J-S12005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                       :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                          :        PENNSYLVANIA
                                       :
                                       :
              v.                       :
                                       :
                                       :
 HARRY JAMES VANDERPOOL, JR.           :
                                       :   No. 1346 MDA 2017
                   Appellant           :

           Appeal from the Judgment of Sentence July 31, 2017
   In the Court of Common Pleas of Bradford County Criminal Division at
                     No(s): CP-08-CR-0000150-2017



 COMMONWEALTH OF                       :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                          :        PENNSYLVANIA
                                       :
                                       :
              v.                       :
                                       :
                                       :
 HARRY JAMES VANDERPOOL, JR.           :
                                       :   No. 1347 MDA 2017
                   Appellant           :

           Appeal from the Judgment of Sentence July 31, 2017
   In the Court of Common Pleas of Bradford County Criminal Division at
                     No(s): CP-08-CR-0000131-2017


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 03, 2018

     Harry James Vanderpool, Jr., appeals from the judgment of sentence,

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

plea to two counts of theft by unlawful taking and one count of defiant
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trespass.1 Counsel has also filed a motion to withdraw pursuant to Anders.2

After review, we affirm and grant counsel’s motion for withdrawal.

        On June 1, 2017, Vanderpool entered an open guilty plea to theft by

unlawful taking graded as a misdemeanor of the first degree, and on July 31,

2017, the trial court sentenced him to 12 to 36 months’ incarceration. The

same day, Vanderpool entered an open guilty plea to a separate charge of

theft by unlawful taking and defiant trespass.3     The trial court sentenced

Vanderpool to an additional 12 to 36 months’ incarceration to run

consecutively to his June 1, 2017 guilty plea sentence. Vanderpool filed a

timely post-sentence motion for reconsideration of sentence,4 which the trial

court denied on August 11, 2017.

        Vanderpool timely appealed, and both he and the trial court have

complied with Pa.R.A.P. 1925.5 On appeal, Vanderpool raises one issue for

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1   18 Pa.C.S.A. § 3901 and 18 Pa.C.S.A. § 3503(b), respectively.

2.Anders    v. California, 368 U.S. 738 (1967).

3On September 9, 2017, this Court consolidated these matters sua sponte
pursuant to Pa.R.A.P. 513.
4 Vanderpool entered open guilty pleas, and thus, he did not waive his right
to file a motion for reconsideration of sentence. See Commonwealth v.
Coles, 530 A.2d 453, 457 (Pa. Super. 1983) (where plea agreement is open
one, as opposed to one for negotiated sentence, defendant can properly
request reconsideration of sentence after sentencing, as court alone decides
sentence, and no bargain for stated term, agreed upon by defendant and
prosecution, is involved).




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our review:       “Was the sentence imposed . . . excessive in light of

[Vanderpool’s] circumstances, particularly with regard to [his] treatment and

rehabilitative needs?” Anders Brief, at 3.

       Preliminarily, we address counsel’s motion to withdraw.              To obtain

permission to withdraw, counsel must file an Anders brief that meets the

requirements established by our 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
       counsel reasonably believes 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 statuses on point that have led to the conclusion
       that the appeal is frivolous.

Id. at 361. Counsel must provide the appellant with a copy of the Anders

brief along with a letter that advises the appellant of his or her right to “(1)

retain new counsel to pursue the appeal; (2) proceed pro se on appeal or (3)

raise any points that the appellant deems worthy of the court’s attention in

addition    to   the   points    raised    by    counsel   in   the   Anders    brief.”

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).

Substantial      compliance       with     these    requirements       is   sufficient.


____________________________________________


5 Vanderpool’s counsel initially filed an Anders brief that did not fully comply
with the dictates of Anders and Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009). Consequently, on May 2, 2018, we remanded this case with
instructions for counsel to file a compliant motion to withdraw together with
an Anders brief or an advocate’s brief on behalf of Vanderpool. On June 20,
2018, counsel filed a petition to withdraw and an Anders brief. Having
retained jurisdiction, we now revisit Vanderpool’s appeal.

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Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007). “After

establishing that the antecedent requirements have been met, this Court must

then make an independent evaluation of the record to determine whether the

appeal is, in fact, wholly frivolous.”   Commonwealth v. Palm, 903 A.2d

1244, 1246 (Pa. Super. 2006).

        Here, our review of the record reveals counsel has complied with the

requirements for withdrawal outlined in Anders, and its progeny. Notably,

counsel has completed the following:        (1) he filed a petition for leave to

withdraw, in which he states he has made a conscientious examination of the

record and concludes Vanderpool’s appeal is wholly frivolous; (2) he filed an

Anders brief pursuant to the dictates of Santiago; (3) he furnished a copy

of the Anders brief to Vanderpool; and (4) he advised Vanderpool of his right

to retain new counsel or proceed pro se. Commonwealth v. Catrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Therefore, we “proceed to an

independent evaluation of the record in order to determine the accuracy of

counsel’s averment that the instant appeal is frivolous.” Palm, 903 A.2d at

1246.

        Vanderpool baldly asserts that his sentence was excessive and that the

sentencing court did not consider his circumstances. Specifically, Vanderpool

argues that the sentencing court ignored the deteriorating health condition of

his ailing mother, whom he wished to care for.

        Our standard of review in discretionary aspects of sentencing claims is

well settled:

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     The proper standard of review when considering whether to affirm
     the sentencing court’s determination is an abuse of discretion. . .
     . An abuse of discretion is more than a mere error of judgment;
     thus, a sentencing court will not have abused its discretion unless
     the record discloses that the judgment exercised was manifestly
     unreasonable, or the result of partiality, prejudice, bias or ill-will.
     In more expansive terms, our Court recently offered: An abuse
     of discretion may not be found merely because an appellate court
     might have reached a different conclusion, but requires a result of
     manifest unreasonableness, or partiality, prejudice, bias, or ill-
     will, or such lack of support so as to be clearly erroneous.

     The rationale behind such broad discretion and the concomitantly
     deferential standard of appellate review is that the sentencing
     court is in the best position to determine the proper penalty for a
     particular offense based upon an evaluation of the individual
     circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010)

(brackets omitted), quoting Commonwealth v. Walls, 926 A.2d 957, 961

(Pa. 2007).

     Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right. Id. at 170. Prior to reaching the merits of a

discretionary sentencing issue,

     [this Court conducts] a four part analysis to determine: (1)
     whether appellant has filed at 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, [see] Pa.R.A.P. 2219(f); and (4) whether there
     is a substantial question that the sentence appealed from is not
     appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. §
     9781(b).
Id. (citation omitted).




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        If the sentence imposed falls within the sentencing guidelines, no

substantial question exists as to whether the sentence is appropriate under

the Sentencing Code.6 Commonwealth v. Maneval, 688 A.2d 1198 (Pa.

Super. 1997). Furthermore, a sentencing court has discretion to impose

sentences consecutively or concurrently and, ordinarily, a challenge to this

exercise of discretion does not raise a substantial question as to the

appropriateness      of   sentence,     for    purposes   of   determining   whether

discretionary aspects of sentence may be appealed. Moury, 992 A.2d at 171.

        An allegation that the sentencing court failed to consider mitigating

factors generally does not raise a substantial question for review on appeal.

Commonwealth v. Rhoades, 8 A.3d 912, 918 (Pa. Super. 2010). Where

the sentencing court had the benefit of a pre-sentence investigation report,

we may assume that the sentencing court was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors. Id. at 919.

        Instantly, Vanderpool’s aggregate sentence of 24 to 60 months’

imprisonment was the minimum the trial court could impose and falls within

the sentencing guidelines.        That his two sentences run consecutive to one

another is inconsequential. Moury, supra. Furthermore, the record belies

Vanderpool’s assertion that the trial court did not consider his circumstances;

the trial court had the benefit of a PSI. Rhoades, supra. Therefore, we find
____________________________________________



6   42 Pa.C.S.A. §§ 9701-9799.75.

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Vanderpool has not raised a substantial question permitting us to review his

discretionary aspects of sentence claim. Accordingly, we affirm Vanderpool’s

judgment of sentence and we grant counsel’s motion for withdrawal.      See

Commonwealth v. Ladamus, 896 A.2d 592, 596 (Pa. Super. 2006) (since

defendant failed to raise substantial question that sentence was excessive as

to permit appellate review of discretionary aspects of sentence, review of

merits of challenge to discretionary aspects of sentence was unwarranted and

defense counsel would be permitted to withdraw).

     Judgment of sentence affirmed. Motion for withdrawal granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/3/2018




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