J-S69004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DARRIN M. BATTLE

                            Appellant                 No. 2159 MDA 2015


      Appeal from the Judgment of Sentence imposed November 17, 2015
                In the Court of Common Pleas of Luzerne County
               Criminal Division at No: CP-40-CR-0000273-2013


BEFORE: STABILE, DUBOW, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 30, 2016

        Appellant, Darrin M. Battle, appeals from the judgment of sentence

imposed on November 17, 2015, in the Court of Common Pleas of Luzerne

County following his conviction of crimes relating to the delivery of heroin

and possession with intent to deliver heroin. 35 Pa.C.S.A. 780-113(a)(30).

On August 13, 2013, Appellant was sentenced to 24 to 60 months in prison

and was granted credit for time served.        Following denial of a motion to

modify his sentence, Appellant filed an appeal with this Court and then-

counsel filed an Anders brief and a petition to withdraw. However, counsel

failed to file a timely Rule 1925(b) statement with the trial court. In light of

counsel’s per se ineffectiveness, rather than remand for filing of a Rule
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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1925(b) statement, a panel of this Court sua sponte vacated the judgment

of sentence and remanded for resentencing, finding that the application of a

school zone sentencing enhancement was unlawful pursuant to Alleyne v.

United States, 133 S.Ct. 2151 (2013).      Commonwealth v. Battle, 106

A.3d 168 (Pa. Super. 2014) (unpublished memorandum), appeal denied,

124 A.3d 308 (Pa. 2015).

      On November 17, 2015, the trial court sentenced Appellant to 16 to 48

months in prison followed by one year of special probation. Appellant again

filed a motion to modify his sentence, contending that the rehabilitative

measures undertaken since his imprisonment warranted reduction of his

sentence to make him immediately eligible for parole. By order entered on

December 2, 2015, the trial court denied the motion.     This timely appeal

followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      In the brief filed by his counsel in accordance with Anders v.

California, 386 U.S. 738 (1969), as refined by Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), Appellant contends the trial court

abused its discretion in imposing the 16 to 48 month sentence. His counsel

concurrently filed a petition for leave to withdraw.   Following review, we

grant counsel’s petition for leave to withdraw and affirm Appellant’s

judgment of sentence.

      We must address the request to withdraw before reviewing the merits

of Appellant’s issue.   Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.


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Super. 2005).      As this Court recognized in Commonwealth v. Cartrette,

83 A.3d 1030 (Pa. Super. 2013) (en banc), our Supreme Court’s decision in

Santiago did not change the procedural requirements for requesting

withdrawal from representation.

        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 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.

Super. 2009)).

        We conclude counsel has satisfied the procedural requirements set

forth in Anders.          In the petition to withdraw, counsel explains his

conclusion, based on “a review of the record, . . . that this appeal is wholly

frivolous.”    Petition to Withdraw as Counsel, 6/27/16, at 1.       In addition,

counsel furnished a copy of the appellate brief to Appellant and advised

Appellant of his right to retain private counsel or act on his own behalf to

proceed pro se and file his own brief with this Court.1

        Having concluded counsel satisfied the procedural requirements of

Anders, we must ascertain whether the brief satisfies the substantive



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1
    Appellant did not file a response to the petition to withdraw.



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mandates prescribed in Santiago.               In Santiago, our Supreme Court

announced:

       [I]n 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.

Santiago, 978 A.2d at 361.

       In the Anders brief, counsel has included a statement of the case that

includes a procedural history of the case with a citation to the record. 2

Appellant’s Brief at 4-5. Counsel has satisfied the first requirement.

       The second required element of an Anders brief is reference to

anything in the record that counsel believes arguably supports the appeal.

Here, counsel notes that Appellant was initially sentenced to 24 to 60

months in a state correctional institution. On appeal, this Court vacated the

judgment of sentence and remanded for resentencing, finding that the

application of a school zone sentencing enhancement was unlawful under

Alleyne.     The trial court subsequently sentenced Appellant to 16 to 48

months in prison followed by one year of special probation. Counsel raises
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2
  While there is no specific number of citations required, we suggest to
counsel that, in the future, more than a singular citation to the record would
be more helpful.



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the question of whether the trial court abused its discretion in sentencing

Appellant to the high-end of the standard range.       Appellant’s Brief at 6.

Counsel has satisfied the second Anders requirement.

       Counsel has also satisfied the third element of Anders, stating his

conclusion that the appeal is frivolous. Id. at 7. Finally, counsel provided

his reasons for concluding the appeal is frivolous.   Id.    Thus, counsel has

satisfied the fourth and final element of the Anders test.

       We find counsel has satisfied the requirements for a petition to

withdraw. He complied with the briefing requirements, as explained above.

He also provided a letter to Appellant on June 27, 2016, advising Appellant

of counsel's conclusion that there are no meritorious issues to argue on

appeal and informing him of the right to retain private counsel or proceed

pro se and file his own brief with this Court. As reflected in the June 27,

2016 letter, counsel also furnished Appellant a copy of the petition to

withdraw and the Anders brief.3

       Having determined that the technical 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



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3
  Although counsel’s June 27, 2016 letter clearly indicates that counsel
furnished Appellant a copy of his petition to withdraw, we remind counsel
that the petition to withdraw should itself contain a proof of service.



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counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (citations and footnote omitted).

       Based upon our review, we conclude that the claim raised by counsel

in the Anders brief is frivolous and that there are no additional, non-

frivolous issues overlooked by counsel. The trial court sentenced Appellant

within the standard range.         We commend Appellant on any rehabilitative

measures he has undertaken since his sentencing.               However, the fact

Appellant has undertaken rehabilitative measures does not compel the trial

court to reduce his sentence to the point he is eligible for immediate parole.

       Appellant’s appeal involves a challenge to the discretionary aspects of

his sentence.     As such, he does not enjoy an absolute right to appeal but

must present a substantial question to this Court that his sentence violates a

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

norms underlying the sentencing process. Commonwealth v. Boyer, 856

A.2d 149, 152 (Pa. Super. 2004). We agree with Appellant’s counsel that no

substantial questions exists because the trial court did not violate the

Sentencing Code. Nor was the sentence contrary to the fundamental norms

underlying the sentencing process.             Consequently, Appellant’s issue is

frivolous and without merit. Appellant is not entitled to relief.4

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4
 In light of the Commonwealth’s lack of objection, we find it unnecessary to
address the requirement—not met here—to file a statement in compliance
with Pa.R.A.P. 2119(f) for a challenge to the discretionary aspects of
(Footnote Continued Next Page)


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      Counsel’s petition to withdraw granted.     Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016




                       _______________________
(Footnote Continued)

sentence. Commonwealth v. Myers, 86 A.3d 286, 289 n.3 (Pa. Super.
2014) (citing Commonwealth v. Bruce, 916 A.2d 657, 666 (Pa. Super.
2007)).



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