J-S27034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

EFRAIN DONES,

                        Appellant                  No. 1687 MDA 2015


          Appeal from the Judgment of Sentence August 26, 2015
           In the Court of Common Pleas of Lackawanna County
            Criminal Division at No(s): CP-35-CR-0000446-2015

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED APRIL 06, 2016

     This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Lackawanna County following Appellant’s open guilty

plea to the charge of carrying a firearm without a license, 18 Pa.C.S.A. §

6106(a)(1).   In addition to this appeal, Appellant’s 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, 602

Pa. 159, 978 A.2d 349 (2009). After a careful review, we grant counsel’s

petition to withdraw and affirm Appellant’s judgment of sentence.

     The relevant facts and procedural history are as follows: On May 28,

2015, Appellant, who was represented by the Public Defender’s Office,

appeared before the Honorable Vito P. Geroulo and pled guilty to the sole

charge indicated supra. At the guilty plea hearing, Appellant admitted that,


*Former Justice specially assigned to the Superior Court.
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on March 1, 2015, he was carrying a .22-caliber revolver without the

appropriate license to do so. N.T. guilty plea, 5/28/15, at 4.

      On August 26, 2015, Appellant proceeded to a sentencing hearing, at

the conclusion of which Judge Geroulo sentenced Appellant to three years to

seven years in prison. On August 28, 2015, Appellant filed a timely,

counseled motion for reconsideration of his sentence in which he challenged

the discretionary aspects of his sentence. The trial court denied the post-

sentence motion, and Appellant filed a timely, counseled notice of appeal.

All Pa.R.A.P. 1925 requirements have been met.       On December 29, 2015,

counsel filed an application to withdraw her representation, as well as a brief

pursuant to Anders and Santiago.

      “When faced with a purported Anders brief, this Court may not review

the merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super.

2005).   Before counsel is permitted to withdraw, he or she must meet

certain mandates, which have been summarized as follows:

             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. Commonwealth v. Smith, 700 A.2d 1301, 1303
      (Pa.Super. 1997). A proper Anders brief does not explain why
      the issues are frivolous and does not develop arguments against
      the appellant's interests. Smith, 700 A.2d at 1304. Rather, the
      brief articulates the issues in neutral form, cites relevant legal
      authorities, references appropriate portions in the record to aid

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     our review, and concludes that, after a thorough review of the
     record, the appeal is wholly frivolous. Id. at 1303–05.
            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). See Smith, 700 A.2d at
     1303–05. 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-frivolous issues, we will
     deny the petition and remand for the filing of an advocate's
     brief.
            In Commonwealth v. Nischan, 928 A.2d 349[, 353]
     (Pa.Super. 2007), we similarly stated:
            Consequently, what counsel must do in an Anders
            brief is: (1) set forth in a neutral fashion the issues
            that the appellant wants to raise; (2) cite for this
            Court relevant legal authorities such as leading
            cases, statutes, and/or rules that deal with those
            issues; (3) make reference to the appropriate
            portions of the record so that this Court can locate
            the facts pertinent to the claims; and (4) aver that,
            after a thorough review of the record, the appeal is
            frivolous.

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.Super. 2007) (citations

and quotations omitted).

     In the instant case, our review of counsel’s petition to withdraw,

correspondence advising Appellant of his right to proceed pro se or with




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privately-retained counsel,1 and the Anders brief satisfies us that counsel

has complied with all of the foregoing requirements. We, therefore, turn to

the issues presented in counsel’s Anders brief to make an independent

judgment as to whether the appeal is, in fact, wholly frivolous. Santiago,

supra.

        Appellate counsel has presented two issues in her Anders brief, both

of which challenge the discretionary aspects of Appellant’s sentence.

Specifically, she presents the following issues:

        1. Whether the sentence imposed was inappropriately harsh and
           excessive and an abuse of discretion?

        2. Whether the lower court failed to consider that the Appellant
           is a product of particular circumstances and conditions of
           environment, but that these matters were not fully and
           completely expressed at the time of sentencing?

Anders Brief at 4.

        The claims presented raise a challenge to the discretionary aspects of

Appellant’s sentence, which must be considered a petition for permission to

appeal. Commonwealth v. McAfee, 849 A.2d 270 (Pa.Super. 2004).

              To reach the merits of a discretionary sentencing issue, we
        must conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
        (2) whether the issue was properly preserved at sentencing or in
        a motion to reconsider and modify sentence, 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

____________________________________________


1
    Appellant has filed neither a pro se brief nor a privately-counseled brief.



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      sentence appealed from is not appropriate under the Sentencing
      Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super. 2007) (citation

omitted).

      Here, Appellant filed a timely notice of appeal and adequately

preserved his claims in his post-sentence motion.     Moreover, the Anders

brief includes a Rule 2119(f) statement. Additionally, assuming, arguendo,

the claims presented raise a substantial question, thus permitting our

review, we find the claims to be meritless.

      At the sentencing hearing, the trial court acknowledged it reviewed the

pre-sentence investigation report, reviewed additional records from the

prison to understand fully Appellant’s background, considered Appellant’s

rehabilitative needs, and indicated it was aware of the applicable sentencing

guidelines.     N.T. sentencing, 8/26/15, at 2, 12-13.      Defense counsel

informed the trial court that Appellant’s “path” changed when he was shot at

the young age of thirteen and, from that point forward, he became addicted

to illegal substances. Id. at 2. Defense counsel advised the trial court that

Appellant had been furloughed to Pyramid, where he completed the

program, and he was participating in an intense outpatient program. Id. at

4.   Moreover, defense counsel informed the trial court that Appellant had

recently received his high school diploma, was employed, and was accepted

into college.   Id. at 3-4.   Defense counsel indicated Appellant has “really




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transformed from a kid into somebody who’s ready to be an adult. Not just

an adult, but a productive adult.” Id.

      Furthermore, Appellant made a statement to the trial court, in which

he apologized for his actions, informed the court he was abused as a child by

his father, and advised the court he was ready to put his past criminal

actions behind him. Id. at 5-6.

      The trial court noted it considered Appellant’s youthful age, past

criminal history, and current criminal offense, including the fact that “but for

the adult who was in charge of the house [where] he was staying at who

gave permission for the search, [Appellant] probably would not have been

found with that gun.” Id. at 12. The trial court indicated that, after

consideration of all information, it was imposing a sentence in the mitigated

range. Id. at 13.

      Furthermore, in explaining the reasons for the sentence, the trial court

indicated in its Rule 1925(a) opinion, in relevant part, the following:

            Contrary to [Appellant’s] assertions, [Appellant’s] sentence
      here falls within the mitigated range of the sentencing guidelines
      and is not harsh, excessive or an abuse of discretion. The court
      did explain its reasons for the sentence, including that
      [Appellant] has a record going back to 2010 and has not been
      amenable to rehabilitation, [Appellant] had seven write-ups at
      the prison when serving his last sentence, and [Appellant]
      committed the crime here less than six months after being
      released from prison.
                                         ***
            [Appellant] also asserts that the court failed to take into
      consideration that he is a product of particular circumstances
      and an environment not fully expressed at the time of
      sentencing. . . .Th[e] court considered everything in

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       [Appellant’s] pre-sentence investigative file. The court also
       ordered and reviewed records from the prison where [Appellant]
       had served his last sentence. The court considered all of this
       information and weighed it against the mitigating factors in
       sentencing [Appellant] in the mitigated range.

Trial Court Opinion, filed 11/5/15, at 3-4.

       Inasmuch as the trial court had the benefit of a pre-sentence

investigation report, fully and adequately set forth the reasons for its

sentence, and fulfilled the requirements of 42 Pa.C.S.A. § 9721(b),2 we

conclude the trial court did not abuse its discretion in sentencing Appellant.

See Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa.Super. 2010)

(“Sentencing is vested in the discretion of the trial court and will not be

disturbed absent a manifest abuse of that discretion.”) (citation omitted).

We note that Appellant had the opportunity to express the fact he was “a

product    of    [his]   particular    circumstances   and   conditions   of   [his]

environment,” Anders Brief at 4, and the trial court indicated it considered

such factors in sentencing Appellant.

       After an independent review of the appeal, we find Appellant’s

challenges to the discretionary aspects of his sentence to be frivolous, and

we grant counsel’s petition to withdraw.
____________________________________________


2
  In fashioning a defendant’s sentence, the court must “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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     Petition to Withdraw Granted. Judgment of Sentence Affirmed.

     Judge Dubow joins the memorandum.

     Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2016




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