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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                                 :
                                                 :
    EDWIN NAVARRO,                               :
                                                 :
                         Appellant               :         No. 645 MDA 2018

        Appeal from the Judgment of Sentence Entered March 19, 2018
                in the Court of Common Pleas of Adams County
            Criminal Division at No(s): CP-01-CR-0001106-2017

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

MEMORANDUM BY MUSMANNO, J.:                            FILED DECEMBER 12, 2018

        Edwin Navarro (“Navarro”) appeals from the judgment of sentence

entered following his negotiated guilty plea to driving under the influence of

controlled substances (“DUI”) (first degree misdemeanor), as a third offense

for sentencing purposes.1            Counsel for Navarro has filed an Application to

Withdraw (“Application”) from his representation of Navarro, and a brief

pursuant     to        Anders   v.     California,   386   U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s

Application and affirm Navarro’s judgment of sentence.

        On December 14, 2017, Navarro pled guilty to DUI. Pursuant to the

negotiated plea agreement, Navarro was to serve “60 months [of]

intermediate punishment[,] with 12 months restrictive and the remainder on

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1   See 75 Pa.C.S.A. § 3802(d)(1)(i).
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restorative sanctions.” Trial Court Opinion, 5/18/18, at 1. On January 11,

2018, the trial court sentenced Navarro to 60 months of county intermediate

punishment, with 12 months to be served on restrictive intermediate

punishment.   Of those 12 months, Navarro was to serve 8 months in the

Adams County Prison, and four months under house arrest.

      On February 7, 2018, Navarro timely filed a Notice of Appeal.         On

February 8, 2018, the trial court entered an Order directing Navarro to file a

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal.

Notwithstanding, the next day, on February 9, 2018, the trial court entered

an Order vacating Navarro’s judgment of sentence, and scheduling a new

sentencing hearing for March 19, 2018.      On February 12, 2018, Navarro

withdrew his appeal of the January 11, 2018 judgment of sentence.

      On March 19, 2018, following a hearing, the trial court again sentenced

Navarro to 60 months of county intermediate punishment, with 12 months to

be served on restrictive intermediate punishment. Once again, the trial court

required Navarro to serve 8 months in the Adams County Prison, and four

months under house arrest. Navarro timely filed a Notice of Appeal, and a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of

on appeal. Thereafter, counsel filed the Application and an Anders brief.

      “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s




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request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc).

     Prior to withdrawing as counsel on a direct appeal under Anders,
     counsel must file a brief that meets the requirements established
     by our Supreme Court in Santiago. 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 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.

     Santiago, 978 A.2d at 361. 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. Nischan, 928 A.2d 349, 353 (Pa. Super.
     2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

     Here, the Application states that counsel has reviewed the record and

concluded that the appeal is frivolous. Application, 7/9/18, at ¶ 2. Counsel

states that he has notified Navarro of his intention to withdraw, furnished

Navarro with copies of the Application and Anders Brief, and advised Navarro

of his right to retain new counsel or proceed pro se to raise any points he




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believes worthy of this Court’s attention. Id. at ¶ 4, Exhibit E. Accordingly,

counsel has satisfied the procedural requirements of Anders.

        Counsel’s Anders Brief also comports with the requirements of

Santiago, as it includes a summary of the relevant history of the case,

identifies two potential claims for review, and states counsel’s conclusion that

the claims are without merit and frivolous. Accordingly, counsel has complied

with the minimum requirements of Anders/Santiago.

        The Anders Brief presents the following claims for our review:

        [A.] Whether the [sentencing] court abused its discretion by
        denying [Navarro’s] request to serve his sentence in house arrest
        for more than one[-]third of his sentence, while sentencing him to
        serve two[-]thirds in the Adams County Prison[?]

        [B.] Whether the Commonwealth timely filed the current
        charges[?]

Anders Brief at 6.2

        The Anders Brief first challenges the discretionary aspects of Navarro’s

sentence.     “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017).             Prior to reaching the merits of a

discretionary sentencing issue,

        [w]e conduct a four-part analysis to determine: (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
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2   There is no pro se filing by Navarro.

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      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).

Grays, 167 A.3d at 815-16 (citation omitted).

      Here, Navarro timely filed his Notice of Appeal and arguably preserved

his claim at sentencing. See Trial Court Opinion, 5/18/18, at 1 (wherein the

trial court acknowledges Navarro’s request at sentencing to deviate from the

“standard arrangement” regarding the serving of his sentence in the county

re-entry facility and on house arrest). Counsel has included in the Anders

Brief a statement of reasons relied upon for allowance of appeal, as required

by Pa.R.A.P. 2119(f).   Accordingly, we next consider whether Navarro has

raised a substantial question that the sentence imposed is not appropriate

under the Sentencing Code. See Grays, 167 A.3d at 816.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Battles, 169 A.3d

1086, 1090 (Pa. Super. 2017).       “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. (citation omitted).

      Here, Navarro claims that the trial court failed to consider his ability to

maintain employment, and that incarceration would force Navarro to change

his treatment plan. Anders Brief at 10. This Court has held that “a claim of


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inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.

Super. 2013) (citation omitted); cf. Commonwealth v. Caldwell, 117 A.3d

763, 769-70 (Pa. Super. 2015) (en banc) (recognizing that “an excessive

sentence claim—in conjunction with an assertion that the court failed to

consider mitigating factors—raises a substantial question.”). Thus, Navarro’s

claims fail to raise a substantial question.3

       Navarro also claims that the Commonwealth failed to timely file the

criminal case because he committed another DUI offense between the time of

the incident and the sentencing date.            Anders Brief at 14.   However, as

counsel points out, the Commonwealth was required to file any charges within

two years of the incident, pursuant to 42 Pa.C.S.A. § 5552(a). Anders Brief

at 14. Thus, Navarro’s claim lacks merit because the Commonwealth timely

filed the charges.

       Finally, our independent review of the record discloses no additional

non-frivolous issues that could be raised on appeal.           We therefore grant

counsel’s Application, and affirm Navarro’s judgment of sentence.




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3In addition, there is no merit to Navarro’s sentencing claim, as the trial court
acted within its discretion in sentencing Navarro.

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     Application to Withdraw granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2018




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