J-S56035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

STEVEN EARL ALLABAUGH,

                            Appellant                       No. 24 MDA 2014


          Appeal from the Judgment of Sentence November 25, 2013
               in the Court of Common Pleas of Luzerne County
              Criminal Division at No.: CP-40-CR-0000536-2013


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED SEPTEMBER 26, 2014

        Appellant, Steven Earl Allabaugh, appeals from the judgment of

sentence entered following his guilty plea to statutory sexual assault and



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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the

appeal is wholly frivolous.       We affirm the judgment of sentence and grant



        On July 2, 2013, Appellant entered an open guilty plea to one count

each of unlawful contact with a minor, incest, and statutory sexual assault. 1

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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(See Guilty Plea, 7/02/12, at unnumbered page 1). The offenses involved

his fourteen-year-old half-sister.          Following receipt and review of a pre-

sentence investigation report (PSI), on November 25, 2013, the sentencing

court sentenced Appellant to a term of incarceration of not less than sixty-

six months nor more than 132 months on the first count, to be followed by

an aggregate consecutive term of probation of eight years on the remaining

counts with credit for time served. (See N.T. Sentencing, 11/25/13, at 10-

11).    Further, the parties stipulated that Appellant met the criteria for a

sexually violent predator. (See id. at 2-3).

        On December 4, 2013, Appellant filed a motion to modify sentence,

which the trial court denied on that same date. The instant, timely appeal

followed. On December 31, 2013, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Following the withdrawal of trial counsel and the appointment of

new counsel, appellate counsel filed a statement of errors complained of on

appeal on March 20, 2014. See Pa.R.A.P. 1925(b). On April 17, 2014, the

trial court filed an opinion. See Pa.R.A.P. 1925(a). On July 8, 2014, counsel

filed a petition to withdraw and an Anders brief.

         On appeal, counsel in the Anders brief raises the following question

for our review:
                       _______________________
(Footnote Continued)
1
    18 Pa. C.S.A. §§ 6318(a)(1), 4302(b)(2), and 3122(a)(1), respectively.




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           Whether the [t]rial [c]ourt       abused   its   discretion   in
      sentencing the Appellant[?]

(Anders Brief, at 1).

                        -appointed counsel has petitioned for permission to

withdraw and has submitted an Anders brief, which is procedurally proper

for counsel seeking to withdraw on direct appeal.       See Anders, supra.

Court-appointed counsel who seeks to withdraw from representing an

appellant on direct appeal on the basis that the appeal is frivolous 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


      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, supra at 361. When we receive an Anders brief, we first rule on

the petition to withdraw and then review the merits of the underlying issues.

See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).

                                   Anders

record to

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

      In the instant matter, counsel has substantially complied with all the

requirements of Anders and Santiago. Specifically, he has petitioned this




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unnumbered page 1).          In addition, after his review of the record, counsel

filed a brief with this Court that provides a summary of the procedural

history and facts with citations to the record, refers to any facts or legal

theories that arguably support the appeal, and explains why he believes the

appeal is frivolous. (See Anders Brief, at 3-7). Lastly, he has attached, as

an exhibit to his petition to withdraw, a copy of the letter sent to Appellant

giving notice of his rights, and including a copy of the Anders brief and the

petition. See Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.

2005).     Appellant did not respond.            Because counsel has substantially

complied with the dictates of Anders, Santiago, and Millisock, we will

examine the issue set forth in the Anders brief that counsel believes has

arguable merit. See Garang, supra at 240-41.

       On appeal, the Anders brief challenges the discretionary aspects of his

sentence.2 The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004).                 When an appellant

challenges the discretionary aspects of the sentence imposed, he must


____________________________________________


2
  We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. (See Motion to Modify and Reduce Sentence, 12/04/13); see
also McAfee, infra at 275.




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Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).   An appellant must, pursuant to Pennsylvania Rule of



sentence violates a particular provision of the Sentencing Code or is contrary

to   the     fundamental   norms   underlying   the    sentencing   scheme.

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If



determine whether a substantial question exists. See Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000), appeal denied, 759 A.2d

920 (Pa. 2000)                                        reasons for which the

appeal is sought, in contrast to the facts underlying the appeal, which are

                                                           Id. (emphases in

original).

      The Anders brief in the present case does not contain a Rule 2119(f)

statement.                                Rule 2119(f) statement does not

automatically waive

from reaching the merits of the claim when the Commonwealth lodges an

                                                 Commonwealth v. Roser,

914 A.2d 447, 457 (Pa. Super. 2006), appeal denied, 927 A.2d 624 (Pa.

2007) (citation omitted). Because the Commonwealth has not objected to




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(See

       Appellant claims that his sentence was unreasonable and excessive.

(See Anders Brief, at 6). However, Appellant concedes that his sentence

was in the standard range of the Sentencing Guidelines. (See id.).

       A claim that a sentence was excessive and unreasonable can raise a

substantial question. See Commonwealth v. Mouzon, 812 A.2d 617, 627

(Pa. 2002). However,

             [w]hen imposing a sentence, a court is required to
       consider the particular circumstances of the offense and the
       character of the defendant. . . . Where the sentencing court had

       assume the sentencing court was aware of relevant information

       considerations along with mitigating statutory factors. Further,
       where a sentence is within the standard range of the guidelines,
       Pennsylvania law views the sentence as appropriate under the
       Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (some

internal quotation marks and citations omitted). Here, the sentencing court

stated that it had reviewed the PSI.    (See N.T. Sentencing, 11/25/13, at

10). The sentencing court then sentenced Appellant in the standard range;

thus, under our caselaw, the sentence is not excessive or unreasonable.

See Moury, supra; see also Commonwealth v. Cruz-Centeno, 668 A.2d

536, 545-46 (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (Pa. 1996)

(stating combination of PSI and standard range sentence, absent more,

cannot be considered excessive or unreasonable). Therefore, Appellant has

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not raised a substantial question that his sentence was excessive and

unreasonable, and we decline to address this issue.



conducted an independent review of the record as required by Anders and

Santiago and finds that no non-frivolous issues exist.

     Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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