J-S72034-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                   v.                    :
                                         :
CHRISTOPHER WALKER,                      :
                                         :
                 Appellant               :     No. 782 WDA 2014

       Appeal from the Judgment of Sentence Entered April 10, 2014
               in the Court of Common Pleas of Erie County,
           Criminal Division, at No(s): CP-25-CR-0003631-2013

BEFORE:    BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED JANUARY 13, 2015

     Christopher Walker (Appellant) appeals from the judgment of sentence

of 12 to 24 months of incarceration following his no contest pleas to simple

assault and disorderly conduct.    Also before us is counsel’s petition to

withdraw as counsel 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 trial court summarized the history of the case as follows.

            On February 2, 2014, Appellant appeared before th[e trial
     c]ourt and entered a no contest plea to Count 1, simple assault
     (misdemeanor of [the] second degree) and Count 2, disorderly
     conduct (misdemeanor of the third degree). These charges
     arose from an incident that took place on November 8, 2013 in
     Millcreek Township, Erie County, Pennsylvania. On that date,
     Appellant pushed the victim onto a bed, placed a pillow over her
     head, struck her, and then threw her onto the floor. To add
     insult to injury, he spit on her. The disorderly conduct involved


*Retired Senior Judge assigned to the Superior Court.
J-S72034-14


         his conduct vis-à-vis the police officers who responded to the
         incident.

               On April 10, 2014, Appellant was sentenced to a term of
         12 to 24 months’ incarceration on the simple assault charge and
         a concurrent 6 to 12 months’ incarceration on the disorderly
         conduct charge. These were standard range sentences.

               On May 8, 2014, Appellant filed a timely notice of appeal.
         On May 9, 2014, th[e trial c]ourt ordered Appellant to file a
         concise statement of [errors] complained of on appeal pursuant
         to Pa.R.A.P. 1925(b). Appellant timely complied on May 19,
         2014….

Trial Court Opinion, 6/18/2014, at 1-2 (some punctuation modified).

         Counsel filed with this court a petition to withdraw and an Anders

brief.    Thus, 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-



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      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 clarified portions of the Anders procedure:

      Accordingly, we hold that 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   satisfied   the   above

requirements.1      Therefore, we shall conduct an independent review of the

appeal to determine whether it is indeed wholly frivolous.

      The Anders brief states one issue that arguably supports this appeal:

“Whether    the     Appellant’s   sentence    is   manifestly   excessive,     clearly

unreasonable and inconsistent with the objectives of the Pennsylvania

Sentencing Code?” Anders Brief at 3.




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


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      Appellant’s question challenges the discretionary aspects of his

sentence. Accordingly, we bear in mind the following.

      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
         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).

      Nowhere in the record is any indication that Appellant preserved his

challenge for appeal by raising it at sentencing or in a post-sentence motion.

However, under our Anders review we will consider the merits of the issue.

See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citing

Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)

(concluding that Anders requires review of issues which otherwise would be

waived on appeal)).

      The instant statement of the reasons relied upon for allowance of

appeal claims that Appellant’s sentence violates the following provision of

the Sentencing Code: “The appellate court shall vacate the sentence and



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remand the case to the sentencing court with instructions if it finds: … the

sentencing court sentenced within the sentencing guidelines but the case

involves circumstances where the application of the guidelines would be

clearly unreasonable[.]”      42 Pa.C.S. § 9781(c)(2).      Anders Brief at 5.

Further, Appellant maintains that his sentence is inconsistent with 42 Pa.C.S.

§ 9721(b)2 because “the objectives of protecting the public and rehabilitation

could have been achieved without such a lengthy sentence”. Anders Brief

at 6.

        Assuming   arguendo   that   Appellant’s   issues   raise   a   substantial

question, we hold that the trial court did not abuse its discretion in ordering

standard-range, concurrent sentences.       The sentencing transcript reveals

that the trial court considered the pre-sentence investigation report, the

sentencing guidelines, and the statements of counsel for Appellant and the

Commonwealth regarding mitigating factors, the impact on the victim, and

Appellant’s repeated failure to seek help for his alcohol-abuse and anger-

management issues despite his extensive prior record of “multiple assaults,

DUIs, public drunks [sic] and disorderly conducts.” N.T., 4/10/2014, at 7.




2
  This section provides, in relevant part: “In selecting from the alternatives
set forth in subsection (a), the court shall follow the general principle that
the sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S.A. § 9721(b).


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In announcing Appellant’s sentence, the trial court offered the following

explanation:

             In your particular case it’s been pointed out you’ve got
      prior assault charges, DUI charges, public drunkenness,
      disorderly conduct, defiant trespass. You’ve basically been a
      pain for most of the magisterial district judges that have had to
      deal with you over the years. You’ve been sentenced to county
      level jail sentences; been sentenced before the magistrate
      district … judges; you were sentenced in Texas. You completed
      some of your sentences successfully, revoked in others.

             So when you look at the whole view of this thing, you’re
      really no better off than when you started committing offenses,
      which I think started all the way back in 1997 shortly after you
      got out of high school. …

            I don’t know … what you’ve been thinking about, but if I
      gave you probation they should impeach me because it would be
      absolutely absurd, given your record.

           You’ve got to take responsibility for your life and you
      haven’t done that.

Id. at 9-10.

      Clearly, the trial court individualized Appellant’s sentence based on the

failure of past, lesser terms of confinement to cause Appellant to change his

ways, the necessity to protect the public from Appellant’s repeated criminal

behavior, and Appellant’s need for state supervision and the attendant

counseling offered for alcohol abuse and anger management. Id. at 11. We

discern no indication that “the 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.




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Antidormi,    84    A.3d   736,   760-61    (Pa.   Super.   2014)   (quoting

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)).

     Therefore, we agree with counsel that the appeal is wholly frivolous.

Accordingly, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

     Judgment of sentence affirmed.        Petition to Withdraw as Counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2015




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