J-S63038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
DONALD FRANCIS,                          :
                                         :
                  Appellant              :            No. 916 EDA 2015

         Appeal from the Judgment of Sentence February 11, 2015
             in the Court of Common Pleas of Lehigh County,
            Criminal Division, No(s): CP-39-CR-0004292-2014;
                         CP-39-CR-0004317-2014

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                  FILED DECEMBER 22, 2015

     Donald Francis (“Francis”) appeals from the judgment of sentence

imposed following his guilty plea to possession with intent to deliver a

controlled substance (heroin) and possession of a controlled substance

(cocaine).   See 35 P.S. § 780-113(a)(16), (30).      Additionally, Francis’s

counsel, Amy E. Sonin, Esquire (“Sonin”), has filed a Petition to Withdraw as

counsel and an accompanying brief pursuant to Anders v. California, 386

U.S. 738, 744 (1967).    We grant Sonin’s Petition to Withdraw and affirm

Francis’s judgment of sentence.

     On January 14, 2015, Francis pled guilty to the above-mentioned

crimes at two separate case numbers. In exchange for pleading guilty, the

Commonwealth agreed to withdraw certain charges, and agreed that

Francis’s minimum sentences would not exceed the mid-point of the
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standard range of the sentencing guidelines. On February 11, 2015, the trial

court sentenced Francis to fifteen months to four years in prison for the

possession with intent to deliver conviction and a concurrent prison term of

three to twelve months for the possession of a controlled substance

conviction.     Francis filed a Post-Sentence Motion, which the trial court

denied.

      Francis    filed   a   timely        Notice   of   Appeal   and   a   court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

      On appeal, Sonin has filed an Anders Brief raising the following

question:

      Whether the trial court abused its discretion by imposing a harsh
      and excessive sentence[,] which was manifestly unreasonable[,]
      in that the court failed to fully state its reasons in the imposition
      of its sentence, the court failed to fashion a sentence specific to
      [Francis] and his personal circumstances, and the court ordered
      a pre-sentence investigation report and then sentenced [Francis]
      to a harsher sentence than was recommended in that report
      without noting specific reasons for doing so?

Anders Brief at 6.       Sonin filed a separate Petition to Withdraw with this

Court on November 23, 2015.1                 Francis filed neither a pro se brief, nor

retained alternate counsel for this appeal.

      We must first determine whether Sonin has complied with the dictates

of   Anders     in   petitioning      to     withdraw    from     representation.    See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)

1
   We note that Sonin initially failed to file a petition to withdraw, despite
filing an Anders Brief. See Commonwealth v. Francis, 916 EDA 2015
(Pa. Super. filed November 12, 2015) (Judgment Order).


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(stating that “[w]hen faced with a purported Anders brief, this Court may

not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citation omitted).

      Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).                 “Once

counsel has satisfied the [Anders] requirements, it is then this Court’s duty

to conduct its own review of the trial court’s proceedings and render an




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

Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006).

      Sonin has now complied with each of the requirements of Anders and

Santiago.     Sonin indicates that she has conscientiously examined the

record, case law, and statutes, and has determined that an appeal would be

frivolous. Further, Sonin’s brief meets the standards set forth in Santiago

by providing a factual summation of Francis’s case, with support for her

conclusion that the appeal is frivolous. Finally, Sonin provided a copy of her

letter to Francis, providing him a copy of the brief, informing him of her

intention to withdraw as counsel, and advising him of his right to retain new

counsel, proceed pro se, and file additional claims.            Because Sonin has

complied    with   the    procedural   requirements       for   withdrawing   from

representation, we will independently review the record to determine

whether Francis’s appeal is, in fact, wholly frivolous.

      On appeal, Francis challenges the discretionary aspects of his

sentence.   It is well-settled that upon entry of a guilty plea, a defendant

generally waives all defects and defenses except those concerning the

validity of the plea, the jurisdiction of the trial court, and the legality of the

sentence imposed.        Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa.

Super. 2003).      However, when the plea agreement does not contain a

bargain for a specific or stated term of sentence, the defendant may appeal

the discretionary aspects of his sentence. Commonwealth v. Tirado, 870



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A.2d 362, 365 n.5 (Pa. Super. 2005). Here, while the Commonwealth and

Francis agreed that his minimum sentence should be at the midpoint of the

standard range of the sentencing guidelines, Francis’s guilty plea did not

include a specific agreement regarding the length of sentence. Thus, we will

address Francis’s discretionary aspects of sentencing claim. See id.

      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).      Prior to reaching the merits of a discretionary

sentencing issue,

      [this Court conducts] 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, [see] 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, [see] 42
      Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      Here, Francis filed a timely Notice of Appeal, raised his claims in a

Post-Sentence Motion, and Sonin included a Rule 2119(f) Statement in the

Anders brief. Francis’s claim that his standard range sentence is excessive,

as the trial court failed to consider mitigating factors and all relevant factors

under 42 Pa.C.S.A. § 9721(b), raises a substantial question.                See

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (stating

that failure “to consider relevant sentencing criteria, including the protection



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of the public, the gravity of the underlying offense and the rehabilitative

needs” of the defendant raised a substantial question); Commonwealth v.

Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (stating that an excessiveness

sentence claim, in conjunction with an assertion that the court did not

consider mitigating factors, raised a substantial question).2

      Our standard of review for challenges to discretionary aspects of

sentencing is well settled:

      [S]entencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias
      or ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa. Super. 2006)

(citation omitted).

      Francis asserts that the trial court abused its discretion by imposing an

excessive sentence. Anders Brief at 14-18. Francis contends that the trial

court failed to consider the section 9721(b) factors and various mitigating

factors.   Id. at 16-18.      Francis argues that while his sentence is in the

standard range, the trial court ignored the sentencing recommendation in

the pre-sentence investigation report.     Id. at 16, 18.   Francis also claims



2
  Even if Francis failed to raise a substantial question, Anders requires that
we examine the merits of Francis’s claims to determine whether his appeal
is, in fact, “wholly frivolous” in order to rule upon counsel’s request to
withdraw. See Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa. Super.
1990) (stating that discretionary aspects of sentencing claims raised in an
Anders brief must be addressed on appeal, despite procedural violations).


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that the trial court failed to set forth its reasons for the severity of the

sentence. Id. at 16.

      At sentencing, the trial court had the benefit of a pre-sentence

investigation report. See N.T., 2/11/15, at 2; see also Commonwealth v.

Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (stating that “where the

trial court is informed by a pre-sentence report, it is presumed that the court

is aware of all appropriate sentencing factors and considerations, and that

where the court has been so informed, its discretion should not be

disturbed”) (quotation marks and citations omitted).      The trial court also

stated that it was aware of Francis’s addiction problems, his rehabilitative

needs, his prior record, and the recommendation of the pre-sentence

investigator.3 See N.T., 2/11/15, at 4-5, 7; id. at 8 (wherein the trial court

recommended that Francis be placed in “an institution to address his drug

addiction.”); see also Order, 2/25/15, at 3 (stating that the court

considered all of the factors under section 9721(b) and was cognizant of the

fact that Francis’s addiction problems were directly related to the criminal

conduct at issue).     Further, the trial court considered the sentencing

guidelines in rendering the concurrent standard range sentences.          N.T.,

2/11/15, at 2, 3, 6-7; see also Order, 2/25/15, at 1-3.       Accordingly, we




3
  The pre-sentence investigator recommended a sentence of 12½ months to
three years in prison for the possession with intent to deliver conviction.
Anders Brief at 15.


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conclude that the trial court did not abuse its discretion in imposing Francis’s

standard range sentences.

        Additionally, we have conducted an independent review of the record

and have found no appealable issues in this case relating to the jurisdiction

of the trial court, the legality of Francis’s sentence,4 or the validity of his

guilty plea.5   See Boyd, 835 A.2d at 816. Based upon the foregoing, we

conclude that Francis’s appeal is wholly frivolous, and Sonin is entitled to

withdraw as counsel. See Anders, 386 U.S. at 744-45.

        Petition to Withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2015




4
  As noted above, Francis pled guilty to two separate case numbers. Thus,
his sentences for the possession with intent to deliver a controlled substance
and possession of a controlled substance convictions do not merge.
5
    See N.T., 1/14/15, at 2-6; Written Plea Colloquy, 1/14/15, at 1-10.


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