J-S64034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                      v.

LUIS ORTIZ

                           Appellant                   No. 158 MDA 2017


          Appeal from the Judgment of Sentence January 5, 2017
In the Court of Common Pleas of Luzerne County Criminal Division at No(s):
                        CP-40-CR-0000865-2016,
           CP-40-CR-0000866-2016, CP-40-CR-0000867-2016,
                        CP-40-CR-0004303-2015


BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 13, 2017

        Appellant, Luis Ortiz, appeals from the judgment of sentence entered

in the Luzerne County Court of Common Pleas.          His attorney, Amanda M.

Young, Esq. (“Counsel”), has filed an Anders1 petition for leave to withdraw.

Counsel identifies the following issue on appeal: (1) whether the court

imposed a harsh and excessive sentence.         We grant Counsel’s petition to

withdraw and affirm.

        The trial court summarized the facts and procedural posture of this

case as follows:


*   Former Justice specially assigned to the Superior Court.
1   Anders v. California, 386 U.S. 738 (1967).
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           [Appellant] pled guilty to various charges as follows: On
        October 11, 2016, [Appellant] pled guilty on Information
        Number 430[3] of 2015 to Count 1, Indecent
        Assault─Person less than thirteen (13) years of age: 18
        [Pa.C.S. § 3126(a)(7)], graded as a felony of the third
        degree    (F3),   and    on    Count    2,   Corruption    of
        Minors─Defendant age eighteen (18) or above: 18 [Pa.C.S.
        § 6301(a)(1)(ii)], graded as a felony of the third degree
        (F3).

           On October 11, 2016, [Appellant] pled guilty on
        information Number 865 of 2016 to Count 1, Corruption of
        Minors─Defendant age eighteen (18) or above: 18 [Pa.C.S.
        § 6301(a)(1)(ii)], graded as a felony of the third degree
        (F3), and on Count 2, Indecent Exposure: 18 [Pa.C.S. §
        3127(a)], graded as a misdemeanor of the first degree
        (M1).

           On October 11, 2016, [Appellant] pled guilty on
        Information Number 866 of 2016 to Count 1, Indecent
        Assault─Person Less than sixteen (16) years of age: 18
        [Pa.C.S. § 3126 (a)(8)], graded as a misdemeanor of the
        second degree (M2).        Lastly, on October 11, 2016,
        [Appellant] pled guilty on number 867 of 2016 to Count 1,
        Aggravated Indecent Assault─Less than sixteen (16) years
        of age: 18 [Pa.C.S. 3125(a)(8)], graded as a felony of the
        second degree (F2).

                                 *    *    *

        Aggregate Sentence: Seventy-eight (78) to one
        hundred fifty-six (156) months followed by two (2)
        years’ probation.

           On January 10, 2017, [Appellant] filed a Motion for
        Reconsideration and on January 19, 2017, [he] also filed a
        Notice of Appeal. The Reconsideration of Sentence filed by
        [Appellant] was denied on January 23, 2012.[2]

2 See Pa.R.A.P. 905(a)(5) which provides: “A notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”




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              On January 26, 2017, an order was issued directing
           [Appellant] to fie of record a Concise Statement of Errors
           Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) . .
           ..

Trial Ct. Op., 6/20/17, at 1-3.3 On February 15, 2017, Appellant filed a

Motion for Extension of Time to File Concise Statement of Matters

Complained of on Appeal. On February 16, 2017, the court entered an order

granting Counsel for Appellant “an extension of 30 days after receipt of all

ordered transcripts . . . within which to file” a Rule 1925(b) statement. On

April 5, 2017, Counsel for Appellant filed a notice of intent to file an Anders

Brief.

         Counsel identifies the following issue in the Anders brief: “Whether

the imposition of a 78 to 156 month sentence to run [sic] is harsh and

excessive when [Appellant] took responsibility by pleading guilty and this is

his first offense.” Anders Brief at 1.

         “When 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.”       Commonwealth v. Wimbush, 951 A.2d

379, 382 (Pa. Super. 2008).

           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


3  See id. at       2   (specifying   individual   sentences   received   for   each
information).



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        [Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009)].
        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. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(some citations omitted).4

     If counsel complies with these requirements, “we will make a full

examination of the     proceedings in     the   lower   court and render   an




4 Our Supreme Court in Santiago “emphasized the difference between an
Anders brief, which offers an issue for a court’s consideration, but reflects
counsel’s candid assessment of the complete lack of merit in his client’s
case, and a merits brief, which implies that an issue is worthy of review and
has some chance of succeeding.” Santiago, 978 A.2d at 359-60.




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independent judgment [as to] whether the appeal is in fact ‘frivolous.’” Id.

at 882 n.7 (citation omitted).

       Instantly, Counsel provided a factual summary of the case with

citations to the record. Anders Brief at 1-3. Counsel explained the relevant

law and discussed why Appellant’s claim is meritless, and noted that she

found nothing in the record that could arguably support the appeal. Id. at

3-5. In conclusion, Counsel’s Anders brief stated: “Counsel for [Appellant]

has made a conscientious review of the record, believes that this appeal is

wholly frivolous, and requests permission to withdraw.” Id. at 5.

       Counsel also provided Appellant with a copy of the Anders brief and a

letter advising Appellant of his rights. Counsel’s Mot. to Withdraw, 8/10/17.

In light of the foregoing, we hold Counsel has complied with the

requirements of Santiago.        See Orellana, 86 A.3d at 879-80.   Appellant

has not filed a pro se or counseled brief.    We now examine the record to

determine whether the issue on appeal is wholly frivolous. See id. at 882

n.7.

       In the Anders brief, Appellant “asserts that his aggregate sentence of

a minimum 78 to a maximum 156 months[’] incarceration is excessive

because he accepted responsibility by pleading guilty and had a zero prior

record score.” Anders Brief at 3.

       Our review is governed by the following principles:

         Sentencing is a matter vested in the sound discretion of
         the sentencing judge, and a sentence will not be disturbed


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         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 appellant must establish,
         by reference to the record, that the sentencing court
         ignored or misapplied the law, exercised its judgment for
         reasons of partiality, prejudice, bias or ill will, or arrived at
         a manifestly unreasonable decision.

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation

omitted).

      “The right to appeal the discretionary aspects of a sentence is not

absolute.”   Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super.

2008).

         This Court may only reach the merits of an appeal
         challenging the discretionary aspects of sentence where it
         appears that there is a substantial question that the
         sentence imposed is not appropriate under the Sentencing
         Code. A substantial question will be found where the
         defendant advances a colorable argument that the
         sentence imposed is either inconsistent with a specific
         provision of the code or is contrary to the fundamental
         norms which underlie the sentencing process.

Id. (quotation marks and citation omitted). In addition, Pennsylvania Rule

of Appellate Procedure 2119(f) requires that “[a]n appellant who challenges

the discretionary aspects of a sentence in a criminal matter shall set forth in

his brief a concise statement of the reasons relied upon for allowances of

appeal with respect to the discretionary aspects of a sentence.”         Pa.R.A.P.

2119(f); see also Booze, 936 A.2d at 1278.




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     Counsel’s Anders brief contains a statement of reasons for allowance

of appeal. Anders Brief at 10. In Commonwealth v. Lilley, 978 A.2d 995

(Pa. Super. 2009), this court opined:

              The Anders brief challenges discretionary aspects of
          [the a]ppellant’s sentence. [The a]ppellant was required
          to “set forth in his brief a concise statement of the reasons
          relied upon for allowance of appeal with respect to the
          discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

              The concise statement must specify where the
              sentence falls in relation to the sentencing guidelines
              and what particular provision of the code it violates.
              Additionally, the statement must specify what
              fundamental norm the sentence violates and the
              manner in which it violates that norm.          If the
              statement meets these requirements, we can decide
              whether a substantial question exists.

          Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.
          Super. 2004) (internal quotations and citations omitted).
          [The a]ppellant’s Pa.R.A.P. 2119(f) statement fails to cite
          what particular provision of the code or what specific
          fundamental norm [the a]ppellant’s sentence allegedly
          violates.

             Nevertheless, in light of Counsel’s petition to withdraw,
          we    address   [the    a]ppellant’s   contention.      See
          Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.
          Super. 2001) (concluding that Anders requires review of
          issues otherwise waived on appeal).

Id. at 998.

     In the instant case, Appellant’s Rule 2119(f) statement fails to cite the

provision or the code or fundamental norm the sentence allegedly violates.

See id.    We will review the issue nonetheless.       See id.   This Court has

stated:



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         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 appellant must establish,
         by reference to the record, that the sentencing court
         ignored or misapplied the law, exercised its judgment for
         reasons of partiality, prejudice, bias or ill will, or arrived at
         a manifestly unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted).

      In making a reasonableness determination, a court should consider

four factors:

         (1) The nature and circumstances of the offense and the
         history and characteristics of the defendant.

         (2) The opportunity of the sentencing court to observe the
         defendant, including any presentence investigation.

         (3) The findings upon which the sentence was based.

         (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d)(1)-(4).

         [W]hile a sentence may be found to be unreasonable after
         review of Section 9781(d)’s four statutory factors, in
         addition a sentence may also be unreasonable if the
         appellate court finds that the sentence was imposed
         without express or implicit consideration by the sentencing
         court of the general standards applicable to sentencing
         found in Section 9721, i.e., the protection of the public;
         the gravity of the offense in relation to the impact on the
         victim and the community; and the rehabilitative needs of
         the defendant. 42 Pa.C.S. § 9721(b). Moreover, even
         though the unreasonableness inquiry lacks precise
         boundaries, we are confident that rejection of a sentencing
         court’s imposition of sentence on unreasonableness
         grounds would occur infrequently, whether the sentence is


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        above or below the guideline ranges, especially when the
        unreasonableness inquiry is conducted using the proper
        standard of review.

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).

     In Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011), this

Court held:

        [W]here the sentencing court imposed a standard-range
        sentence with the benefit of a pre-sentence report [“PSI”],
        we will not consider the sentence excessive. In those
        circumstances, we can assume the sentencing court was
        aware of relevant information regarding the defendant’s
        character and weighed those considerations along with
        mitigating statutory factors.

Id. at 298 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

1988)) (quotation marks omitted); see also Commonwealth v. Moury,

992 A.2d 162, 171 (Pa. Super. 2010) (stating “where a sentence is within

the standard range of the guidelines, Pennsylvania law views the sentence

as appropriate under the Sentencing Code”).

     At the guilty plea hearing, Appellant pled guilty to the following:

        [The Commonwealth:] First on 4303 of 2015, in March of
        2015, a forensic interview was conducted on a minor child
        with the initials E.A., her date of birth is May 11th, 2006.
        At that time it was determined that between January of
        2011 and January of 2012, her sister’s boyfriend,
        [Appellant], had forced her to have sexual contact with
        him on multiple occasions.

            On 865 of 2016, on November 17th of 2015, a forensic
        interview was conducted on . . . a minor female [sic]
        initials A.Z., date of birth October 10th, 2000, and it was
        determined that between June and July of . . . 2014,
        [Appellant] had exposed himself to the minor child and had



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        rubbed her back and tried to initiate sexual intercourse
        with her.

           On 866 of 2016, on November 23rd, of 2015, an
        interview was conducted at The Child Advocacy Center
        with a minor female with the initials A.N., date of birth
        2/13/2001.     A.N. is intellectually delayed, and it was
        determined     at   that   time    that   [Appellant] had
        inappropriately forced her to touch his genitals and had
        touched her genitals between June of 201[5] and August
        of 201[5].

           Finally, on 867 of 2016, on November 17th of 2015,
        F.N., a minor female with the date of birth of October 13,
        1999, who is the sister of A.N., did inform The Child
        Advocacy Center that between December of 2013 and
        January of 2014, [Appellant] had used his fingers to
        digitally penetrate her without her consent and she was
        under 16 at the time.

        The Court: did you hear those facts, sir, on each of those
        cases?

        [Appellant:] Yes, ma’am.

        The Court: Are you pleading guilty to those facts?

        [Appellant:] Yes, ma’am.

N.T. Guilty Plea Hr’g, 10/11/16, at 10-12.

     Instantly, the trial court opined:

            In the case at bar, the record clearly illustrates that the
        trial court had benefit of a PSI, while also taking into
        consideration the age of the victims, the fact that the
        crimes range from aggravated indecent assault to indecent
        exposure, the randomness of the sexual assaults, and the
        impact that it has had on every victim involved. The
        record also clearly illustrates that the trial court sentenced
        [Appellant] within the standard range of the guidelines.

                                 *     *      *



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           The court reviewed the transcripts, relevant law, oral
           colloquies, the PSI, th[e] facts that formed the basis of the
           guilty plea, and sentenced [Appellant] within statutory
           guidelines.    Here the Sentencing Court clearly and
           expressly complied with the requirements of 42 Pa.C.S. §
           9721(b) by imposing a sentence [“]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 [Appellant.]”
           Id.

Trial Ct. Op. at 4, 7.

      We discern no abuse of discretion in the trial court’s conclusions. See

Sheller, 961 A.2d at 190.        The court considered the factors in Section

9721(b). See Walls, 926 A.2d at 964. The court imposed a standard-range

sentence with the benefit of a PSI.         Therefore, Appellant’s sentence of

seventy-eight to one hundred fifty-six months’ incarceration, followed by two

years’ probation, was not manifestly excessive.        See Corley, 31 A.3d at

298; Moury, 992 A.2d at 171.

      A review of the record reveals no other meritorious issue that could

provide relief.

      Judgment of sentence affirmed.            Counsel’s petition to withdraw

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2017




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