J-S46034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EDWIN ALAN LARAMY                          :
                                               :
                      Appellant                :   No. 150 MDA 2017

           Appeal from the Judgment of Sentence December 22, 2016
                In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000143-2010,
                            CP-01-CR-0000146-2010


BEFORE:        BOWES, OLSON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                              FILED JULY 19, 2017

        Appellant, Edwin Alan Laramy, appeals from the judgment of sentence

entered by the Court of Common Pleas of Adams County following a

revocation of intermediate punishment sentences. Appellant contends that

the sentencing court abused its discretion by failing to consider mitigating

evidence presented by Appellant.           Also, counsel for Appellant has filed an

Application to Withdraw from representation and a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009) (“the Anders brief”). We grant counsel’s application to

withdraw and affirm Appellant’s judgment of sentence.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      The trial court aptly summarizes the factual and procedural histories of

Appellant’s case as follows:

      In CP-01-CR-143-2010, Defendant [hereinafter Appellant] was
      originally charged by criminal complaint dated January 13, 2010,
      with two counts of criminal attempt to commit indecent assault
      of a complainant less than thirteen years of age.[] The charges
      stem from an incident occurring on January 6, 2009 where
      Appellant was present in a residence in Cumberland Township,
      Adams County, Pennsylvania. Another adult in the residence
      observed Appellant in the bedroom of a girl under the age of
      thirteen years. Appellant was straddling the juvenile on his
      knees, with his penis in his hand, masturbating near her face. It
      appeared the juvenile female was sleeping.

      In CP-01-CR-146-2010, Appellant was originally charged by
      criminal complaint dated January 13, 2010, with one count of
      aggravated indecent assault of a complainant less than thirteen
      years of age, indecent assault of a complainant less than
      thirteen years of age, and corruption of minors.[] The female
      was less than thirteen years of age during the years 2002 and
      2006. Appellant digitally penetrated the vagina of the juvenile
      female, performed oral sex on the juvenile female, and exposed
      his penis to her.

      On July 16, 2010, in accordance with 50 P.S. § 7403, Appellant
      filed a “Motion for Hearing to Determine Defendant’s
      Competency.” Therein, Appellant alleged he fell from a twelve
      foot ladder on November 17, 2009, received a closed head
      injury, and had been diagnosed and treated for amnesia. An
      evidentiary hearing in this matter was held on August 15, 2011,
      before the Honorable Judge Michael A. George.               The
      Commonwealth presented testimony from psychiatrist Dr. Bruce
      Wright, and Appellant presented testimony from psychiatrist Dr.
      John Hume. On August 31, 2011, Judge George entered an
      Order and Opinion finding Appellant competent to stand trial for
      the charges pending against him. In this Opinion, Judge George
      stated:

            As mentioned, Laramy [hereinafter Appellant] claims
            he cannot meaningfully assist his defense because
            he suffered a head injury resulting in loss of his

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           memory of the relevant time period. However, the
           Commonwealth suggests Appellant is fabricating his
           memory loss in a self-serving attempt to avoid
           prosecution. In resolving this conflict, the Court
           finds the testimony of Dr. Bruce Wright credible. As
           Dr. Wright correctly notes, information provided by
           Appellant to various medical personnel in connection
           with his evaluation and treatment establishes a
           pattern of inconsistency indicative of malingering.
           For instance, while Appellant alleged to one physician
           that he had no memory of his relationship with his
           ex-wife and children, he advised another physician
           that his ex-wife was using the children to retaliate
           against him because “she didn’t want me to have
           anybody else, so when I moved out she couldn’t
           control me and my money to give her things.”
           Importantly, in discussing the criminal charges
           against him, Appellant admitted “I’m positive this
           didn’t happen. This is all made up. It’s out of
           revenge.” This statement is quite different than a
           claim that one does not remember the incident and,
           conversely, whether or not it occurred. Rather, it is
           an affirmative indication by Appellant that he has a
           specific memory of the time period at issue.

     Trial Cr. Op., 8/31/11, at 2-3.

     Judge George also stated “I find as a matter of fact that
     Appellant’s memory is not impaired to the extent it would
     hamper his ability to assist in his defense. Appellant’s self-
     serving subjective claims to the contrary are not persuasive.”
     Id. at 3-4.

     On October 3, 2011, Appellant appeared before Judge Thomas R.
     Campbell     with   counsel.     In    CP-01-CR-143-2010    the
     Commonwealth amended the Information to regrade count 1 as
     a felony of the third degree. Thereafter, Appellant entered a
     plea of nolo contendere to count 1, criminal attempt to commit
     indecent assault in violation of 18 Pa.C.S.A. § 901(a) and 18
     Pa.C.S.A. § 3126(a)(7).           In CP-01-CR-146-2010 the
     Commonwealth amended the Information to regrade count 3,
     criminal attempt to commit indecent assault, as a felony of the
     third degree.     Thereafter, Appellant entered a plea of nolo
     contendere to count 3, criminal attempt to commit indecent

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     assault in violation of 18 Pa.C.S.A. § 901 and 18 Pa.C.S.A. §
     3126(a)(7).     Appellant appeared with counsel before Judge
     Campbell on January 19, 2012 for sentencing, and in both cases,
     pursuant to agreement, Appellant was sentenced to seven years
     in the intermediate Punishment Program with eleven months in
     restrictive intermediate punishment. The sentences in each of
     these cases ran concurrent with each other.

     On August 20, 2013, a Motion for Revocation was filed seeking
     to revoke Appellant’s intermediate punishment sentence in both
     of the above-captioned cases. The motion was based upon
     allegations that Appellant had violated prison and house arrest
     rules by moving to an unauthorized location, by appearing in the
     vicinity of a night club which serves alcohol, by being evicted
     from his residence, and by not providing Probation with another
     acceptable address that could be used for house arrest
     supervision.

     On September 24, 2013, Appellant appeared with counsel at the
     intermediate punishment revocation hearing and acknowledged
     violating the conditions of his intermediate punishment. In both
     cases Appellant was resentenced to 7 years of intermediate
     punishment with 363 days in restrictive intermediate
     punishment.     As in his previous sentence, both cases ran
     concurrent with each other.

     On September 15, 2016, the Commonwealth once again moved
     to revoke Appellant’s intermediate punishment sentences. The
     basis for the revocation was that Appellant was unsuccessfully
     discharged from sex offender counseling at Commonwealth
     Clinical on August 26, 2016.

     On October 27, 2016, Appellant appeared with counsel at the
     intermediate punishment revocation hearing before th[e] court
     and acknowledged violating the conditions of his sentence of
     intermediate punishment. Th[e] court directed a presentence
     investigation be completed, which was to include any sexual
     offender treatment which Appellant was directed to complete
     and the results of that treatment.

     Appellant appeared with counsel before th[e] court for
     sentencing on December 22, 2016. Th[e] court had the benefit
     of a presentence investigation which was completed on
     November 28, 2016.     The presentence investigation report

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     outlined Appellant’s prior criminal history, including the above-
     captioned criminal convictions for two counts of indecent assault
     involving two separate juvenile victims and one count of
     indecent assault from 2001, also involving a juvenile victim. The
     court also received a report from psychotherapist Ryan C.
     Owens, a certified sexual offender treatment specialist, who was
     responsible for Appellant’s sexual offender counseling.
     Information provided from Commonwealth Clinical Group
     advised that between January 1, 2016 and May 10, 2016,
     Appellant was absent from group therapy more than five times
     without an excuse. Appellant was also absent from individual
     therapy on August 23, 2016 and group therapy on August 24,
     2016. Psychotherapist Owens stated “During the course of
     treatment with this agency, Appellant oscillated between stating
     he didn’t remember committing his prior sexual offenses to
     disclosing he didn’t commit the offenses.”         Psychotherapist
     Owens concluded “due to the aforementioned issues, Appellant is
     not amenable to community-based, outpatient sexual offender
     treatment at the current time and a higher level of care within a
     more secure environment is recommended.”

     In both of the above captioned cases th[e] court sentenced
     Appellant to no less than 18 months nor more than 84 months in
     confinement at a state correctional institution with custody credit
     of 337 days to run concurrent with each other. In imposing
     sentence, th[e] court noted it had reviewed the presentence
     investigation, the attachments to the presentence investigation
     concerning Appellant’s sexual offender treatment, a letter from
     Appellant’s wife, entertained the comments of counsel and
     reviewed the entire file in this matter, including Judge George’s
     2011 Opinion regarding Appellant’s competency. Th[e] court
     further noted that Appellant’s sentences were based on
     Appellant’s convictions for two separate cases of child sexual
     assault, a prior conviction for child sexual assault, Appellant’s
     failure to successfully complete sexual offender treatment, and
     the fact that this was a second revocation in both cases. Finding
     that local efforts had been exhausted, Appellant was sentenced
     to the custody of state authorities.

     On January 19, 2017, Appellant filed Notice of Appeal to the
     Superior Court of Pennsylvania from the judgment of sentence
     dated December 22, 2016 on both of the above-captioned cases.
     In Appellant’s Statement of Errors Complained of on Appeal,
     Appellant averred “the court abused its discretion by not

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       appropriately taking into consideration Appellant’s traumatic
       brain injury. Because of the brain injury Appellant formerly pled
       nolo contendere to the original criminal charges yet th[e] court
       admonished Appellant for his inability to admit the crimes in
       counseling, which contributed to his termination from
       counseling.” In essence, the sole issue on appeal is that the
       court abused its discretion by failing to consider mitigat[ing]
       evidence in sentencing Appellant to a state correctional
       institution.

Trial Court Opinion, 3/13/17, at 1-6.

       Because counsel has filed a petition to withdraw pursuant to Anders

and its Pennsylvania counterpart, Santiago,1 we must address counsel's

petition   before    reviewing      the   merits   of   Allen's   underlying   claims.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007).                      We

first address whether counsel's petition to withdraw satisfies the procedural

requirements of Anders. To be permitted to withdraw, counsel must:

       1) petition the court for leave to withdraw stating that, after
       making a conscientious examination of the record, counsel has
       determined that the appeal would be frivolous; 2) furnish a copy
       of the brief to the defendant; and 3) advise the defendant that
____________________________________________


1
   Instantly, counsel did not file a separate petition with this Court to
withdraw his representation. The Anders brief, however, contains what
appears to be a copy of the petition counsel intended to file, as it bears the
caption to the present appeal, the title “Petition to Withdraw as Counsel,”
averments by counsel that he satisfied all Anders/Santiago requirements,
a specific request to withdraw, and counsel’s signature.” See Anders Brief
at 17. Thus, we can treat the request to withdraw as properly before this
Court. See Commonwealth v. Fischetti, 669 A.2d 399 (Pa.Super. 1995)
(explaining more desirable practice is for counsel to submit separate
withdrawal petition to Superior Court; nevertheless, withdrawal request
included in Anders brief would suffice, where counsel did not file separate
petition).




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      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc ).

      Here,   appellate   counsel   has    stated     that   after    a      conscientious

examination of the entire record, he “found no merit in any actual or

potential issues and is hereby certifying that the appeal is frivolous.” App. to

Withdraw, 4/28/17, at 1. Appellate counsel furnished a copy of the Anders

brief to Appellant, as well as a letter advising him:

      You have the right to retain new counsel, to proceed on your
      own, that is, pro se, and you have the right to raise any
      additional points with the Superior Court that you deem . . .
      worthy of the Court’s attention. If you fail to exercise any of
      these options, the Superior Court could review your appeal
      based on what I have filed and release me from representing
      you any further. If you choose not to exercise the right to raise
      additional points with the Superior Court, you will be bound by
      the Superior Court’s decision and the brief which I have filed on
      your behalf. If you have any questions regarding this letter or
      what I have done on your behalf, please do not hesitate to
      contact me at the Public Defender’s Office.”

Ltr. to Appellant, 4/28/17.

      We conclude that counsel's petition to withdraw has complied with the

procedural dictates of Anders.

      We   next   address     whether     counsel's    Anders        brief    meets   the

requirements established by the Pennsylvania Supreme Court in Santiago.

The brief must:

      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that

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      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.

      Here, appellate counsel has provided a summary of the procedural

history and the facts with appropriate citations to the record. Anders brief

at 7-8. Counsel's brief states that he conducted a thorough review of the

record and determined that any appeal would be frivolous, and set forth his

reasons for that conclusion.    Id. at 9.     Accordingly, appellate counsel has

substantially complied with the requirements of Anders and Santiago.

      Appellant has not filed a pro se brief or a counseled brief with new,

privately-retained counsel.    We, therefore, review the issue raised in the

Anders brief to determine if the appeal is frivolous.

      Appellant raises the following issue:

      Whether the court abused its discretion in sentencing Defendant
      to no less than 18 months, nor more than 84 months, to be
      served in a State Correctional Institution, to wit:

         Appellant avers the court abused its discretion by not
         appropriately taking into consideration Defendant’s
         traumatic brain injury.     Because of the brain injury
         Defendant formerly pled Nolo Contendere to the original
         criminal charges, yet th[e] court admonished Defendant
         for his inability to admit to the crimes in counseling,
         which contributed to his termination from counseling.

Anders Brief at 6. Our standard of review when considering discretionary

aspects of sentencing claims is as follows:



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      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. 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. We
      must accord the sentencing court's decision great weight
      because it was in the best position to review the defendant's
      character, defiance or indifference, and the overall effect and
      nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11–12 (Pa.Super. 2007) (internal

quotations and citations omitted).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.”   Commonwealth v. McAfee, 849 A.2d 270, 274

(Pa.Super. 2004).   “Two requirements must be met before we will review

this challenge on its merits.” Id. “First, an appellant must set forth in his

brief a concise statement of the reasons relied upon for allowance of appeal

with respect to the discretionary aspects of a sentence.” Id. “Second, the

appellant must show that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” Id. A substantial

question exists when, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa.Super. 2005).            Importantly, “[i]ssues


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challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.” Commonwealth v. Shugars, 895 A .2d

1270, 1273–74 (Pa.Super. 2006) (citation and quotations omitted).

      We conclude that Appellant has waived his discretionary aspects of

sentence claim.    Our review of the certified record reveals that Appellant

never filed a post-sentence motion challenging the discretionary aspects of

his sentence.     Additionally, the transcript of the sentencing proceedings

reveals that Appellant did not challenge the discretionary aspects of his

sentence during sentencing. See N.T., 12/22/16, at 14-15. Thus, Appellant

waived his discretionary aspects of sentence claim. See Shugars, 895 A.2d

at 1273–74. Therefore, we deem frivolous the sole issue Appellant raises on

appeal.

      We have conducted our own independent review and conclude the

appeal is wholly frivolous. Accordingly, we affirm judgment of sentence and

grant appellate counsel’s petition to withdraw.

      Judgment of sentence is AFFIRMED. Petition to withdraw is GRANTED.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/19/2017


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