J-S56045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT MONACO,

                            Appellant                  No. 44 MDA 2015


          Appeal from the Judgment of Sentence December 11, 2014
               in the Court of Common Pleas of Luzerne County
              Criminal Division at No.: CP-40-CR-0000488-2014
                           CP-40-CR-0000879-2014
                           CP-40-CR-0002745-2014


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 06, 2015

        In these consolidated cases, Appellant, Robert Monaco, appeals from

the judgment of sentence imposed following his entry of guilty pleas at three

criminal docket numbers. Counsel for Appellant has petitioned to withdraw

on the ground that his issue on appeal is wholly frivolous.1          We grant

counsel’s petition to withdraw and affirm the judgment of sentence.

        The relevant facts and procedural history of this matter are as follows.

On July 2, 2014, Appellant pleaded guilty to one count each of resisting

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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arrest and corruption of minors2 at Docket No. CP-40-CR-0000879-2014.

While he was on bail pending sentencing, he was arrested for robbery.3

Appellant pleaded guilty to that offense on October 23, 2014, at Docket No.

CP-40-CR-0002745-2014.            On that same date, he pleaded guilty to one

count of insurance fraud4 at Docket No. CP-40-CR-0000488-2014. The court

ordered preparation of a pre-sentence investigation report (PSI),5 and the

cases were consolidated for sentencing purposes.

        On December 11, 2014, the trial court held a sentencing hearing, at

which defense counsel requested that the court impose a county sentence so

that Appellant could obtain treatment for his drug addiction in prison. (See

N.T. Sentencing, 12/11/14, at 3-4).            The Commonwealth did not oppose

imposition of a county sentence. (See id. at 5-6). The court stated:

              Again note that [Appellant] was on bail pending sentencing
        when the robbery offense occurred. We have considered all the
        submissions made at today’s sentencing hearing. Based on
        everything before the [c]ourt, the [c]ourt believes a term of
        incarceration is appropriate. I do not find [Appellant] to be
        amenable to supervision at this time, and we have concluded

____________________________________________


2
    18 Pa.C.S.A. §§ 5104 and 6301(a)(1)(i), respectively.
3
    18 Pa.C.S.A. § 3701(a)(1)(v).
4
    18 Pa.C.S.A. § 4117(a)(3).
5
  The PSI outlined Appellant’s prior convictions resulting in terms of county
incarceration for offenses including simple assault, reckless endangerment,
escape, and retaliation against a witness/victim. (See Trial Court Opinion,
3/26/15, at 2 n.3).



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      that rehabilitation at this point would be best achieved at the
      state level.

(Id. at 7).

      The court then sentenced Appellant to an aggregate term of not less

than twenty-one nor more than forty-eight months’ incarceration in a state

correctional institution.   On December 31, 2014, Appellant, acting pro se,

filed timely notices of appeal.

      On January 9, 2015, this Court entered a per curiam order directing

the trial court to hold a hearing pursuant to Commonwealth v. Grazier,

713 A.2d 81 (Pa. 1998), to determine whether Appellant desired counsel on

appeal. The trial court held a Grazier hearing on January 20, 2015, and it

appointed counsel in accordance with Appellant’s request. On February 20,

2015, the trial court entered an order directing Appellant to file a concise

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

Appellant timely complied on March 12, 2015, alleging trial court abuse of

discretion in refusing to permit him to serve his sentence in the county

correctional facility. (See Rule 1925(b) Statement, 3/12/15, at unnumbered

page 1). The Commonwealth filed a response on March 19, 2015, stating

that the court was correct in its sentencing decision. (See Commonwealth’s

Response, 3/19/15, at unnumbered page 2).        The trial court entered an

opinion on March 26, 2015. See Pa.R.A.P. 1925(a).

      On June 15, 2015, counsel for Appellant filed an Anders brief and a

petition to withdraw as counsel stating his belief that this appeal is wholly

frivolous.    (See Petition to Withdraw as Counsel, 6/15/15, at unnumbered

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page 1).    Counsel has submitted to this Court a copy of his letter to

Appellant, enclosing a copy of the Anders brief, informing him of the

petition to withdraw, and advising him of his right to retain new counsel or

proceed with the appeal pro se. (See Letter from Matthew P. Kelly, Esq. to

Appellant, 6/15/15, at unnumbered page 1). Appellant has not responded.

      [I]n the Anders brief that accompanies . . . 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.

Santiago, supra at 361.

          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 to either comply with Anders or file an
      advocate’s brief on Appellant’s behalf). 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.

Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)

(citations omitted).


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       In the instant case, counsel has complied with the Anders and

Santiago requirements.          He has submitted a brief that summarizes the

case, (see Anders Brief, at 4, 6); referred to anything that might arguably

support the appeal, (see id. at 5, 7); and set forth his reasoning and

conclusion that the appeal is frivolous, (see id. at 7-8).     See Santiago,

supra at 361.       Counsel has filed a petition to withdraw, sent Appellant a

letter advising that he concluded that there are no non-frivolous issues,

provided him with a copy of the Anders brief, and notified him of his right to

retain new counsel or proceed pro se. Because counsel’s petition and brief

satisfy the requirements of Anders and Santiago, we will undertake our

own review of the appeal to determine if it is wholly frivolous.          See

O’Malley, supra at 1266.

       The Anders Brief raises the following issue for our review:

       1. Whether the trial court abused its discretion in sentencing
       Appellant by not permitting him to serve his sentence in Luzerne
       County Correctional Facility when the Commonwealth did not
       oppose that request[?]

(Anders Brief, at 1).6

       Appellant’s issue challenges the discretionary aspects of his sentence.

Our standard of review is as follows:

             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. An abuse of
____________________________________________


6
   The Commonwealth submitted a letter to this Court advising that it is not
filing a brief and that it relies on the trial court’s opinion.



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     discretion is more than just an error in judgment and, on appeal,
     the trial court will not be found to 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.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted).

     However, “[t]he right to appeal the discretionary aspects of a sentence

is not absolute.”   Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.

Super. 2011) (citation omitted).

            Before we reach the merits of this [issue], we must engage
     in a four part analysis to determine: (1) whether the appeal is
     timely; (2) whether Appellant preserved his issue; (3) whether
     Appellant’s brief includes a concise statement of the reasons
     relied upon for allowance of appeal with respect to the
     discretionary aspects of sentence [, see Pa.R.A.P. 2119(f)]; and
     (4) whether the concise statement raises a substantial question
     that the sentence is appropriate under the sentencing code. . . .
     [I]f the appeal satisfies each of these four requirements, we will
     then proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).

     In the instant case, Appellant timely appealed and preserved his claim

in the trial court, and counsel has included a Rule 2119(f) statement in the

Anders brief.       See id.    With respect to the substantial question

requirement:

           The determination of what constitutes a substantial
     question must be evaluated on a case-by-case basis.         A
     substantial question exits only when the appellant advances a
     colorable argument that the sentencing judge’s actions were
     either: (1) inconsistent with a specific provision of the


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J-S56045-15


      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).

This Court has found an appellant’s claim that the trial court abused its

discretion by ordering him to serve his sentence in a state correctional

institution rather than in a county facility raises a substantial question. See

Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super. 2006).

Therefore, we will review Appellant’s claim on the merits.

      Section 9762 of the Sentencing Code addresses where a convicted

defendant will serve a sentence of imprisonment. See 42 Pa.C.S.A. § 9762.

Subsection (b) states, in relevant part:

      (1) Maximum terms of five or more years shall be committed to
      the Department of Corrections for confinement.

      (2) Maximum terms of two years or more but less than five
      years shall be committed to the Department of Corrections for
      confinement, except upon a finding of all of the following:

            (i)    The chief administrator of the county prison, or the
            administrator’s designee, has certified that the county
            prison is available for the commitment of persons
            sentenced to maximum terms of two or more years but
            less than five years.

            (ii)  The attorney for the Commonwealth has consented
            to the confinement of the person in the county prison.


            (iii) The sentencing court has approved the confinement
            of the person in the county prison within the jurisdiction of
            the court.




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       (3) Maximum terms of less than two years shall be committed
       to a county prison within the jurisdiction of the court.

42 Pa.C.S.A. § 9762(b)(1)-(3)(emphases added).

       Here, the length of Appellant’s maximum sentence is four years.

Thus, he is required to serve his sentence in a state correctional facility

unless all of the criteria set forth in section 9762(b)(2) are met.      See id.

Although the Commonwealth consented to Appellant’s confinement in the

county prison, the trial court declined to approve the request for county

confinement, finding that a state sentence is appropriate. Prior to imposing

sentence, the court stated that it had considered the PSI report, 7 the

applicable sentencing guidelines, and a letter authored by Appellant’s drug

and alcohol therapist.       (See N.T. Sentencing, 12/11/14, at 2, 4, 6).    The

court emphasized the fact that Appellant was on bail awaiting sentencing on

the resisting arrest and corruption of minors convictions at the time he

committed the robbery offense.             (See id. at 7).   It determined, after

considering everything in the record before it, that a term of incarceration

was appropriate and that Appellant’s rehabilitative needs would best be met

at the state level. (See id.).



____________________________________________


7
 “Our Supreme Court has determined that where the trial court is informed
by a pre-sentence report, it is presumed that the court is aware of all
appropriate sentencing factors and considerations[.]” Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009), appeal denied, 987 A.2d
161 (Pa. 2009) (citation omitted).




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      Upon review, we conclude that the trial court’s decision to commit

appellant to a state correctional institution, rather than a county facility, did

not constitute an abuse of discretion.      See Clarke, supra at 1287.       Our

review of the sentencing proceeding reveals that the trial court thoroughly

considered Appellant’s background and rehabilitative needs in deciding the

appropriate place of confinement.     Furthermore, after independent review,

we determine that there are no other non-frivolous bases for appeal, and

this appeal is “wholly frivolous.” O’Malley, supra at 1266.

      Judgment of sentence affirmed.        Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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