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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHAZ MONTIE MATHIS, : No. 1884 WDA 2015
Appellant

Appeal from the Judgment of Sentence, October 29, 2015,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0001397-2015

BEFORE: FORD ELLIO`|_|', P.J.E., LAZARUS AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIO'|'|', P.J.E.: FILED NOVEMBER 08, 2016

Appellant, Chaz Montie Mathis, appeals from the October 29, 2015
aggregate judgment of sentence of 90 to 180 months' imprisonment, with
credit for time-served, imposed after he pled guilty to possession with intent
to deliver (“PWID”) and unlawful possession of a firearm.1
Contemporaneously with this appeal, counsel has requested leave to
withdraw in accordance with Anders v. California, 386 U.S. 738 (1967),
and its progeny. After careful review, we grant counsel's petition to

withdraw and affirm the judgment of sentence.2

 

1 35 Pa.C.S.A. § 780-113(a)(30) and 18 Pa.C.S.A. § 6105, respectively.

2 The Commonwealth has indicated that it will not be filing a brief in this
matter.

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The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows. On April 20, 2015, members of the Erie
Police Department arrested appellant after he was found in constructive
possession of 28 grams of crack cocaine and a .9 mm handgun in the
first-floor entryway of 2218 Plum Street. (See criminal complaint, 4/20/15
at 2; criminal information, 6/25/15 at 1111 1-3.) On September 9, 2015,
appellant pled guilty to PWID and unlawful possession of a firearm in
connection with this incident. As noted, appellant was sentenced to an
aggregate term of 90 to 180 months' imprisonment, with credit for time
served, on October 29, 2015.3 On November 5, 2015, appellant filed a
post-sentence motion to modify his sentence on the basis that “it was an
abuse of discretion to run the sentences consecutive." (Motion for post-
sentence relief, 11/5/15 at 11 5.) The trial court subsequently granted
appellant's motion and ordered that the sentence imposed in the instant
matter run concurrent to the sentence imposed at Docket No. 1584 of 2015.
This timely appeal followed on November 30, 2015. Thereafter, on July 18,
2016, appellant's counsel filed a motion and brief to withdraw from
representation in accordance with Anders. Appellant did not respond to

counsel's motion to withdraw.

 

3 The record reflects that on October 29, 2015, appellant was also sentenced
to a consecutive term of 12 to 24 months' imprisonment for possession of a
controlled substance at Docket No. 1584 of 2015. This sentence is not a
subject of this appeal.

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In her Anders brief, counsel raises the following issue on appellant's
behalf.
Whether [] appellant's sentence is manifestly
excessive, clearly unreasonable and inconsistent with
the objectives of the Sentencing Code?

Anders brief at 3.

“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.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.
2010) (citation omitted). In order to withdraw pursuant to Anders,
“counsel must file a brief that meets the requirements established by our
Supreme Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009).” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014)
(parallel citation omitted). Specifically, counsel's Anders brief must comply

with the following requisites:

(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.

Id. (citation omitted).

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Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his client." Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief
must be accompanied by a letter that advises the client of the option 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."
Id. “Once counsel has satisfied the above requirements, it is then this
[c]ourt's duty to conduct its own review of the trial court's proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous." Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.
2007) (en banc) (citation and internal quotation marks omitted).

Instantly, we conclude appellant's counsel has satisfied the technical
requirements of Anders and Santiago. Counsel has identified the pertinent
factual and procedural history and made citation to the record. Counsel has
also raised one discretionary sentencing issue that could arguably support an
appeal, but ultimately concludes that the appeal is wholly frivolous. Counsel
has also attached to her petition a letter to appellant, which meets the
notice requirements of Millisock. Accordingly, we proceed to conduct an
independent review of the record to determine the accuracy of counsel's

conclusion that this appeal is wholly frivolous.

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Appellant argues his sentence of 90 to 180 months' imprisonment is
“manifestly excessive, clearly unreasonable and inconsistent with the
objectives of the Sentencing Code . . . given the mitigating factors of his
case." (Anders brief at 7.) Appellant avers that the trial court should have
addressed “the fact that he took responsibility for his action by entering a
plea of guilty and the fact that he is a caregiver for his elderly mother who
recently suffered a stroke." (Id. at 7-8, citing notes of testimony, 10/29/15
at 13.) Appellant further contends the trial court erred in failing to consider
the factors set forth in 42 Pa.C.S.A. § 9721(b).4 (Id. at 8.)

Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. See Commonwealth v. Allen, 24 A.3d
1058, 1064 (Pa.Super. 2011). Rather, an appellant challenging the
discretionary aspects of his sentence must invoke this court's jurisdiction by
satisfying the following four-part test:

(1) whether the appeal is timely; (2) whether
[a]ppellant preserved his issue; (3) whether
[a]ppellant'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 Read in relevant part, Section 9721(b) provides that:

the court shall follow the general principle that the
sentence imposed should call for confinement that is
consistent with the protection of the public, the
gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the
rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b).

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(4) whether the concise statement raises a
substantial question that the sentence is appropriate
under the sentencing code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).

Instantly, the record reveals that appellant has filed a timely notice of
appeal and has preserved his sentencing issue, albeit sparingly, in his
post-sentence motion. Appellant's counsel has also included a statement in
her Anders brief that comports with the requirements of Pa.R.A.P. 2119(f).
(See Anders brief at 4-6.) Accordingly, we must determine whether
appellant has raised a substantial question.

“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis." Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(citation omitted). “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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),
appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

Appellant's claim, at best, merely suggests that the sentencing court

should have either given different weight to the various circumstances

before it imposed the sentence. Generally, “a claim that the sentencing

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court failed to consider or accord proper weight to a specific sentencing

II

factor does not raise a substantial question. Commonwealth v. Caldwell,
117 A.3d 763, 769 (Pa.Super. 2015), appeal denied, 126 A.3d 1282 (Pa.
2015) (citation omitted). Likewise, “a claim of 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).

However, to the extent that appellant argues that the trial court
imposed an excessive sentence without considering the relevant factors set
forth in Section 9721(b), including his rehabilitative needs, we find that this
portion of his claim does present a substantial question. See, e.g.,
Caldwell, 117 A.3d at 770 (stating, a challenge to “consecutive sentences
as unduly excessive, together with [a] claim that the court failed to consider
[the] rehabilitative needs” of the appellant presents a substantial question).
Accordingly, we proceed to consider the merits of this discretionary aspects
of sentencing claim.

When reviewing a challenge to the discretionary aspects of sentencing,
we determine whether the trial court has abused its discretion.

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 [a]ppellant must establish, by reference to the

record, that the sentencing court ignored or
misapplied the law, exercised its judgment for

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reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal
denied, 117 A.3d 297 (Pa. 2015) (citation omitted). “[This Court must
accord the sentencing court great weight as it is in [the] best position to
view the defendant's character, displays of remorse, defiance or indifference,
and the overall effect and nature of the crime." Commonwealth v.
Ventura, 975 A.2d 1128, 1134 (Pa.Super. 2009), appeal denied, 987 A.2d
161 (Pa. 2009) (citation omitted).

Contrary to appellant's claim, the record reveals that the trial court
properly considered and weighed all the relevant factors of Section 9721(b)
in fashioning appellant's standard-range sentence. Specifically, at the
October 29, 2015 sentencing hearing, the trial court reasoned as follows:

The court has considered the Pennsylvania
Sentencing Code, the presentence [(“PSI")] report,
and the Pennsylvania Guidelines on Sentencing.
[The c]ourt has also considered [appellant's] age, his
background, his character and rehabilitative needs,
the nature, circumstances, and seriousness of the
offense, the protection of the community and
statements of [appellant's] counsel, [appellant], the
witness for [appellant], and the attorney for the
Commonwealth.

[The c]ourt acknowledges [appellant's]
acceptance of responsibility, his plea of guilty, and
notes that such, hopefully, is the first step toward
rehabilitation. The court has grave concerns,
however, because [appellant] does have a prior
criminal history[,] which gives him a prior record
score of five. What concerns the court even more is
the fact that prior criminal history involves drugs,

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guns, and violence, and [appellant] is now back
before the court for offenses involving drugs and
guns.

There is no doubt, [appellant], you knew full
well what you were doing was wrong. You had been
convicted of offenses similar to these in the past.
You knew what the consequences were likely to be,
but you were willing to take the risk because
apparently the rewards, in your mind anyway, were
at least worth the chance that you may or may not
be caught. You eventually were apprehended
obviously and are before the court now. And it
appears you are willing to accept the consequences
of your actions.

The court would have thought that you, being
[an] intelligent man, would have made a different
decision and would have realized that, look, I did this
before, it's wrong, I have been caught before, I've
got to go to a state penitentiary, I have been on
parole before, and I can't do this again. It's not only
against the law, but it's certainly not in your best
interests.

But that's not the decision you made. You
made a decision to do it again and to involve
yourself in drugs and guns once more. You know as
well as anybody that this poison is taking a heavy
toll on our community. You know as well as anybody
that loaded guns have led to violence in our
community.

And you know as well as anybody, if you
wanted to, you could probably be a pretty good role
model on the right side of the law, but you've chosen
to be a role model on the other side. And young
people in the community see you out there dealing
drugs and carrying guns. It's a good idea for you;
it's a good idea for them. That is indeed unfortunate
because I think you've wasted a great deal of
potential and you're going to spend a significant
amount of time sitting behind bars doing no good to
anyone including yourself.

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At this point it's apparent that you must be
incapacitated because you continue to engage in this
behavior, and that you've had the opportunity on a
number of occasions to change and either aren't
willing or haven't been able to do so.
The court will order the following sentences:
They will be from the standard range of the
sentencing guidelines because you pled guilty and
accepted responsibility, although I would note, based
on your past history, there would be reason to go
into the aggravated range, but the court will give
you the benefit of the standard-range sentence at
this time.
Notes of testimony, 10/29/15 at 16-18.
The record further reflects that the trial court was in possession of a
PSI report. Where the trial court has the benefit of a PSI report, “we shall
. . . presume that the sentencing judge was aware of relevant information
regarding the defendant's character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Antidormi, 84 A.3d
736, 761 (Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014)
(citation omitted).
Based on the foregoing, we agree with counsel's assessment that this
appeal is wholly frivolous and that appellant is entitled to no relief on his
discretionary aspects of sentence claim. Accordingly, we grant counsel's

petition to withdraw and affirm the October 29, 2015 judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

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Judgment Entered.

 

Joseph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

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