J-S60026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    PAUL E. PIECZYNSKI

                             Appellant                 No. 304 MDA 2019


        Appeal from the Judgment of Sentence imposed January 15, 2019
                 In the Court of Common Pleas of Luzerne County
                Criminal Division at No: CP-40-CR-0002993-2017


BEFORE: SHOGAN, STABILE, and PELLEGRINI,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 21, 2020

        Appellant, Paul E. Pieczynski, appeals from the judgment of sentence

the Court of Common Pleas of Luzerne County imposed on January 15, 2019.

Counsel has filed a brief and petition to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009).         We grant counsel’s petition to withdraw, and affirm

Appellant’s judgment of sentence.

        The facts and procedural history of the case are undisputed. Briefly, on

January 15, 2019, Appellant entered an open guilty plea to one count of

possession of heroin, 35 Pa.C.S.A. § 780-113(a)(16).        On the same day,




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Appellant was sentenced to a four-month term of probation. Appellant did not

file a post-sentence motion. This appeal followed.


      On appeal, counsel filed an Anders brief and raises only one issue that

arguably supports this appeal: the discretionary aspects of Appellant’s

sentence. Specifically, Appellant argues that the sentencing court abused its

discretion in fashioning his sentence.

      Before we address the merits of the challenge, we must consider the

adequacy of counsel’s compliance with Anders and Santiago. Our Supreme

Court requires counsel to do the following.

      Prior to withdrawing as counsel on a direct appeal under Anders,
      counsel must file a 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 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.

      Counsel also must provide a copy of the Anders brief to his client.
      Attending the brief must be a letter that advises the client of his
      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. Orellana, 86 A.3d 877, 879–80 (Pa. Super. 2014).




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      Upon review of the record, we conclude counsel has satisfied the

requirements set forth in Anders and Santiago.

      Having determined that the Anders and Santiago requirements are

satisfied, it is incumbent upon this Court to “conduct an independent review

of the record to discern if there are any additional, non-frivolous issues

overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (citations and footnote omitted).

      As noted, Appellant alleges an abuse of discretion by the sentencing

court in fashioning his sentence. While not stated, it would appear Appellant

is arguing the sentence was excessive.

      Because challenges to the discretionary aspects do not entitle an

appellant to appellate review as of right, an appellant challenging the

discretionary aspects of his sentence must invoke this Court’s jurisdiction by

satisfying a four-part test to determine: 1) whether the appellant has filed a

timely notice of appeal; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence; (3) whether the

appellant’s brief has a fatal defect; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code. See Commonwealth v. Moury, 992 A.2d 162, 169-70

(Pa. Super. 2010).

      We cannot address the merits of Appellant’s contention for two reasons.

First, Appellant failed to preserve the underlying claim before the trial court.


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Indeed, the record indicates that the challenge was not raised at the time of

sentencing, and that it was not raised in a post-sentence motion. Absent such

an effort, an objection to the discretionary aspects of a sentence is waived.

See, e.g., Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.

2013).

      Second, Appellant failed to raise a substantial question for our review.

Indeed, Appellant provides no reasons at all that would justify our review.

See, e.g., Commonwealth v. Reynolds, 835 A.2d 720, 733 (Pa. Super.

2003) (“Bald allegations of excessiveness are insufficient” to raise a

substantial question).

      In light of the foregoing, we conclude that Appellant has failed to invoke

our jurisdiction. Accordingly, we are precluded from addressing Appellant’s

challenge to the discretionary aspects of his sentence, and we affirm

Appellant’s judgment of sentence. See Moury, supra.

      Counsel’s petition to withdraw granted. Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2020




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