J-S22034-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                     Appellee              :
                                           :
                     v.                    :
                                           :
GERALD ANTHONY JOHNSON,                    :
                                           :
                      Appellant            :       No. 1728 WDA 2014

    Appeal from the Judgment of Sentence Entered September 11, 2014
               in the Court of Common Pleas of Erie County,
           Criminal Division, at No(s): CP-25-CR-0000744-2014

BEFORE:      PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED: June 3, 2015

      Gerald Anthony Johnson (Appellant) appeals from the judgment of

sentence which followed his conviction for aggravated assault. Also before

the Court is the petition of Appellant’s counsel to withdraw pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence

and grant the petition to withdraw.

      The background underlying this matter can be summarized as follows.

Appellant shot one victim once and another victim several times.        He was

charged with multiple crimes but pled guilty only to one count of aggravated

assault.   The trial court sentenced Appellant to nine to twenty years in

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

denied.    Appellant timely filed a notice of appeal.   The trial court directed


*Retired Senior Judge assigned to the Superior Court.
J-S22034-15

Appellant to comply with Pa.R.A.P. 1925(b).         In response, Appellant’s

counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4), stating that

counsel intended to withdraw his representation of Appellant. Counsel then

filed with this Court a petition to withdraw and an Anders brief.

      Before we consider the substance of this appeal, we must address

counsel’s compliance with Anders:

      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 any
      additional points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant's behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).   Our Supreme Court has expounded further upon the

requirements of Anders:




                                     -2-
J-S22034-15

      in 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; (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.

      Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

above requirements.1      “We, therefore, turn to the issue presented in

counsel’s Anders brief to make an independent judgment as to whether the

appeal is, in fact, wholly frivolous.”   Commonwealth v. Martuscelli, 54

A.3d 940, 947 (Pa. Super. 2012).

      Counsel contends that a challenge to the discretionary aspects of

Appellant’s sentence is the only issue that arguably supports this appeal.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’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

1
  Appellant has not filed a response raising any additional points for our
consideration.


                                     -3-
J-S22034-15

         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Appellant timely filed a notice of appeal. Appellant did not object to

his sentence at the sentencing hearing; however, he did seek a modification

of his sentence in his post-sentence motion.      Appellant claimed that his

sentence was harsh and excessive, essentially due to the mitigating factors

Appellant presented at his sentencing hearing. Thus, Appellant seemed to

believe his sentence was excessive due to the inadequate consideration of

mitigating factors.   While the Anders brief words Appellant’s challenge

somewhat differently than the issue raised in the post-sentence motion, we

conclude that Appellant has preserved his issue for appellate review.

      Because the Anders brief contains a concise statement of the reasons

relied upon for allowance of appeal, we are left to determine whether

Appellant’s issue raises a substantial question worthy of appellate review.

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          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 Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process. …




                                     -4-
J-S22034-15

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005)

(citations omitted).

       “[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.”   Disalvo, 70 A.3d at 903.     Given that Appellant

shot two people and received a standard range sentence for one count of

aggravated assault, we can discern no reason why Appellant’s claim of an

excessive sentence due to inadequate consideration of mitigating factors

raises a substantial question worthy of this Court’s consideration.

      For these reasons, we agree with counsel that this appeal is wholly

frivolous.   Accordingly, we affirm the 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: 6/3/2015




                                     -5-
