J-S57033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GILB SANTIAGO-HERNANDEZ,                   :
                                               :
                       Appellant               :        No. 755 MDA 2019

      Appeal from the Judgment of Sentence Entered December 10, 2018
                in the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0002077-2018

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED DECEMBER 24, 2019

        Gilb Santiago-Hernandez (“Santiago-Hernandez”) appeals from the

judgment of sentence imposed following his guilty plea to three counts of

simple assault, and one count each of recklessly endangering another person,

disorderly conduct, and resisting arrest.1         Additionally, Robert M. Buttner,

Esquire (“Attorney Buttner”), has filed an Application to Withdraw as Counsel,

and an accompanying brief pursuant to Anders v. California, 386 U.S. 738

(1967).    We grant Attorney Buttner’s Application to Withdraw, and affirm

Santiago-Hernandez’s judgment of sentence.

        During the plea hearing, Santiago-Hernandez agreed to the following

statement of facts:

        On May 31st of 2018, [Santiago-Hernandez] did intentionally
        punch Amy B[e]ndick [(“Bendick”), his girlfriend,] in the face, as
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1   18 Pa.C.S.A. §§ 2701(a)(1), 2705, 5503(a)(1), 5104.
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       well as punch [Edwardsville Police] Officer Michael Lehman in the
       face, as well as [O]fficer Nicholas Rebal in the face. [Santiago-
       Hernandez] also recklessly endangered [] B[e]ndick by a course
       of conduct that put her at risk of bodily injury. He also engaged
       in a fight with the police that came to arrest him that day[,] as
       well as resisted arrest once the police were on the scene to take
       him into custody.

N.T., 10/22/18, at 5.

       On October 22, 2018, Santiago-Hernandez pled guilty to the above-

mentioned charges.2 Santiago-Hernandez also agreed to have no contact with

the victims; to undergo an anger management evaluation, and comply with

the recommendations; and to undergo a mental health evaluation and

batterer’s intervention evaluation, and to follow the recommendations. The

trial court deferred sentencing and ordered a pre-sentence investigation

report (“PSI”).

       On December 10, 2018, the trial court sentenced Santiago-Hernandez

to an aggregate prison term of 11-23 months.          The court also ordered

Santiago-Hernandez to complete 40 hours of community service. Additionally,

the court directed that Santiago-Hernandez would be immediately eligible for

work release, and, upon Bendick’s request, permitted Santiago-Hernandez to

resume contact with Bendick.




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2 Santiago-Hernandez agreed to plead guilty in exchange for withdrawal of
additional remaining charges. However, the plea agreement did not include
an agreement as to a specific negotiated sentence or a sentencing
recommendation.

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      Santiago-Hernandez filed a Motion to Modify Sentence the following day,

requesting that the court modify his sentence to a term of probation or house

arrest. On April 5, 2019, the trial court denied Santiago-Hernandez’s Motion

to Modify Sentence. Santiago-Hernandez thereafter filed a timely Notice of

Appeal.   The trial court ordered Santiago-Hernandez to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

In lieu of filing a concise statement, Attorney Buttner filed a Statement of his

intention to withdraw as counsel. On August 26, 2019, Attorney Buttner filed

an Application to Withdraw as Counsel, and an accompanying Anders Brief.

      We must first determine whether Attorney Buttner has complied with

the dictates of Anders in petitioning to withdraw from representation. See

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

banc) (stating that “[w]hen faced with a purported Anders brief, this Court

may not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record and
      interviewing the defendant, counsel has determined the appeal
      would be frivolous, (2) file a brief referring to any issues in the
      record of arguable merit, and (3) furnish a copy of the brief to the
      defendant and advise him of his right to retain new counsel or to
      raise any additional points that he deems worthy of the court’s
      attention. The determination of whether the appeal is frivolous
      remains with the [appellate] court.


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Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

       Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders 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
       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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

       In   the   instant   case,    Attorney    Buttner   has   complied   with   the

requirements set forth in Anders by indicating that he reviewed the record

and determined that Santiago-Hernandez’s appeal would be wholly frivolous.

Further, the record contains a copy of the letter that Attorney Buttner sent to

Santiago-Hernandez, informing him of Attorney Buttner’s intention to

withdraw, and advising him of his rights to proceed pro se, retain counsel, and

file additional claims.3     Finally, Attorney Buttner’s Anders Brief meets the

standards set forth in Santiago. Because Attorney Buttner has complied with

the procedural requirements for withdrawing from representation, we will




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3 Santiago-Hernandez did not file a pro se appellate brief, nor did he retain
alternate counsel for this appeal.

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independently review the record to determine whether Santiago-Hernandez’s

appeal is, in fact, wholly frivolous.

       In the Anders Brief, Attorney Buttner raises the following issue:

“Whether imposing a standard range sentence on each count and an

aggregate sentence of 11 months to 23 months, rather than probation or

house arrest, is harsh and excessive[,] constituting an abuse of discretion by

the trial court?” Anders Brief at 3.

       Santiago-Hernandez claims that the trial court imposed an excessive

sentence because the applicable sentencing range permitted probation or

house arrest.     Id. at 8-9.     Santiago-Hernandez also argues that the court

failed to consider mitigating factors such as his reconciliation with Bendick, his

acceptance of responsibility, and his employment until the time of sentencing.

Id. at 9, 11.

       Santiago-Hernandez        challenges    the   discretionary   aspects    of   his

sentence, from which there is no absolute right to appeal. 4                         See

Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013).                      Prior to

reaching the merits of a discretionary sentencing issue, this Court conducts



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4 Because the parties did not bargain for a specific sentence when negotiating
the guilty plea, Santiago-Hernandez is not precluded from challenging the
discretionary aspects of his sentence on appeal.          Commonwealth v.
Heaster, 171 A.3d 268, 271 (Pa. Super. 2017) (concluding that appellant
could challenge the discretionary aspects of his sentence after entering a
“hybrid” guilty plea, i.e., a plea that negotiated a particular aspect of the
sentence, but did not include a sentencing agreement).

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      a four-part analysis to determine: (1) whether the 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation

marks and some citations omitted).

      Here, Santiago-Hernandez filed a timely Notice of Appeal, preserved his

sentencing claim in his Motion to Modify Sentence, and included a separate

Rule 2119(f) Statement in the Anders Brief.           Additionally, Santiago-

Hernandez’s claim raises a substantial question for our review.             See

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

banc) (stating that “an excessive sentence claim—in conjunction with an

assertion that the [trial] court failed to consider mitigating factors—raises a

substantial question.” (citation omitted)).

      Our standard of review of a challenge to the discretionary aspects of a

sentence is well established:

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


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      The Sentencing Code provides that “the [trial] 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). The trial court

must also consider the sentencing guidelines.             See id.; see also

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

that “[w]hen imposing a sentence, the [trial] court is required to consider the

sentence ranges set forth in the Sentencing Guidelines….”).

      Importantly, the trial court in the instant case had the benefit of a PSI.

Where a trial court is informed by a PSI, “it is presumed that the court is aware

of all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed.”

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).               In discussing

Devers, this Court in Ventura explained as follows:

      In imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a [PSI], it will be presumed that he or she was aware of
      the relevant information regarding the defendant’s character and
      weighed those considerations along with mitigating statutory
      factors. Additionally, the sentencing court must state its reasons
      for the sentence on the record. The sentencing judge can satisfy
      the requirement that reasons for imposing sentence be placed on


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       the record by indicating that he or she has been informed by the
       [PSI]; thus properly considering and weighing all relevant factors.

Ventura, 975 A.2d at 1135 (citation omitted).

       Because the trial court here confirmed that it had reviewed Santiago-

Hernandez’s PSI (see N.T., 12/10/19, at 2), it is presumed that the court was

informed of and considered all mitigating factors, including Santiago-

Hernandez’s rehabilitative needs, character and history.           See Ventura,

supra. Both parties indicated that they had reviewed the PSI, and indicated

that they had no additions or corrections for the court to consider.          N.T.,

12/10/19, at 2. Additionally, Santiago-Hernandez’s counsel also stated that

Santiago-Hernandez was gainfully employed in a full-time position, and

Bendick explained to the court that she and Santiago-Hernandez had

reconciled. Id. at 2-3. Further, in imposing the standard-range sentence, the

trial court noted that Santiago-Martinez’s convictions arose out of a domestic

violence incident, and involved the assault of police officers. Id. at 2.

       Upon review, we do not find Santiago-Hernandez’s standard-range

sentence unreasonable, and we otherwise discern no abuse of the trial court’s

discretion. See Moury, 992 A.2d at 171 (explaining that “where a sentence

is within the standard range of the guidelines, Pennsylvania law views the

sentence as appropriate under the Sentencing Code.”). Our review confirms

that   the   trial   court   adequately    considered   the   relevant   sentencing

considerations, including mitigating factors, and was fully informed by a PSI.

See 42 Pa.C.S.A. § 9721(b); Sheller, supra; see also Ventura, supra.

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Thus, Santiago-Hernandez’s challenge to the discretionary aspects of his

sentence fails.

      Finally, our independent review of the record discloses no additional

non-frivolous issues that Santiago-Hernandez could raise on appeal.     We

therefore grant Attorney Buttner’s Application to Withdraw, and affirm

Santiago-Hernandez’s judgment of sentence.

      Application to Withdraw granted. Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2019




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