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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    WALTER JORDAN,                             :
                                               :
                       Appellant               :   No. 3855 EDA 2017

            Appeal from the Judgment of Sentence October 3, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003741-2017


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

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 18, 2018

        Appellant Walter Jordan appeals from the Judgment of Sentence

imposed after he entered an open guilty plea to Driving Under the Influence

(“DUI”)-Third Offense, and Driving While License Suspended-DUI Related.1

Appellant’s counsel seeks to withdraw pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). Upon review, we grant Counsel’s Petition to Withdraw and affirm the

Judgment of Sentence.

        On October 2, 2017, while represented by counsel, Appellant entered

an open guilty plea to the above charges. At Appellant’s request, the court

immediately sentenced him to a term within the mitigated range of the

Sentencing Guidelines of 11½ to 23 months’ incarceration followed by 3 years’
____________________________________________


1   75 Pa.C.S. § 3802(a)(1) and 75 Pa.C.S. § 1543(b)(1).
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probation for the DUI. See N.T., 10/2/17, at 11-12. The court imposed a

concurrent term of 60 days’ incarceration for the Driving with a Suspended

License offense. The court denied Appellant’s Post-Sentence Motions2 after a

hearing.

       Appellant timely appealed on November 2, 2017.3 Appellant’s counsel

filed a Pa.R.A.P. 1925(c)(4) Statement, and the trial court filed a Rule 1925(a)

Opinion.

       In the Anders Brief, counsel raised one “Point of Arguable Merit”

challenging the sentence of 11½ to 23 months’ incarceration as too harsh.

Anders Brief at 7.

       We first consider Counsel’s Petition to Withdraw. 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. Before counsel is permitted

to withdraw, he or she must meet the following requirements:

       First, counsel must petition the court for leave to withdraw and
       state that after making a conscientious examination of the record,
       he has determined that the appeal is frivolous; second, he must
       file a brief referring to any issues in the record of arguable merit;
       and third, he must furnish a copy of the brief to the defendant and
       advise him of his right to retain new counsel or to himself raise
       any additional points he deems worthy of the Superior Court’s
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2Appellant filed counseled as well as pro se Post-Sentence Motions. The trial
court properly concluded that “hybrid representation” is prohibited, and
concluded that Appellant’s pro se filings were legal nullities. Order, 10/17/17,
at 2 n.3.

3On November 13, 2017, Appellant filed a pro se Motion for Early Parole,
which the trial court denied on November 14, 2017.

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      attention.

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super. 2008)

(citations omitted).

      [I]n 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).                 “[W]hen

counsel meets his or her obligations, ‘it then becomes the responsibility of the

reviewing court to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Id. at 355 n.5.

      Here, Counsel’s Petition to Withdraw states that he has made a

conscientious examination of the record, determined that the appeal is wholly

frivolous, notified Appellant of his opinion and provided him with a copy of his

Anders Brief, and advised Appellant that he may proceed pro se or retain

private counsel. Furthermore, we are satisfied that Counsel’s Anders brief

complies with the dictates of Santiago.          We therefore proceed to an

independent review of Appellant’s sole issue—a challenge to the discretionary




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aspects of his sentence.4 See Bynum-Hamilton, 135 A.3d at 183.

       With respect to our review of a challenge to the discretionary aspects of

sentence, this Court has stated:

       A challenge to the discretionary aspects of sentencing does not
       entitle an appellant to review as of right. An appellant challenging
       the discretionary aspects of his sentence must invoke this Court’s
       jurisdiction by satisfying a four-part test: (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 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).

Bynum-Hamilton, 135 A.3d at 184 (some citations omitted). Where counsel

files an Anders Brief, we may overlook the lack of a Rule 2119(f) statement.

Id.

       Here,    Appellant    filed   a   timely   Notice   of   Appeal   and   sought

reconsideration of his sentence in a timely Post-Sentence motion. The Anders

Brief includes a “Petition for Allowance of Appeal from the Discretionary

Aspects of the Judgment of Sentence,” but Counsel concludes, after citing

relevant case law, that Appellant’s challenge to his sentence as harsh does

not raise a substantial question. Counsel’s conclusion does not impede our

independent consideration of whether the issue presents a substantial



____________________________________________


4Appellant did not respond to Counsel’s Petition to Withdraw and Anders
Brief.


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question.

      In determining whether a substantial question exists, this Court
      does not examine the merits of whether the sentence is actually
      excessive. Rather, we look to whether the appellant has forwarded
      a plausible argument that the sentence, when it is within the
      guideline ranges, is clearly unreasonable. Concomitantly, the
      substantial question determination does not require the court to
      decide the merits of whether the sentence is clearly unreasonable.

Com. v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (internal citation

omitted).

      In challenging a sentence that falls within the guidelines, a defendant

must “advance[] 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.”    Commonwealth v. Sierra, 752 A.2d 910, 912-13 (Pa. Super.

2000).

      At the hearing on the Motion for Reconsideration, the court noted that

it had mitigated the standard range sentence to a minimum of 11½ months

so   that   Appellant   could stay in county jail, recognizing     Appellant’s

circumstances, i.e., his family, work ethic, and show of remorse at the time

of the plea, while also considering Appellant’s prior record.       See N.T.

Reconsideration, 10/24/17, 4, 19-20.    See also N.T. Sentencing at 18-19

(noting mitigation of sentence). Our independent review of the record reveals

no evidence that would support an argument that the mitigated standard

range sentence was “inconsistent with a specific provision of the Sentencing


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code” or “contrary to the fundamental norms underlying the sentencing

process.” Sierra, supra at 912-13. Thus, we conclude Appellant has failed

to raise a substantial question.

      Further, 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. See Commonwealth v. Yorgey, 188 A.3d 1190, 1198-99 (Pa.

Super. 2018). We therefore grant Counsel’s Petition to Withdraw and affirm

the Judgment of Sentence.

      Petition to Withdraw granted. Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/18




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