Santiago.8        Upon review, we find Collins’

appeals frivolous; we affirm Collins’ judgments of sentence and grant

counsel’s petitions to withdraw.

____________________________________________


1 This Court has opted to consolidate both appeals. When the same question
is involved in two or more appeals in different cases, the appellate court may,
in its discretion, treat them as a single appeal. Pa.R.A.P. 513. Briefs for both
appeals raise the same issue and have near identical paginations; they will be
cited to collectively as “Appellant’s Briefs.”

2   35 P.S. § 780-113(a)(30).

3   18 Pa.C.S.A. § 7512.

4   18 Pa.C.S.A. § 5104.

5   18 Pa.C.S.A. § 2506(a).

6   35 P.S. § 780-113(a)(30).

7   18 Pa.C.S.A. § 2504(a).

8 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).




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       On October 1, 2016, Collins sold 3-methylfentanyl9 to Mathew Ettien.

On October 2, 2016, Ettien was found dead in in his bathroom due to a drug

overdose. On October 3, 2016, Collins sold 3-methylfentanyl to an undercover

officer. Collins was arrested on October 4, 2016. He was charged with the

above mentioned crimes. On June 2, 2017, Collins entered open guilty pleas

in both cases to the above offenses. On August 4, 2017, the trial court entered

its sentencing order, which it then amended on August 9, 2017.               The

aggregate sentence for both cases was 19¼ to 38½ years’ incarceration. On

August 14, 2017, Collins filed a motion for reconsideration of sentence in each

case. The motions were denied and these appeals followed in which counsel

has sought permission to withdraw from his representation of Collins.

       In order to withdraw pursuant to Anders, counsel 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 arguable 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). In addition, counsel must

also state his reasons for concluding his client’s appeal is frivolous. Santiago,

978 A.2d at 361.
____________________________________________


9 3-methylfentanyl is an opioid between 300 to 6,000 times more powerful
than morphine. N.T. Sentencing, 8/4/17, at 49.

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       Here, counsel’s petitions state that he has made an examination of the

record and concluded the appeals are wholly frivolous. For each case, counsel

indicates that he supplied Collins with a copy of the brief and a letter

explaining his rights to proceed pro se, or with privately retained counsel, and

to raise any other issues he believes might have merit.10 Counsel has also

submitted briefs, setting out the issues raised by Collins and, pursuant to the

dictates of Santiago, and explained why he believes the appeals to be

frivolous. Thus, counsel has substantially complied with the requirements for

withdrawal.

       Counsel having satisfied the above requirements, this Court must

conduct its own review of the proceedings and render an independent

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

Commonwealth v. Wright, 846 A.2d 730, 737 (Pa. Super. 2004).

       Collins claims that, “the judgment of sentence is harsh and excessive

where the lower court sentenced entirely in consecutive fashion when all the

mitigating evidence called for a concurrent scheme.” Appellant’s Briefs, at 3

(unnecessary capitalization removed).

       Collins’ claim represents a challenge to the discretionary aspects of his

sentence. An appeal from a discretionary aspects of sentencing claim is not

guaranteed of right; rather, a defendant’s appeal is considered a petition for

permission to appeal. Commonwealth v. Williams, 562 A.2d 1385, 1386-
____________________________________________


10Collins has not submitted any additional or supplemental filings to this
Court.

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87 (Pa. Super. 1989) (en banc). An objection to a discretionary aspect of

sentencing is waived if it is not raised at the sentencing hearing or in a motion

to modify sentencing. Commonwealth v. Anderson, 830 A.2d 1013, 1013

(Pa. Super. 2003). An appellant who challenges the discretionary aspects of

his sentence must include in his brief a concise statement of the reasons relied

upon for allowance of appeal. Pa.R.A.P. 2119(f). In addition, appellate review

will only be granted if the appellant raises a substantial question. 42 Pa.C.S.A.

§ 9781(b); Commonwealth v. Byrd, 657 A.2d 961, 963 (Pa. Super. 1995);

Williams, 562 A.2d at 1387. The existence of a substantial question must be

determined on a case-by-case basis.       Commonwealth v. Cruz-Centeno,

668 A.2d 536, 545 (Pa. Super. 1995).

      Here, Collins filed post-sentence motions to reconsider his sentence,

followed by timely notices of appeal. Additionally, he has included in each of

his briefs a concise statement of reasons relied upon for appeal pursuant to

Rule 2119(f). Accordingly, we must now determine whether Collins has raised

a substantial question for our review.

      In his Rule 2119(f) statement, Collins asserts that “the lower court

manifestly abused [its] discretion when it ran all the sentences imposed

consecutive to each other even though the myriad [] mitigating factors put

forth by [Collins] suggested a concurrent scheme.” Appellant’s Briefs, at 7.

Specifically, Collins argues the mitigating factors “include the fact that he

expressly accepted his responsibility for committing the crimes for which he




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was sentenced, his clearly stated motivation to be rehabilitated and his

genuine remorse.” Appellant’s Briefs, at 8.

      This Court has held that an excessive sentence claim—in conjunction

with an assertion that the court failed to consider mitigating factors—raises a

substantial question.   See Commonwealth v. Raven, 97 A.3d 1244 (Pa.

Super. 2013); see also Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.

Super. 2012) (finding trial court’s failure to consider “acceptance of

responsibility, expression of remorse, and amenability to rehabilitation” raises

a substantial question). Accordingly, we will consider Collins’ claim.

      Our standard of review of the discretionary aspects of a sentence is as

follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

Additionally, our review of the discretionary aspects of a sentence is confined

by the statutory mandates of 42 Pa.C.S.A. §§ 9871(c) and (d).

    We must vacate a sentence if the trial court erroneously applied the

guidelines, if the circumstances would cause the application of the guidelines

to be clearly unreasonable, or if the court sentenced outside the guidelines in




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an unreasonable manner. 42 Pa.C.S.A. § 9871(c). In reviewing the record

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.A. § 9871(d).

     Collins concedes that the sentences are legal and within the standard

range.   Appellant’s Briefs, at 8.   Therefore, he must demonstrate that the

application of the guidelines was clearly unreasonable.      42 Pa.C.S.A. §

9871(c)(2). He has failed to do so.

     The Honorable John P. Capuzi sentenced Collins within the standard

range.   He also chose for those sentences to run consecutively instead of

concurrently. At the sentencing hearing, Judge Capuzi had access to a pre-

sentence investigation report. When a sentencing court has the benefit of a

pre-sentence, we “presume that the court was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with any mitigating factors.” Commonwealth v. Seagraves, 103 A.3d 839,

842 (Pa. Super. 2014). Furthermore, imposing a consecutive rather than a

concurrent sentence is within the sound discretion of the sentencing court.




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Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (citations

omitted).

        The court had informed Collins of the maximum sentence during the

plea but noted that he did not know how severe the sentence would be. N.T.

Sentencing, 8/4/17, at 48. The court also believed that Collins was expressing

remorse. Id. at 49. However, the court found these factors outweighed by

other circumstances. Id. at 48. Specifically, the court noted that: Collins

had been selling drugs since he was a juvenile, id. at 49; Collins should have

been aware of the risk in which he was placing others, id. at 48-49; Collins

had been provided treatment for drug addiction but did not take advantage of

it, id. at 49; and Collins had a high risk of reoffending. Id. at 51.

        The decision to impose a consecutive sentences was well within the

discretion of the sentencing court. See Zirkle, 107 A.3d at 133. In light of

the foregoing, we cannot conclude that the sentence is clearly unreasonable

or   that   the   sentencing   court   failed   to   consider   Collins’   mitigating

circumstances. We find no abuse of discretion. See Shugars, 895 A.2d at

1275.

        Judgments of sentence affirmed; petitions to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/19




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