J-S16023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MANUEL JESUS BORRERO                       :
                                               :
                       Appellant               :   No. 1721 MDA 2018

       Appeal from the Judgment of Sentence Entered September 27, 2018
      In the Court of Common Pleas of Bradford County Criminal Division at
                        No(s): CP-08-CR-0000801-2013

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                                FILED APRIL 09, 2019

        Manuel Jesus Borrero (Appellant) appeals from the judgment of

sentence imposed at Docket Number CP-08-CR-0000801-2013 (801-2013)

following the revocation of his probation and entry of his guilty plea at Docket

Number CP-08-CR-0000413-2018 (413-2018), to selling or furnishing liquor

or malt or brewed beverages to minors.1             Appellant’s appellate counsel

(Counsel) seeks to withdraw from representation pursuant to Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396 (1967) and Commonwealth v.

Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review, we affirm Appellant’s

judgment of sentence and grant Counsel’s petition to withdraw.

        The trial court summarized the relevant facts and procedural history as

follows:

____________________________________________


1   18 Pa.C.S.A. § 6310.1(a).
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          Appellant pled guilty [at Docket Number 801-2013] to
       Involuntary Manslaughter, 18 Pa.C.S.A. § 2504(a), M1, on July
       15, 201[4]. The underlying facts are that he was aware that his
       brakes in his vehicle were not working; he was unable to brake
       while proceeding down a hill and swerved into the opposite lane
       to avoid hitting [a] vehicle in front of him, but hitting another
       vehicle head on; and caused the death of the other driver. He
       was sentenced on September 4, 2014 to a split sentence of
       imprisonment of 3 months to 23 months to 29 days followed by
       24 months of probation. Appellant completed the incarceration
       portion of his sentence having been paroled and he was serving
       his probation sentence. A Petition to Revoke Probation was filed
       on May 3, 2018 alleging that Appellant was charged [at Docket
       Number 413-2018] with 26 counts of Sell/Furnish Liquor Etc. to
       Minors, M3, resulting from an incident that occurred on 3/25/18.
       Appellant waived Gagnon I and II hearing[s] on August 30,
       2018. A plea of guilty [at Docket Number 413-2018] was entered
       on that same date to the new offense of Selling/Furnishing
       Liquor/Malt/Brew Beverages to a Minor.            Appellant was
       resentenced on September 27, 2018 [at Docket Number 801-
       2013 following the revocation of his probation] to imprisonment
       of 11 months to 23 months 29 days.

Trial Court Opinion, 12/6/18, at 1.2

       On October 2, 2018, Appellant filed a post-sentence motion

challenging the discretionary aspects of his re-sentencing at Docket

Number 801-2013, in which he simply requested that the trial court

consider a shorter period of incarceration. On October 4, 2018, the trial

court denied Appellant’s post-sentence motion. This timely appeal from

Appellant’s judgment of sentence at Docket Number 801-2013 followed.




____________________________________________


2Also on September 27, 2018, the trial court sentenced Appellant at Docket
Number 413-2018 to 12 months of probation.

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      On October 19, 2018, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure. On October 23, 2018, Counsel

filed a statement of intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4).

On appeal, counsel filed an Anders brief and attached his petition to

withdraw.

      There are particular mandates that counsel seeking to withdraw

pursuant to Anders must follow.        These mandates and the significant

protection they provide to an Anders appellant arise because a criminal

defendant has a constitutional right to a direct appeal and to counsel on that

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

We have summarized these requirements 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 appellate 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).

Id. (citations omitted).


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      Additionally, there are requirements as to precisely what an Anders

brief must contain:

      [T]he Anders brief that accompanies court-appointed counsel’s
      petition to withdraw … 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. When faced with a purported Anders brief, we

may not review the merits of the underlying issues without first deciding

whether     counsel   has   properly   requested    permission    to   withdraw.

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation

omitted).    If counsel has met these 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.” Santiago, 978 A.2d at 354 n.5.

      Instantly, we conclude that Counsel has complied with the requirements

outlined above. Counsel has filed a petition with this Court stating that after

reviewing the record, he finds this appeal to be wholly frivolous. Petition for

Leave to Withdraw as Counsel, 1/22/19, ¶ 2. In conformance with Santiago,

Counsel’s brief includes summaries of the facts and procedural history of the

case and discusses the only issue he believes might arguably support

Appellant’s appeal. See Anders Brief at 7-16. Counsel’s brief sets forth his


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conclusion that the appeal is frivolous and includes citation to relevant

authority. See id. at 10-16. Finally, Counsel has attached to his petition to

withdraw the letter that he sent to Appellant, which enclosed Counsel’s

petition and Anders brief and advised Appellant of his right to proceed pro se

or with private counsel and to raise any additional issues that he deems worthy

of this Court’s consideration.

      The sole issue presented by Counsel in the Anders brief is whether

Appellant’s sentence following the revocation of his probation was “excessive

or too harsh” because he was not otherwise arrested while under supervision.

Anders Brief at 10-14.     This issue challenges the discretionary aspects of

Appellant’s sentence.

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.” Id. We conduct

this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
      raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

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plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)

(quotations and citations omitted).

       Although Appellant preserved his sentencing claim by filing a post-

sentence motion and timely notice of appeal, we conclude that Appellant’s

bald assertion that his sentence was excessive or too harsh does not present

a substantial question.3 See Commonwealth v. Fisher, 47 A.3d 155, 159

(Pa. Super. 2012) (“[A] bald assertion that a sentence is excessive does not

by itself raise a substantial question justifying this Court’s review of the merits

of the underlying claim.”).       Appellant’s claim does not challenge a specific

provision of the sentencing code nor does it cite any particular fundamental

norm underlying the sentencing process that Appellant believes has been

violated.    Appellant’s sentencing claim amounts to an unsubstantiated

assertion that his sentence was excessive, and is devoid of supporting legal

authority. Because Appellant does not present a substantial question for our

review, “we will not review his sentencing claim.” See id.




____________________________________________


3 Although the Anders brief does not include a separate Rule 2119(f)
statement, the lack of the statement is not an impediment to our review. See
Commonwealth v. Zeigler, 112 A.35 656, 661 (Pa. Super. 2015) (where
counsel has filed an Anders brief, this Court has reviewed discretionary
sentencing claims in the absence of a Pa.R.A.P. 2119(f) statement).

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      Additionally, after conducting our own independent review of the record,

we have determined that there are no issues of merit and agree with Counsel’s

assessment that Appellant’s direct appeal is frivolous. We thus find this appeal

to be wholly frivolous and permit Counsel to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/09/2019




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