J-S41019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT J. DRUST, JR.

                            Appellant                No. 2155 MDA 2014


           Appeal from the Judgment of Sentence September 5, 2014
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0000384-2014,
             CP-40-CR-0001505-2014, CP-40-CR-0002326-2013,
              CP-40-CR-0003623-2013 CP-40-CR-0003624-2013


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 06, 2015

        Robert J. Drust, Jr. appeals from his judgment of sentence, entered in

the Court of Common Pleas of Luzerne County, after entering open guilty

pleas to one count each of terroristic threats, resisting arrest, possession of

a controlled substance, materially false written statement for purchase,

delivery or transfer of a firearm, and possession with intent to deliver a

controlled substance, two counts each of possession of drug paraphernalia,

and recklessly endangering another person, and three counts each of




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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harassment, and simple assault.1               Drust’s counsel also seeks to withdraw

pursuant to the dictates of Anders v. California, 386 U.S. 738 (1967),

Commonwealth           v.    Santiago,         978   A.2d   349   (Pa.   2009),   and

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

we grant counsel’s petition to withdraw and affirm Drust’s judgment of

sentence.

The trial court set forth the procedural history of the case as follows:

          [Drust] entered guilty pleas under docket numbers 2326,
          3623 and 3624 of 2013 on March 17, 2014 and entered
          guilty pleas under docket numbers 384 and 1505 of 2014
          on July 7, 2014. A Pre-Sentence Investigation (PSI) was
          completed by the Luzerne County Adult Probation and
          Parole Department, and a sentencing hearing was held on
          September 5, 2014 when we imposed an aggregate period
          of incarceration of [Drust] for a minimum of twenty (20)
          months to a maximum of forty (40) months to be served in
          a state correctional institution. [Drust] was subsequently
          advised of his post-sentence rights and remanded. On
          September 11, 2014, [Drust] filed a Post Sentence
          Motion/Request to Modify Sentence which we denied by
          Order of September 30, 2014.

Trial Court Opinion, 12/30/14, at 2-3.

       On October 28, 2014, Drust filed a timely notice of appeal. Drust filed

a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(b), on December 4, 2014. In his 1925(b) statement appellate counsel

____________________________________________


1
  18 Pa.C.S. § 2706(a)(1); 18 Pa.C.S. § 2701(a)(1); 18 Pa.C.S. § 5104; 35
Pa.C.S. § 780-113(a)(32); 18 Pa.C.S. § 2705; 18 Pa.C.S. § 2709(a)(1); 18
Pa.C.S. § 2702(a)(4).



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indicated that “there are no-non-frivolous issues which can be raised on

appeal,” and further indicated her intent to file an Anders brief with this

Court. The Commonwealth indicated to the trial court that it would not file a

response to Drust’s 1925(b) statement and, instead, agreed with appellate

counsel that any appeal is entirely frivolous and without merit.

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

review the merits of the underlying issues without first passing on the

request to withdraw.” Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa.

Super. 2005).    Furthermore, counsel must comply with certain mandates

when seeking to withdraw pursuant to Anders, Santiago, and McClendon.

These mandates are not overly burdensome and have been summarized as

follows:

      Direct appeal counsel seeking to withdraw under Anders must
      file a petition averring that, after a conscientious examination of
      the record, counsel finds the appeal to be wholly frivolous.
      Counsel must also file an Anders brief setting forth issues that
      might arguably support the appeal along with any other issues
      necessary for the effective appellant presentation thereof.

      Anders counsel must also provide a copy of the Anders petition
      and brief to the appellant, advising the appellant of the right to
      retain new counsel, proceed pro se or raise any additional points
      worthy of this Court’s attention.

      If counsel does not fulfill the aforesaid technical requirements of
      Anders, this Court will deny the petition to withdraw and
      remand the case with appropriate instructions (e.g., directing
      counsel either to comply with Anders or file an advocate’s brief
      on Appellant’s behalf).




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Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations

omitted).

        Here, counsel has provided the facts and procedural history of the

case, and avers that, after thorough review of the record, she finds the

appeal to be wholly frivolous, and states her reasons for this conclusion.

Counsel provided a copy of the petition and Anders brief to Drust, advised

him of his right to retain new counsel or proceed pro se, and raise any

additional points he deems worthy of this Court’s attention. Accordingly, we

find counsel has met the requirements of Anders, McClendon and

Santiago.

        Once counsel has satisfied the above requirements, this Court

conducts its own review of the proceedings and renders an independent

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

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

        In his Anders brief, the sole issue raised by counsel is whether Drust’s

sentence of 20 to 40 months’ incarceration at a state correctional institution

was harsh and excessive when he was found eligible for the Luzerne County

DA/RIP Program.2         Drust’s allegation that his sentence was harsh and

excessive is a challenge to the discretionary aspect of his sentence, which is

not appealable as of right. Rather, an appellant challenging the sentencing


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2
    Drug and Alcohol Treatment-based Restrictive Intermediate Punishment.



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court’s discretion must invoke the Court’s jurisdiction by satisfying a four-

part test. Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).

      We 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
      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. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

      Here, Drust filed a timely notice of appeal, and has preserved his claim

by raising it at his sentencing hearing and in his Rule 1925(b) statement.

Finally, Drust’s counsel has included in his Anders brief a statement

pursuant to Pa.R.A.P. 2119(f), claiming that the trial court imposed an

excessive sentence.

      Judicial review of the discretionary aspects of a sentence is granted

only upon a showing that there is a substantial question that the sentence

was inappropriate and contrary to the fundamental norms underlying the

Sentencing Code.      Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987). 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 in the Sentencing Code; or (2) contrary

to   the   fundamental   norms   which   underlie   the   sentencing   process.”




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Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en

banc).

      Drust argues that he raises a substantial question as to whether the

imposition his sentence of 20 to 40 months’ incarceration was excessive

because the trial court failed to consider his past and current health history.

Anders Brief at 5-6. Specifically, he argues that he should have been given

a chance in the local RIP program because he had not had any recent

Indirect Criminal Contempt (ICC) violations. N.T. Sentencing, 9/5/14 at 8.

      During his sentencing hearing, Drust cited to his traumatic brain

injury, impulse control issues, and the dissolution of his marriage as reasons

for his offenses occurring within such a short period of time.            N.T.

Sentencing, 9/5/14, at 9-7. Drust also asked the trial court to consider his

current treatment and ability to stay drug free.            Id. at 2-9. The

Commonwealth, on the other hand, emphasized the serious nature of the

offenses that occurred during that time, including Drust threatening the

victim with the use of a firearm, as well as Drust’s ongoing and serious drug

problem. Id. at 9-10.

      An allegation that the sentencing court failed to consider or did not

adequately consider certain factors does not raise a substantial question that

the sentence imposed was inappropriate so as to justify allowance of

appellate review. Commonwealth v. Wagner, 702 A.2d 1084 (Pa. Super.

1997); See also Commonwealth v. Petacci, 764 A.2d 582 (Pa. Super.

2000) (citation omitted) ("A [bald] claim of excessiveness of sentence does

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not raise a substantial question so as to permit appellate review where the

sentence is within the statutory limits."); Commonwealth v. Mobley, 581

A.2d 949, 952 (Pa. Super. 1990) (claim that sentence imposed for narcotics

offense failed to take into consideration defendant's rehabilitative needs and

was manifestly excessive did not raise a substantial question where sentence

was     within    statutory      limits    and   within   sentencing   guidelines).

       Drust has failed to raise a substantial question, and therefore is not

entitled to review of the discretionary aspect of his sentence.3 Moreover, we

agree that his appeal is wholly frivolous and that counsel should be

permitted to withdraw.

       Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015


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3
  Even if we were to find that Drust’s claim raises a substantial question, we
would still find the appeal frivolous because the court noted that the
seriousness of the crimes, the impact that the crimes had on the victim, and
Drust’s pre-sentence investigation report were primary reasons for imposing
a 20-40 month sentence. Moreover, the court did consider Drust’s past and
current history, and noted it as the reason why the majority of the counts
were ordered to run concurrently. See N.T. Sentencing, 9/5/14, at 11-12.



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