J-S05024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                        Appellee       :
                                       :
           v.                          :
                                       :
GREGORY MARK DUNBAR,                   :
                                       :
                        Appellant      :     No. 920 WDA 2014


       Appeal from the Judgment of Sentence Entered May 23, 2014,
               In the Court of Common Pleas of Erie County,
            Criminal Division, at No. CP-25-CR-0003143-2013.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED FEBRUARY 10, 2015

     Appellant, Gregory Mark Dunbar, appeals from the judgment of

sentence entered following his convictions of robbery, attempt to commit

burglary, and conspiracy to commit robbery. Appellate counsel has filed a

petition to withdraw her representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), which govern a withdrawal from representation on

direct appeal.   We grant counsel’s petition to withdraw and affirm the

judgment of sentence.

     The procedural history of this case is summarized as follows.      In

relation to an incident in which Appellant and two other males attempted to

forcibly enter a residence occupied by three people, one of whom was an
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infant girl, Appellant was charged with one count each of robbery, attempted

burglary, conspiracy to commit robbery, possession of a small amount

marijuana, possession of drug paraphernalia, and three counts of recklessly

endangering another person. On March 11, 2014, a jury convicted Appellant

of the crimes of robbery, attempt to commit burglary, and conspiracy to

commit robbery.   On May 23, 2014, the trial court sentenced Appellant to

consecutive terms of incarceration of sixty to 120 months for the conviction

of robbery, twenty-one to forty-two months for the conviction of attempted

burglary, and forty to eighty months for the conviction of conspiracy to

commit robbery. Appellant’s aggregate sentence totaled 121 to 242 months

of incarceration, which was to be served consecutively to a sentence

previously imposed in Crawford County. Appellant was given credit for time

served.   That same day, Appellant filed a post-sentence motion seeking

modification of his sentence, which the trial court denied on May 27, 2014.

This timely appeal followed.

     In lieu of filing a Pa.R.A.P. 1925(b) statement, Appellant’s counsel filed

a statement of intent to file an Anders/McClendon brief, pursuant to

Pa.R.A.P. 1925(c)(4).    On June 16, 2014, the trial court filed a letter

indicating it was not preparing a Pa.R.A.P. 1925(a) opinion in light of the

notice of intent to withdraw filed by counsel under Pa.R.A.P. 1925(c)(4).




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      As noted, counsel has filed a petition to withdraw from representation.

Before we address the questions raised on appeal, we first must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal.

The procedural mandates are that counsel must

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within her petition

to   withdraw,   counsel    averred   that    she   conducted   a   conscientious

examination of the record.     Following that review, counsel concluded that

the present appeal is wholly frivolous. Counsel sent to Appellant a copy of

the Anders brief and petition to withdraw, as well as a letter, a copy of

which is attached to the petition to withdraw. In the letter, counsel advised

Appellant that he could represent himself or that he could retain private

counsel to represent him.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that




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      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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago. It sets forth the history of

this case and outlines pertinent case authority. We thus conclude that the

procedural and briefing requirements for withdrawal have been met.

      Counsel presents the following issue for our review:

      Whether the Appellant’s sentence is manifestly excessive, clearly
      unreasonable and inconsistent with the objectives of the
      Pennsylvania Sentencing Code?

Appellant’s Brief at 3.

      Appellant argues that the trial court abused its discretion in imposing

the sentence in this case. Specifically, Appellant contends that the sentence

imposed was harsh and excessive in light of the factors which should have

been considered by the sentencing court.

      It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).       Rather, an appellant’s appeal should be




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considered to be a petition for allowance of appeal.      Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).

     As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

              [W]e conduct a four-part analysis to determine:
              (1) whether 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

     Whether a particular issue constitutes a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-

case basis.    Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).    As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id. “A

substantial question will be found where the defendant advances a colorable



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argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citations omitted).

      Herein, the first three requirements of the four-part test are met;

Appellant brought an appropriate appeal, raised the challenge in his post-

sentence motion, and included in his appellate brief the necessary separate

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).   Therefore, we will next determine whether

Appellant has raised a substantial question requiring us to review the

discretionary aspects of the sentence imposed by the trial court.

      Specifically, in his Pa.R.A.P. 2119(f) statement, Appellant claims that

the sentencing court failed to properly consider the factors set forth in 42

Pa.C.S. § 9721(b). Appellant’s Brief at 4-6.1

      Appellant claims that the trial court simply relied upon the gravity of

the offense and failed to consider other circumstances in imposing a

sentence upon Appellant in the standard range of the sentencing guidelines.

Considering this claim to be an allegation that the sentencing court failed to

consider factors set forth under 42 Pa.C.S. § 9721(b), we conclude that, in



1
  We note that the factors to be considered under 42 Pa.C.S. § 9721(b)
include the protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the defendant.

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this   instance,     Appellant   has     raised       a    substantial   question.       See

Commonwealth v. Fullin,            892         A.2d       843, 847    (Pa.   Super.    2006)

(concluding that the appellant raised a substantial question where it was

alleged that the trial court failed to properly consider the factors set forth in

42 Pa.C.S. § 9721(b)).           Accordingly, because Appellant has stated a

substantial question, we will address this claim on appeal.

       It is undisputed that 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. Fullin, 892 A.2d at 847. In

this context, an abuse of discretion is not shown merely by an error in

judgment.    Id.     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.         Id.        Appellate review with respect to a

sentence    within    the   guidelines    is    whether       the    sentence   is    “clearly

unreasonable.” 42 Pa.C.S. § 9781(c)(2).

       Indeed, the sentencing judge has broad discretion in determining the

proper penalty, and this Court accords the sentencing court great deference,

as it is the sentencing court that is in the best position to view the

defendant’s character, displays of remorse, defiance, or indifference and the

overall effect and nature of the crime. Commonwealth v. Walls, 926 A.2d




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957, 961 (Pa. 2007) (quotations and citations omitted). 2         As previously

stated, when imposing a sentence, the sentencing court must consider “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. § 9721(b).        As we have stated, “a court is

required to consider the particular circumstances of the offense and the

character of the defendant.”     Commonwealth v. Griffin, 804 A.2d 1, 10

(Pa. Super. 2002). “In particular, the court should refer to the defendant’s

prior criminal record, his age, personal characteristics and his potential for

rehabilitation.” Id.


2
    The Walls Court instructed the following:

        In making this “unreasonableness” inquiry, the General
        Assembly has set forth four factors that an appellate court is to
        consider:

        (d) Review of the record.—In reviewing the record the appellate
        court shall have regard for:

              (1) The nature of the circumstances of the offense
              and the history and characteristics of the defendant.

              (2) The opportunity of the sentencing court to
              observe the defendant, including any pre-sentence
              investigation.

              (3) The findings upon which the sentence was based.

              (4) The guidelines promulgated by the commission.

        42 Pa.C.S. § 9781(d).

Id. at 963.

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      Appellant asserts that, in fashioning his sentence, the sentencing court

failed to properly consider Appellant’s relatively minor role in the commission

of the robbery, the fact that he was not yielding the weapon during the

crime, the fact that Appellant apologized to the victim and her family, and

that Appellant is actively supported by his family. Appellant’s Brief at 7.

      Our review of the record reflects that, after the sentencing court

reviewed a presentence report, heard testimony from a witness offered by

Appellant, accepted Appellant’s allocution that included an apology, received

a victim impact statement, and accepted letters about Appellant’s character,

it made the following statement:

            All right. Thank you. I’ve considered a number of things
      here, the presentence report in its entirety, and I’m going to
      make it a part of the record. I also received some letters in
      support of [Appellant] including a list of individuals who believe
      that he’s, in their estimation, a great man who is loved and
      missed. I’m going to make all those a part of the record and
      attach them to the presentence investigation report.

             I’ve also considered the Pennsylvania Sentencing Code and
      its factors, the guidelines, and the various statements made here
      to me today. I’ve also considered of course the trial testimony
      that – in this case, and I’m familiar with the facts of the case as
      outlined at that time.

            [Appellant], you’re not wasting my time. I mean, this is
      what I do. And as I looked at all this, it’s a little bit puzzling,
      because on the one hand you appear to have a lot of people that
      love and support you, and yet you have an extensive criminal
      record that indicates to me this [sic] in spite of this love and
      support, that has not been an influence on you, at least to the
      point where it’s deterred your criminal behavior.




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           As to these crimes, these were extremely serious, and
     those victims were absolutely terrorized. It was a young child.
     And, again, nobody put the gun in your hand, but you were
     there. You knew better given your background.

           And to say you were in the wrong place at the wrong time,
     that rings hollow, because a man with your background should
     have enough street smarts to know when you’re putting yourself
     in harm’s way. You were there because you wanted to be there.
     That’s the bottom line.

             I still think, as much of a mess as you’ve made out of your
     life, there is still some rehabilitative potential, but you’ve earned
     yourself a considerable jail sentence for what you did. And
     you’re going to have to pay that price before you can return to
     your family.

Notes of Testimony, Sentencing Hearing at 12-13.

     Upon review of the record, we conclude that the sentencing court

presented adequate reasons for imposing the sentence within the standard

range of the sentencing guidelines upon Appellant.       There is no indication

that the trial court ignored any relevant factors in fashioning the sentence.

Accordingly, it is our determination that there was no abuse of discretion on

the part of the sentencing court in fashioning Appellant’s sentence.         Thus,

we conclude this claim lacks merit.

     We also have independently reviewed the record in order to determine

whether   there   are   any   non-frivolous   issues   present   in   this   case.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having

concluded that there are no meritorious issues, we grant Appellant’s counsel

permission to withdraw, and affirm the judgment of sentence.


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      Petition of counsel to withdraw is granted.   Judgment of sentence

affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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