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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

RANDY SCOTT STALLSMITH

                         Appellant                   No. 828 WDA 2016


           Appeal from the Judgment of Sentence May 17, 2016
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0000161-2016



BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 10, 2017

      Randy Scott Stallsmith appeals from the judgment of sentence of three

to six months incarceration following his guilty plea to one count of driving

under a suspended license, his twenty-second offense of that nature.

Counsel has filed a petition to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.3d 349 (Pa.

2009). We grant counsel’s petition and affirm.

      The record reveals the following.    On November 6, 2015, Appellant

was issued a citation for driving without a valid Pennsylvania registration,

driving without proof of financial responsibility, and driving with a suspended

license – habitual offender. On May 4, 2016, Appellant signed a statement

acknowledging his rights and indicating that he understood the potential
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sentence for the charges he faced, including thirty-days to six-months

incarceration for driving with a suspended license.    He entered an open

guilty plea to one count of driving with a suspended license, his twenty-

second offense.    The court conducted the mandated colloquy, accepted

Appellant’s plea, and nolle prossed the remaining charges.

     On May 17, 2016, the court held a sentencing hearing.            At that

hearing, the court reviewed Appellant’s extensive criminal history and heard

testimony in support of Appellant’s character and willingness to change. The

court emphasized that Appellant had twenty-one prior offenses for driving

with a suspended license. As a result, the court imposed a guideline range

sentence of three months to six months incarceration.          The court then

denied Appellant’s entreaty for work release.

     Appellant filed a timely motion for reconsideration requesting that the

court modify his sentence to permit work release.            The court denied

Appellant’s motion, and Appellant filed a timely notice of appeal.         In

response to the court’s order to file a Rule 1925(b) statement of errors

complained of on appeal, counsel noted her intent to seek to withdraw on

appeal pursuant to Anders, supra. Before we can proceed to the merits of

the issues raised herein, we first must address counsel’s request to

withdraw. In order to withdraw during direct appeal,

     First, counsel must petition the court for leave to withdraw and
     state that after making a conscientious examination of the
     record, she has determined that the appeal is frivolous; second,

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      she must file a brief referring to any issues in the record of
      arguable merit; and third, she must furnish a copy of the brief to
      the defendant and advise him of his right to retain new counsel
      or to himself raise any additional points he deems worth of the
      Superior Court’s attention.

Santiago, supra at 351.      In Santiago, the Court outlined the following

specific requirements for an Anders brief:

      [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 arguable 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.

Id. at 361. Once counsel has satisfied the above requirements:

      The court – not counsel – then proceeds, after a full
      examination of all the proceedings, to decide whether the case
      is wholly frivolous. If it so finds it may grant counsel’s request
      to withdraw and dismiss the appeal insofar as federal
      requirements are concerned, or proceed to a decision on the
      merits, if state law so requires. On the other hand, if it finds
      any of the legal points arguable on their merits (and therefore
      not frivolous) it must, prior to decision, afford the indigent the
      assistance of counsel to argue the appeal.

Id. at 354 (quoting Anders, supra at 744).

      In her petition to withdraw, counsel averred that she reviewed the

record and relevant case law and believed that were no non-frivolous issues

to be raised on appeal. Counsel also filed with this Court a brief raising one

issue she felt might arguably support the present appeal. Counsel notified



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Appellant of her request to withdraw and provided a copy of the brief and

petition to withdraw. Counsel advised Appellant that he had a right to retain

private counsel or proceed pro se to submit any additional arguments to this

Court.     Hence, counsel has complied with the procedural mandates of

Anders/Santiago.

         We turn now to counsel’s Anders brief. Counsel’s brief sets forth the

complete factual and procedural summary of Appellant’s case, with citation

to his plea hearing. Counsel included the mandated statement pursuant to

Pa.R.A.P. 2119(f) and presented one issue that she believes might arguably

support this appeal.     Counsel set forth that issue as follows:   “Was the

sentence in this case manifestly excessive and clearly unreasonable, and not

individualized as required by law?” Appellant’s brief at 1. After a review of

the relevant case law, counsel concluded this issue lacked merit.

      Appellant’s issue assails the discretionary aspects of his sentence. At

the outset, we are mindful of our standard of review:      “[s]entencing 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.”    Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super.

2014) (citation omitted). We observe that “the right to appellate review of

the discretionary aspects of a sentence is not absolute, and must be

considered as a petition for permission to appeal.” Id. In order to invoke

this Court’s jurisdiction:

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      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant’s brief
      has a fatal defect; and (4) whether there is a substantial
      question that the sentence appeal from is not appropriate under
      the Sentencing Code.

Id.

      Appellant contends that his sentence was manifestly excessive and

clearly unreasonable since the court did not grant him work release as a

condition of his sentence.   In addition, he maintains that he should have

received a lighter sentence since he took responsibility for his actions,

expressed remorse, and presented testimony supporting him.               Thus,

Appellant concludes that his sentencing was not appropriate under the

sentencing codes.

      As noted above, there is no absolute right to an appeal to the

discretionary aspects of a person’s sentence.      Rather, an “[a]ppeal is

permitted only after this Court determines that there is a substantial

question that the sentence was not appropriate under the sentencing code.”

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

omitted). Generally, whether an issue raises a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Swope, 123 A.3d

333, 338 (Pa.Super. 2015). Moreover,

      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

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      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

Id.

      In determining whether a substantial question exists as to the

excessiveness of a sentence, we do not examine the merits of whether the

sentence is excessive, but rather, “we look to whether the appellant has

forwarded a plausible argument that the sentence, when it is within the

guideline ranges, is clearly unreasonable.” Dodge, supra at 1260.

      Instantly, the trial court reviewed Appellant’s extensive criminal

history, and heard testimony from Appellant and from witnesses supporting

Appellant.    Upon hearing this testimony, including statements as to

Appellant’s remorse, the court curbed Appellant’s sentence for a conviction

unrelated to this matter. N.T. Sentencing, 5/17/16, at 20. With regard to

this conviction, the court emphasized that Appellant had twenty-one

previous citations for driving with a suspended license, and determined that

Appellant’s history provided no indication that his aberrant conduct would

cease.   As such, it sentenced Appellant to a standard range sentence of

three-months to sixth months incarceration for that offense and denied his

request for work release.    We find that Appellant has not advanced a

plausible argument that his sentence is clearly unreasonable, and hence, he

has not presented a substantial question for our review.




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     After an independent review of the record, we concur with counsel’s

assessment that this appeal is wholly frivolous and that there are no

preserved issues that could arguably support this appeal. Thus, we conclude

that counsel may withdraw.

     Petition of Tina M. Fryling, Esquire, to withdraw as counsel is granted.

Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2017




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