J-S77016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
HASSAN ANDREW WINIAVSKI                        :
                                               :
                       Appellant               :   No. 581 MDA 2017

             Appeal from the Judgment of Sentence January 19, 2017
      In the Court of Common Pleas of Bradford County Criminal Division at
                        No(s): CP-08-CR-0000288-2016


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                           FILED DECEMBER 13, 2017

        Hassan Andrew Winiavski appeals from the judgment of sentence,

entered in the Court of Common Pleas of Bradford County, following his

conviction of involuntary deviate sexual intercourse (“IDSI”) with a child.1

Winiavski’s counsel seeks to withdraw pursuant to Anders v. California, 368

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).     Upon review, we grant counsel’s motion to withdraw and affirm

Winiavski’s judgment of sentence.

        Winiavski was charged with three counts of IDSI, and two counts of

corruption of minors.2       He entered a guilty plea on September 26, 2016, to


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1   18 Pa.C.S. § 3123(b).

2   18 Pa.C.S. § 6301(a)(1)(i), (ii).


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* Former Justice specially assigned to the Superior Court.
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one count of IDSI with a child, a felony of the first degree.         The court

sentenced Winiavski to 8 to 20 years’ imprisonment.3 On appeal, Winiavski

challenges the discretionary aspects of his sentence, claiming it was excessive

in light of his circumstances, and did not consider his rehabilitative needs.

       Winiavski’s counsel, John E. Bender, Esq., has filed a petition to

withdraw pursuant to the requirements set forth in Anders and Santiago.

Our Supreme Court in Santiago 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; and (3) state counsel’s reasons for
       concluding the appeal is frivolous.

Santiago, 978 A.2d at 361.             Once counsel has satisfied the procedural

requirements of Santiago, this Court engages in an independent evaluation

of the record to determine if the claims on appeal are wholly frivolous.

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).

       Here, counsel’s brief satisfies the necessary procedural requirements.

The brief provides “a summary of the procedural history and facts, with

citations to the record[,]” and raises the issue he believes arguably supports

an appeal. Santiago, 978 A.2d at 361; Brief of Appellant, at 6-14. The brief

further provides a review of the record. Santiago, 987 A.2d at 360; Brief of

Appellant, at 11-13. Counsel’s brief also states his conclusion that the claim
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3 The sentence imposed was at the lower end of the standard sentencing
guideline range. N.T. Sentencing, supra.

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is frivolous and provides the reasoning for this conclusion. Santiago, 978

A.2d at 360; Brief of Appellant, at 13-14. Lastly, counsel notified Winiavski

of his request to withdraw and provided him with a copy of the brief and a

letter explaining his right to retain new counsel or proceed pro se as to any

issues he believes might have merit.4 See Petition to Withdraw, 9/25/17;

Counsel’s Letter to Winiavski, 9/25/17. Counsel having satisfied the

procedural requirements for withdrawal, we must now examine Winiavski’s

claim to determine if the claim is frivolous. Anders, 386 U.S. at 744; Rojas,

874 A.2d at 639.

        Winiavski challenges the discretionary aspects of his sentence.    A

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal. See Commonwealth v. Coulverson, 34

A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P. 2119(f). This Court

conducts a four-part analysis to determine:

        (1) whether Appellant has timely filed a 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 appealed from is not
        appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).




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4   Winiavski has not filed a pro se response.

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      The court sentenced Winiavski on January 19, 2017. He filed a timely

post-sentence motion on January 24, 2017, wherein he preserved the

sentencing issue, and his appellate brief contains a Rule 2119(f) statement.

See Appellant’s Brief, at 8.       An appeal of the discretionary aspects of a

sentence will only be granted when there is a substantial question that the

sentence imposed was not appropriate under the Sentencing Code. 42 Pa.C.S.

§ 9781.

      Historically, this Court has found a substantial question exists for

purposes of section 9781 when the Rule 2119(f) statement reveals “a plausible

argument that procedures followed by the sentencing court were either

inconsistent with a specific provision of the Sentencing Code or contrary to

the    fundamental         norms    underlying   the    sentencing     process.”

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en banc)

(citations omitted). Here, Winiavski’s Rule 2119(f) statement provides:

      Appellant challenges the discretionary aspect of [his sentence]
      with regards to the length of sentence imposed relative to
      Appellant’s lack of prior criminal history. Appellant also challenges
      the sentence on the grounds that it was excessive and did not take
      into account Appellant’s treatment and rehabilitative needs.

Appellant’s Brief, at 8.

      Winiavski has failed to raise a substantial question for our review.

“[T]his Court has held on numerous occasions that 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.



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2013).     Additionally, the sentencing court had before it a presentence

investigation report.       See N.T. Sentencing, 1/19/17, at 2.               See also

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“Where pre-

sentence reports exist, we . . . presume that the sentencing judge was aware

of relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.”). Furthermore, the

remainder of Winiavski’s Rule 2119(f) statement is essentially a bald claim of

excessiveness.      This,   too,   fails   to   establish   a   substantial   question.

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006) (citing

Commonwealth v. Mouzon, 812 A.2d 626, 627 (Pa. 2002) (“Appellant must

support his assertions by articulating the way in which the court's actions

violated the sentencing code”)). Accordingly, on this ground, too, Winiavski’s

claim does not warrant review. Id.5

       We agree with counsel’s conclusions that this claim is frivolous.

Winiavski has not presented a substantial question, and review of the merits

of his challenge to the discretionary aspects of his sentence is unwarranted.

We, therefore, affirm the judgment of sentence and grant counsel’s request

to withdraw.

       Judgment of sentence affirmed. Motion to withdraw granted.


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5 Even were we to reach the merits, this sentencing claim would fail. The
sentencing transcript clearly indicates the court’s considered review of all
relevant sentencing factors, specifically including counseling and treatment.
See N.T. Sentencing, supra at 9.

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     BENDER, P.J.E., joins the memorandum.

     STEVENS, P.J.E., concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2017




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