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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
MARK ARRINGTON,                          :         No. 809 WDA 2016
                                         :
                         Appellant       :


             Appeal from the Judgment of Sentence, April 20, 2016,
                 in the Court of Common Pleas of Erie County
               Criminal Division at No. CP-25-CR-0002157-2015


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 17, 2017

        Mark Arrington appeals from the April 20, 2016 judgment of sentence

after he pled1 guilty to one count of interference with custody of children and

one count of indecent assault.2 The trial court sentenced him to a term of

16 to 84 months’ imprisonment for interference with custody of children and

to a concurrent term of 16 to 60 months’ imprisonment for indecent assault.

Emily M. Merski, assistant public defender for Erie County, has filed a




1
 In exchange for his plea, the Commonwealth dropped charges of indecent
exposure and corruption of minors, 18 Pa.C.S.A. §§ 3127(a) and
6301(a)(1)(i), respectively.
2
    18 Pa.C.S.A. §§ 2904(a) and 3126(a)(7), respectively.
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petition to withdraw, alleging that the appeal is frivolous, accompanied by an

Anders brief.3

      The record reflects that on May 1, 2015, appellant picked up an

eight-year-old girl at a park and gave her a ride in his automobile without

her parent’s knowledge or permission. At some point while the child was in

his car, he kissed her on the lips. (Notes of testimony, 1/6/16 at 13.)

      On April 20, 2016, the trial court imposed the sentence on appellant.

Appellant then filed a motion for reconsideration/modification of sentence

which the trial court denied on May 5, 2016.

      Appellant contends that his sentence was “manifestly excessive,

clearly unreasonable and inconsistent with the objectives of the Sentencing

Code.” (Appellant’s brief at 3.)

      On November 16, 2016, Attorney Merski filed in this court a petition to

withdraw as counsel and an Anders brief, wherein Attorney Merski states

that there are no non-frivolous issues preserved for our review.

            A request by appointed counsel to withdraw pursuant
            to Anders and Santiago gives rise to certain
            requirements and obligations, for both appointed
            counsel and this Court.        Commonwealth v.
            Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
            2015).

                  These requirements and the significant
                  protection they provide to an Anders
                  appellant arise because a criminal
                  defendant has a constitutional right to a

3
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).


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               direct appeal and to counsel on that
               appeal.   Commonwealth v. Woods,
               939 A.2d 896, 898 (Pa.Super. 2007).
               This Court has 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 additional
                    points worthy of the Court’s
                    attention.

               Woods, 939     A.2d   at   898   (citations
               omitted).

               There are also requirements as to the
               precise content of an Anders brief:

                    The    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;


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                       (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.

           Id. at 1248. If this Court determines that appointed
           counsel has met these obligations, it is then our
           responsibility “to make a full examination of the
           proceedings and make an independent judgment to
           decide whether the appeal is in fact wholly frivolous.”
           Id. at 1248. In so doing, we review not only the
           issues identified by appointed counsel in the Anders
           brief, but examine all of the proceedings to “make
           certain that appointed counsel has not overlooked
           the existence of potentially non-frivolous issues.”
           Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Merski’s application to withdraw, supporting

documentation, and Anders brief reveals that she has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel,

proceed pro se, and/or raise any additional points that he deems worthy of

this court’s attention, and attached to the Anders petition a copy of the



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letter sent to appellant as required under Commonwealth v. Millisock,

873 A.2d 748, 751 (Pa.Super. 2005).       See Commonwealth v. Daniels,

999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are

quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”). As Attorney Merski has

complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.

     Once   counsel   has   met   her   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 355 n.5. Thus,

we now turn to the merits of appellant’s appeal.

     Appellant contends that his sentence was manifestly excessive, clearly

unreasonable, and inconsistent with the objectives of Section 9721(b) of the

Sentencing Code, 42 Pa.C.S.A. § 9721(b).       Further, appellant asserts that

the trial court abused its discretion when it sentenced appellant to such a

lengthy period of incarceration given the mitigating factors of the case.

Appellant argued before the trial court that he was not a sexually violent

predator, he had no similar prior offense, he had completed a drug and

alcohol program during his incarceration, he was 33 years old, he was

married, and his main problem was his alcoholism.



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      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) 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).

      Here, the record reveals that appellant filed a timely notice of appeal

and preserved his issues in his post-sentence motion.         (See “Motion for

Reconsideration/Modification    of   Sentence,”   4/29/16.)    Appellant   also

included a statement in his brief that comports with the requirements of

Pa.R.A.P. 2119(f).     (See Anders brief at 4-5.)       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


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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).

      Upon review, we find that appellant has failed to raise a substantial

question that his sentence is not appropriate under the Sentencing Code.

The trial court imposed a standard range sentence within the guidelines after

reviewing a pre-sentence investigation report. Where the sentencing court

issues a standard range sentence after reviewing a pre-sentence report, this

court will not find a sentence excessive.   Commonwealth v. Moury, 992

A.2d 162, 171 (Pa.Super. 2010). Further, this court has held that a claim of

an excessive sentence when a standard range sentence is imposed fails to

raise a substantial question.   Commonwealth v. Dodge, 77 A.3d 1263,

1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014). 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); see also Moury, 992 A.2d at

171 (stating that an “allegation that [the] sentencing court failed to consider

or did not adequately consider certain factors generally does not raise a

substantial question.” (citation and internal quotation marks 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



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discretionary aspects of sentencing claims.     After our own independent

review of the record, we discern no additional issues of arguable merit.

Accordingly, we grant counsel’s petition to withdraw and affirm the April 20,

2016 judgment of sentence.

     Petition to withdraw granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2017




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