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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL ANTHONY SALTER,

                            Appellant                No. 1653 WDA 2014


           Appeal from the Judgment of Sentence September 9, 2014
                  in the Court of Common Pleas of Erie County
              Criminal Division at No.: CP-25-CR-0000591-2014


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 28, 2015

        Appellant, Michael Anthony Salter, appeals from the judgment of

sentence imposed after he pleaded guilty to one count each of possession of

a controlled substance and possession of drug paraphernalia.1 Counsel has

filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967), Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), on the basis

that the appeal is wholly frivolous. We grant counsel’s petition and affirm

Appellant’s judgment of sentence.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.
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        We   take   the   following    facts     and   procedural   history   from   our

independent review of the record. On January 29, 2014, Officers Gould 2 and

Christopher J. Szoszorek were dispatched to the scene of a domestic dispute

between Appellant and his girlfriend, Naomi Dodd. Upon the officers’ arrival

at the scene, Dodd told them that she did not want to pursue charges for the

domestic dispute, but that she would like Appellant to leave the residence

for a while.    Dodd consented to the officers’ entry into the apartment, at

which point they smelled marijuana. While looking for Appellant, the officers

found two potted marijuana plants and a digital scale. Thereafter, Appellant,

whose license was suspended, drove away from the residence in Dodd’s car.

        On March 24, 2014, the Commonwealth filed an information against

Appellant charging him with one count each of possession with intent to

deliver a controlled substance, possession of a controlled substance, and

driving while operating privilege is suspended or revoked; and three counts

of possession of drug paraphernalia.3             On September 9, 2014, Appellant

pleaded guilty to one count each of possession of a controlled substance and

possession of drug paraphernalia.              The Commonwealth nolle prossed the

remaining charges.        The same day, the court sentenced Appellant to an

aggregate term of eighteen months of county probation and twenty hours of
____________________________________________


2
    Officer Gould’s first name does not appear in the certified record.
3
  35 P.S. §§ 780-113(a)(30) and (a)(16), 75 Pa.C.S.A. § 1543(a), and 35
P.S. § 780-113(a)(32), respectively.



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community service, plus fines and costs. (See Sentencing Order, 9/09/14,

at 1). Appellant timely appealed.4 Counsel filed an Anders brief on January

12, 2015, and a petition to withdraw on January 13, 2015, on the basis that

the appeal is wholly frivolous.

       The standard of review for an Anders brief is well-settled:

       Court-appointed counsel who seek to withdraw from
       representing an appellant on direct appeal on the basis that the
       appeal is frivolous 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) file a brief
              referring to anything that arguably might support the
              appeal but which does not resemble a “no-merit”
              letter or amicus curiae brief; and (3) furnish a copy
              of the brief to the defendant and advise the
              defendant of his or her right to retain new counsel or
              raise any additional points that he or she deems
              worthy of the court’s attention.

             [T]his Court may not review the merits of the underlying
       issues without first passing on the request to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations

and most quotation marks omitted).             Further, our Supreme Court ruled in

Santiago, supra, that Anders briefs must contain “a discussion of
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4
  On October 10, 2014, the court ordered Appellant to file a Rule 1925(b)
statement. On October 30, 2014, counsel filed a statement of intent to file
an Anders/McClendon brief. See Pa.R.A.P. 1925(c)(4). On November 3,
2014, the trial court filed an opinion and order in which it stated that, in light
of counsel’s notice of intent to file an Anders/McClendon brief, no opinion
on the merits of Appellant’s appeal would issue. See Pa.R.A.P. 1925(a).




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counsel’s reasons for believing that the client’s appeal is frivolous[.]”

Santiago, supra at 360.

        Instantly, counsel’s Anders brief and petition to withdraw substantially

comply with the applicable technical requirements and reveal that he has

made “a conscientious examination of the record [and] determined that the

appeal would be frivolous[.]” Lilley, supra at 997. Additionally, the record

establishes that counsel served Appellant with a copy of the Anders brief

and petition to withdraw, and a letter of notice which advised Appellant of

his right to retain new counsel or to proceed pro se and raise additional

issues to this Court.5 See id.; (see also Petition for Leave to Withdraw as

Counsel, 1/13/15, Exhibit 1, at 1). Further, the petition and brief cite “to

anything that arguably might support the appeal[.]” Lilley, supra at 997;

(see also Anders Brief, at 4-7).               As noted by our Supreme Court in

Santiago, the fact that some of counsel’s statements arguably support the

frivolity of the appeal does not violate the requirements of Anders.       See

Santiago, supra at 360-61.

        Having concluded that counsel’s petition and brief substantially comply

with the technical Anders requirements, we must “conduct [our] own review

of the trial court’s proceedings and render an independent judgment as to



____________________________________________


5
    Appellant has not filed a response to the petition to withdraw.



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whether the appeal is, in fact, wholly frivolous.”                Lilley, supra at 998

(citation omitted).

        The Anders brief raises one question for our review:                 “Whether the

Appellant’s sentence is manifestly excessive, clearly unreasonable and

inconsistent with the objectives of the Pennsylvania Sentencing Code[?]”

(Anders Brief, at 3).

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

which     “must    be   considered      a      petition   for   permission   to   appeal.”

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation

omitted).6

        It is well-settled that:


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6
  “[I]ssues challenging the discretionary aspects of a sentence must be
raised in a post-sentence motion or by presenting the claim to the trial court
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.”          Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (citation
omitted); see also Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.
Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011).

       In the case before us, Appellant did not file a post-sentence motion or
raise an argument at sentencing that challenged his sentence, thus normally
waiving his issue. (See N.T. Plea and Sentencing Hearing, 9/09/14, at 7-
17); see also Cartrette, supra at 1042. However, because counsel has
filed a petition to withdraw, we will not deem Appellant’s issue waived. See
Commonwealth v. Bishop, 831 A.2d 656, 659 (Pa. Super. 2003) (noting
that, “[p]ursuant to Anders, this Court must review the merits of all claims
set forth in an Anders brief in order to determine whether to grant counsel’s
petition to withdraw from representation, despite the fact that the issues
have been waived.”) (citation omitted).



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      When challenging the discretionary aspects of the sentence
      imposed, an appellant must present a substantial question as to
      the inappropriateness of the sentence. Two requirements must
      be met before we will review this challenge on its merits. First,
      an appellant must set forth in his brief a concise statement of
      the reasons relied upon for allowance of appeal with respect to
      the discretionary aspects of a sentence. Second, the appellant
      must show that there is a substantial question that the sentence
      imposed is not appropriate under the Sentencing Code. That is,
      [that] the sentence violates either a specific provision of the
      sentencing scheme set forth in the Sentencing Code or a
      particular fundamental norm underlying the sentencing process.
      We examine an appellant’s Pa.R.A.P. 2119(f) statement to
      determine whether a substantial question exists. Our inquiry
      must focus on the reasons for which the appeal is sought, in
      contrast to the facts underlying the appeal, which are necessary
      only to decide the appeal on the merits.

Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (case

citations omitted) (emphases in original).

      Here, Appellant has met the procedural requirement of including a

Rule 2119(f) statement. (See Anders Brief, at 4-6). Accordingly, we must

consider whether Appellant’s statement raises a substantial question. See

Hill, supra at 363-64.

      Appellant’s Rule 2119(f) statement maintains that “the term of

probation ordered to be served by [him] conflicts with the objectives of

Section 9721(b)[]” where the court failed to consider mitigating factors such

as “his current and then-pending fatherhood, having graduated high school

and continuing vocational education in veterinary science and construction,

his employment at Berry Plastics, and the fact the controlled substance was

only two marijuana plants.”       (Anders Brief, at 6-7 (record citation


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omitted)). An allegation that the court failed to consider all relevant factors

does not raise a substantial question. See Commonwealth v. Moury, 992

A.2d 162, 175 (Pa. Super. 2010) (“That the court refused to weigh the

proposed mitigating factors as Appellant wished, absent more, does not

raise a substantial question.”) (citations omitted). Accordingly, we conclude

that Appellant has failed to raise a substantial question.

       Moreover, our own independent review reveals that the court did not

abuse its discretion7 when fashioning Appellant’s sentence.             The court

considered the particular circumstances of Appellant’s case, including the

fact that he is a father; his age; his educational background and

employment status; his criminal history; and the sentencing guidelines,

including his prior record and offense gravity scores.         (See N.T. Plea and

Sentencing Hearing, 9/09/14, at 13-17). Therefore, we agree with counsel

that Appellant’s issue on appeal is frivolous.         See Lilley, supra at 998.

Additionally, we find no other non-frivolous issues that would merit relief.

       Judgment of sentence affirmed.            Counsel’s application to withdraw

granted.



____________________________________________


7
  See Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (“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.”) (citation
omitted).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




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