J-S64035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NATASHA RUIZ

                            Appellant                 No. 783 WDA 2014


              Appeal from the Judgment of Sentence April 8, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000692-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED OCTOBER 24, 2014

        Appellant, Natasha Ruiz, appeals from the judgment of sentence

entered in the Erie County Court of Common Pleas, following her jury trial

convictions for simple assault, recklessly endangering another person

(“REAP”), harassment, and criminal mischief.1           We affirm and grant

counsel’s petition to withdraw.

        The relevant facts and procedural history of this appeal are as follows.

Appellant engaged in a physical altercation with another woman on January

30, 2013.       During the fight, a one-year-old bystander suffered minor

injuries. On February 12, 2014, a jury convicted Appellant of simple assault,

REAP, harassment, and criminal mischief.
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1
    18 Pa.C.S.A. §§ 2701, 2705, 2709, 3304, respectively.
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      On April 8, 2014, the court sentenced Appellant to ten (10) days to

twenty-three (23) months’ imprisonment for the simple assault conviction.

The court gave Appellant credit for thirteen (13) days of time served and

granted immediate parole. The court also determined that the harassment

conviction merged with the simple assault conviction for sentencing. For the

REAP conviction, the court imposed a concurrent term of twelve (12)

months’ probation. For the criminal mischief conviction, the court ordered

Appellant to pay costs. Appellant did not file post-sentence motions.

      Appellant timely filed a notice of appeal on May 8, 2014. That same

day, counsel filed a statement of intent to file a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      As a preliminary matter, appellate counsel seeks to withdraw her

representation pursuant to Anders and Commonwealth v. Santiago, 602

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise her of her right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.         Substantial compliance

with these requirements is sufficient.     Commonwealth v. Wrecks, 934


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A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.”    Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[2] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that
          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed
          counsel’s petition to withdraw, counsel 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
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2
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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          (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. at 178-79, 978 A.2d at 361.

       Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a thorough review of the record and

concluded the appeal would be wholly frivolous.          Counsel also supplied

Appellant with a copy of the withdrawal petition, the brief, and a letter

explaining Appellant’s right to proceed pro se or with new privately retained

counsel to pursue any additional points Appellant deems worthy of this

Court’s attention. In her Anders brief, counsel provides a summary of the

facts and procedural history of the case.3       Counsel refers to facts in the

record that might arguably support the issue raised on appeal and offers

citations to relevant law. The brief also provides counsel’s conclusion that

the appeal is wholly frivolous. Thus, counsel has substantially complied with

the requirements of Anders and Santiago.

       As Appellant has filed neither a pro se brief nor a counseled brief with

new privately retained counsel, we review this appeal on the basis of the

issue raised in the Anders brief:


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3
 We note that counsel’s rendition of the procedural history is inaccurate.
Nevertheless, this deficiency does not hamper our ability to conduct
meaningful appellate review.



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         WHETHER APPELLANT’S SENTENCE IS MANIFESTLY
         EXCESSIVE,    CLEARLY     UNREASONABLE    AND
         INCONSISTENT   WITH   THE  OBJECTIVES  OF THE
         PENNSYLVANIA SENTENCING CODE?

(Anders Brief at 3).

      Appellant contends the sentencing court failed to consider mitigating

factors, including her genuine remorse and Appellant’s lack of a prior

criminal record. Appellant concedes her sentences fall within the standard

range of the sentencing guidelines. Nevertheless, Appellant insists the court

did not consider the factors set forth in 42 Pa.C.S.A. § 9721(b), including 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 Appellant’s rehabilitative

needs.   Appellant concludes the court abused its discretion by imposing a

manifestly excessive sentence. Appellant’s challenge is to the discretionary

aspects of her sentence.     See Commonwealth v. Lutes, 793 A.2d 949

(Pa.Super. 2002) (stating claim that sentence is manifestly excessive

challenges discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.    Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).      Prior to reaching the merits of a discretionary

sentencing issue:

         [W]e 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

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           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.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing.4            Commonwealth v. Mann, 820

A.2d 788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599

(2003).

       When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness       of    the     sentence     under   the   Sentencing   Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f).     “The requirement that an appellant separately set forth the

reasons relied upon for allowance of appeal ‘furthers the purpose evident in

the Sentencing Code as a whole of limiting any challenges to the trial court’s

evaluation of the multitude of factors impinging on the sentencing decision
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4
  Here, Appellant failed to raise her discretionary aspects claims at the
sentencing hearing or in post-sentence motions. Due to counsel’s petition to
withdraw, however, we proceed with our analysis of Appellant’s issue. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (explaining
Anders requires review of issues otherwise waived on appeal).



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to exceptional cases.’”   Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387

(Pa.Super. 1989) (en banc) (emphasis in original)).

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). 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.” Sierra, supra at 912-13 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).

      A claim that a sentence is manifestly excessive might raise a

substantial question if the appellant’s Rule 2119(f) statement sufficiently

articulates the manner in which the sentence imposed violates a specific

provision of the Sentencing Code or the norms underlying the sentencing

process.   Mouzon, supra at 435, 812 A.2d at 627.        Nevertheless, “[a]n

allegation that a sentencing court ‘failed to consider’ or ‘did not adequately

consider’ certain factors does not raise a substantial question that the

sentence was inappropriate.” Commonwealth v. Cruz-Centeno, 668 A.2d

536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195


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(1996) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super.

1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)).                 See also

Commonwealth v. Kane, 10 A.3d 327 (Pa.Super. 2010), appeal denied,

612 Pa. 689, 29 A.3d 796 (2011) (stating claim that sentencing court failed

to consider factors set forth in 42 Pa.C.S.A. 9721(b) does not raise

substantial question).

       Instantly, Appellant’s assertion that the court improperly weighed the

mitigating factors does not raise a substantial question.              See Cruz-

Centeno, supra. Here, the court had the benefit of a PSI report. (See N.T.

Sentencing Hearing, 4/8/14, at 9.)             Therefore, we can presume the court

considered the relevant sentencing factors.              See Commonwealth v.

Tirado, 870 A.2d 362, 366 n.6 (Pa.Super. 2005) (stating where sentencing

court had benefit of PSI, law presumes court was aware of and weighed

relevant information regarding defendant’s character and mitigating factors).

The court also imposed standard range sentences.5                Thus, Appellant’s

sentences are presumptively valid. See Cruz-Centeno, supra (explaining

that combination of PSI and standard range sentence, absent more, cannot
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5
  With a prior record score of zero (0) and an offense gravity score of four
(4), the standard range for the simple assault conviction was restorative
sanctions to three (3) months. Appellant’s sentence of 10 days to 23
months for simple assault was in the standard range. With a prior record
score of zero (0) and an offense gravity score of three (3), the standard
range for the REAP conviction was restorative sanctions to one (1) month.
Appellant’s sentence of 12 months’ probation (restorative sanctions) was
also in the standard range.



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be considered excessive or unreasonable).      Accordingly, we affirm the

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

     Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




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