J-S44008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

VERNEL J. MCDONALD,

                            Appellant                    No. 3285 EDA 2016


      Appeal from the Judgment of Sentence Entered October 13, 2016
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0011816-2012


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED AUGUST 16, 2017

       Appellant, Vernel J. McDonald, appeals from the judgment of sentence

of an aggregate term of 7½ to 15 years’ incarceration, imposed after a jury

convicted him of voluntary manslaughter, carrying a firearm without a

license (hereinafter, “VUFA 6106”),1 carrying a firearm on a public street in

Philadelphia (hereinafter, “VUFA 6108”), and possessing an instrument of

crime (hereinafter, “PIC”).        On appeal, Appellant seeks to challenge the

discretionary aspects of his VUFA 6106 sentence. Additionally, his counsel,

Stephen T. O’Hanlon, Esq., seeks to withdraw his representation of Appellant

pursuant     to   Anders      v.    California,   386   U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                   After careful
____________________________________________


1
 We use VUFA 6106 to refer to the fact this offense is a violation of section
6106 of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6127.
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review, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.

      A detailed recitation of the facts underlying Appellant’s convictions is

unnecessary to our disposition of his appeal. We only note that on June 13,

2012, Appellant shot and killed Tyrell Brown during a botched drug deal.

Appellant was tried before a jury, and on July 2, 2014, he was convicted of

the above-stated offenses.   On September 16, 2014, the court sentenced

him to 5 to 10 years’ incarceration for his voluntary manslaughter

conviction, concurrent terms of 1 to 2 years’ imprisonment for each of his

PIC and VUFA 6108 convictions, and a consecutive term of 2½ to 5 years’

incarceration for his VUFA 6106 offense.    Therefore, Appellant’s aggregate

sentence was 7½ to 15 years’ incarceration.

      Appellant filed a timely notice of appeal, and after this Court affirmed

his September 16, 2014 judgment of sentence, our Supreme Court denied

his subsequent petition for allowance of appeal.    See Commonwealth v.

McDonald, 125 A.3d 457 (Pa. Super. 2015) (unpublished memorandum),

appeal denied, 129 A.3d 1242 (Pa. 2015).

      Appellant thereafter filed a petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and Attorney O’Hanlon was appointed

to represent him. In an amended petition filed on June 1, 2016, Attorney

O’Hanlon asserted that Appellant’s trial counsel was ineffective for not

objecting to the sentencing court’s incorrectly utilizing a deadly-weapon-

enhancement (DWE) sentencing guideline range with respect to Appellant’s

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conviction for VUFA 6106.       On October 13, 2016, the PCRA court vacated

Appellant’s judgment of sentence and resentenced him, that same day, to a

term of 5 to 10 years’ incarceration for voluntary manslaughter, a

concurrent term of 6 to 12 months’ for PIC, a concurrent term of 1 to 2

years’ incarceration for VUFA 6108, and a consecutive term of 2½ to 5

years’ incarceration for VUFA 6106. In other words, the court imposed the

same aggregate sentence of 7½ to 15 years’ incarceration.

      Appellant filed a timely post-sentence motion, which the court denied.

He then filed a timely notice of appeal. When the court directed Appellant to

file a Pa.R.A.P. 1925(b) statement, Attorney O’Hanlon submitted a Rule

1925(c)(4) statement of his intent to file an Anders/Santiago brief.       On

January 23, 2017, Attorney O’Hanlon filed with this Court a petition to

withdraw from representing Appellant. He also filed an Anders/Santiago

brief, asserting that the single sentencing issue Appellant seeks to raise on

appeal is frivolous, and that Appellant has no other non-frivolous issues that

counsel could present herein.

      When faced with a petition to withdraw and Anders/Santiago brief,

      [t]his Court must first pass upon counsel's petition to withdraw
      before reviewing the merits of the underlying issues presented
      by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
      287, 290 (Pa. Super. 2007) (en banc).

      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 Santiago. The brief 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. 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. Nischan, 928 A.2d 349,
     353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
     (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders/Santiago, this Court must then “conduct an independent review of

the record to discern if there are any additional, non-frivolous issues

overlooked by counsel.”    Commonwealth v. Flowers, 113 A.3d 1246,

1250 (Pa. Super. 2015) (citations and footnote omitted).

     In this case, Attorney O’Hanlon’s Anders/Santiago brief complies

with the above-stated requirements. Namely, he includes a summary of the

relevant factual and procedural history, he refers to portions of the record

that could arguably support Appellant’s sentencing claim, and he sets forth

his conclusion that Appellant’s appeal is frivolous.    He also explains his

reasons for reaching that determination, and supports his rationale with

citations to the record and pertinent legal authority. Attorney O’Hanlon also

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states in his petition to withdraw that he has supplied Appellant with a copy

of his Anders/Santiago brief, and he attached a letter directed to Appellant

in which he informs Appellant of the rights enumerated in Nischan.

Accordingly, counsel has complied with the technical requirements for

withdrawal.   We will now independently review the record to determine if

Appellant’s sentencing issue is frivolous, and to ascertain if there are any

other non-frivolous issues he could pursue on appeal.

     Appellant seeks to argue that the trial court abused its discretion by

resentencing him to the same term of incarceration for VUFA 6106 as the

court had originally imposed when utilizing the incorrect DWE guideline

ranges.   Appellant’s argument constitutes a challenge to the discretionary

aspects of his sentence.

     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. Commonwealth v.
     Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
     challenging the discretionary aspects of his sentence must
     invoke this Court's jurisdiction by satisfying a four-part test:

          We 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
          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).




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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

     Here, Attorney O’Hanlon preserved Appellant’s sentencing claim in a

post-sentence motion, and he filed a timely appeal on Appellant’s behalf.

However, counsel did not include a Rule 2119(f) statement in his

Anders/Santiago brief.       Nevertheless, this Court has overlooked the

omission of a Rule 2119(f) statement where counsel is seeking to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009); see also

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (“Where

counsel files an Anders brief, this Court has reviewed the matter even

absent a separate [Rule] 2119(f) statement.”).       Therefore, “we do not

consider counsel’s failure to submit a Rule 2119(f) statement as precluding

review of whether Appellant’s issue is frivolous.” Zeigler, 112 A.3d at 661.

     In assessing Appellant’s claim that the court erred in resentencing

him, we apply the following, well-settled standard of review:

        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. Rodda, 723 A.2d 212, 214 (Pa. Super.
     1999) (en banc) (quotations marks and citations omitted). See
     also Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
     (2007) (citation omitted) (“An abuse of discretion may not be
     found merely because an appellate court might have reached a

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      different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice bias or ill-will, or such
      a lack of support as to be clearly erroneous.”).

Commonwealth v. Coulverson, 34 A.3d 135, 143–44 (Pa. Super. 2011).

      After reviewing the record in this case, it is clear that Appellant cannot

demonstrate an abuse of discretion by the trial court in resentencing him to

the same term of incarceration for VUFA 6106 as the court had originally

imposed under the DWE sentencing guidelines. The offense gravity score for

VUFA 6106 is 9. See N.T. Resentencing, 10/13/16, at 6. Appellant’s prior

record score at the time of his resentencing hearing was 1. Id.      Therefore,

under the non-DWE Sentencing Guidelines, Appellant faced a standard

range, minimum sentence of 18 to 30 months’ incarceration for that offense.

Id.   He received a minimum sentence of 30 months’ incarceration, thus

constituting a standard range sentence.

      We recognize that at the resentencing hearing, Appellant stressed that

his original VUFA 6106 sentence was in the mitigated range of the DWE

sentencing guidelines. See id. at 7. Accordingly, Appellant argued that he

should again receive a mitigated range sentence under the non-DWE

sentencing guidelines, which would mean a minimum term of 6 to 12

months’ incarceration.   Id.   However, the court explained that it “was not

[the court’s] intent to sentence [Appellant] in the mitigated range” at the

original sentencing proceeding; instead, it was simply a coincidence that the

sentence the court felt was appropriate, i.e., 2½ to 5 years’ incarceration,

fell within the mitigated (rather than standard) range of the DWE guidelines.


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Id. at 9, 14. The court stated that it still believed a term of incarceration of

2½ to 5 years was appropriate for Appellant’s VUFA 6106 offense, despite

that that sentence fell within the standard range of the non-DWE

guidelines. Id. at 9.

      In regard to why this sentence was appropriate, the trial court referred

to the reasons it stated at Appellant’s initial sentencing hearing, including

that Appellant had made the conscious decision “to load [himself] with a

gun.” Id. at 8. At the original sentencing hearing, the court had elaborated

that, even if Appellant’s act of shooting the victim was “spur-of-the-

moment[,]” he had consciously decided to illegally carry a loaded gun on the

day of the shooting. N.T. Sentencing, 9/16/14, at 33. The court stressed

that Appellant’s decision to carry that gun, and his “foresight to bring

someone with [him] that also had a loaded gun[,]” had “put the chain of

events into action.” Id. at 33-34. The court also pointed out that Appellant

“at any point … could have made the decision to stop it before [he] got

there[,]” yet he chose not to.      Id. at 34.   For those reasons, the court

believed a consecutive term of 2½ to 5 years’ incarceration for Appellant’s

VUFA 6106 conviction was appropriate, and it maintained that belief at the

time of Appellant’s resentencing.

      We do not ascertain any unreasonableness in the court’s sentencing

decision. Clearly, at Appellant’s resentencing hearing, the court considered

the sentencing guidelines, and was cognizant of the fact that the term of

incarceration it was imposing was a standard, rather than mitigated, range

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sentence under the non-DWE guidelines.        The court was not bound to

impose a mitigated range term of incarceration simply because its original

sentence was within the mitigated range of the DWE guidelines.          See

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

imposing a sentence, the sentencing court is required to consider the

sentence ranges set forth in the Sentencing Guidelines, but it is not bound

by the Sentencing Guidelines.”) (citations omitted).

      Therefore, we agree with Attorney O’Hanlon that Appellant’s challenge

to his VUFA 6106 sentence is frivolous. Additionally, our independent review

of the record reveals no other non-frivolous issues that Appellant could

present herein. Consequently, we affirm his judgment of sentence and grant

counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2017




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