J-S65042-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                                          :
            v.                            :
                                          :
SHAWN DELANEY,                            :
                                          :
                  Appellant               :           No. 1627 EDA 2017

           Appeal from the Judgment of Sentence April 13, 2017
            in the Court of Common Pleas of Delaware County,
            Criminal Division, No(s): CP-23-CR-0004378-2016

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED NOVEMBER 16, 2017

     Shawn Delaney (“Delaney”) appeals from the judgment of sentence

imposed following his guilty plea to two counts of aggravated assault and one

count each of discharge of a firearm in an occupied structure and possessing

an instrument of crime. See 18 Pa.C.S.A. §§ 2702(a)(2), 2707.1(a), 907(a).

Additionally, J. Anthony Foltz, Esquire (“Attorney Foltz”), has filed an

Application to Withdraw as counsel, and an accompanying brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967). We grant Attorney Foltz’s

Application to Withdraw, and affirm the judgment of sentence.

      On May 26, 2016, at approximately 6:18 p.m., the Springfield Township

Police Department responded to a home at 90 Hillview Drive in Springfield

Township, Delaware County, following reports of shotgun blasts. The police

encountered Judith Delaney, Delaney’s wife, who informed the police that

Delaney was intoxicated and possessed a shotgun.        The police set up a
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perimeter around the home and attempted to establish crisis negotiations with

Delaney.   Delaney fired two shots in the direction of the police officers.

Delaney also repeatedly told the officers to shoot him. Following the failure

to negotiate with Delaney, the police inserted a tactical robot into the home.

At approximately 9:15 p.m., the police observed Delaney passed out on his

bed and subsequently took him into custody.

      Delaney was charged with a host of crimes.      On February 10, 2017,

Delaney entered an open guilty plea to the above-mentioned crimes. The trial

court sentenced Delaney to an aggregate sentence of 12 to 24 years in prison,

followed by six years of probation. Delaney filed a timely Notice of Appeal.

The trial court ordered Delaney to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).1          In response,

Attorney Foltz stated that he intended to file an Anders brief.

      Before addressing Delaney’s issue on appeal, we must determine

whether Attorney Foltz has complied with the dictates of Anders and its

progeny in petitioning to withdraw from representation. Pursuant to Anders,




1
  Following the filing of the Notice of Appeal and the entry of the Concise
Statement Order, Delaney, while still counseled, filed a pro se Petition
pursuant to the Post Conviction Relief Act (“PCRA”), see 42 Pa.C.S.A.
§§ 9541-9546. It is well-settled that a PCRA petition may not be filed while a
direct appeal in the same case is pending. See Commonwealth v. Lark,
746 A.2d 585, 588 (Pa. 2000); see also Commonwealth v. Ali, 10 A.3d
282, 293 (Pa. 2010) (noting that pro se filings by a defendant, who at the
time of filing is represented by counsel, are considered legal nullities).


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when counsel believes that an appeal is frivolous and wishes to withdraw from

representation, he or she must

       (1) petition the court for leave to withdraw[,] stating that after
       making a conscientious examination of the record and
       interviewing the defendant, counsel has determined the appeal
       would be frivolous, (2) file a brief referring to any issues in the
       record of arguable merit, and (3) furnish a copy of the brief to
       defendant and advise him of his right to retain new counsel or
       to raise any additional points that he deems worthy of the court’s
       attention. The determination of whether the appeal is frivolous
       remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citations omitted).   Additionally, the Pennsylvania Supreme Court has

explained that a proper Anders 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

     Here, we conclude that Attorney Foltz has substantially complied with

each of the requirements of Anders and Santiago. See Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must

substantially comply with the requirements of Anders).          Attorney Foltz



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indicates that he made a conscientious examination of the record and

determined that an appeal would be wholly frivolous. Further, Attorney Foltz’s

Anders brief comports with the requirements set forth in Santiago. Finally,

the record contains a copy of the letter that Attorney Foltz sent to Delaney,

advising him of Attorney Foltz’s intention to seek permission to withdraw, his

right to proceed pro se or retain alternate counsel, and file additional claims.

Thus, Attorney Foltz has complied with the procedural requirement for

withdrawing from representation. We next examine the record and make an

independent determination of whether Delaney’s appeal is, in fact, wholly

frivolous.

        Attorney Foltz has filed a brief pursuant to Anders that raises the

following question for our review: “Did the trial court err in imposing such a

severe sentence on [] Delaney under the circumstances?” Anders Brief at 3.2

        Initially, Delaney challenges the discretionary aspects of his sentence.3

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).         Prior to reaching the merits of a discretionary

sentencing issue,

         [this Court conducts] a four-part analysis to determine: (1)
         whether appellant has filled a timely notice of appeal, see

2
    Delaney did not file a pro se brief or retain alternate counsel.

3
  Because Delaney entered an open guilty plea, his plea did not preclude a
challenge to the discretionary aspects of sentencing. See Commonwealth
v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).


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       Pa.R.A.P. 902 and 903; (2) whether the issue was properly
       preserved at sentencing or in a motion to reconsider and modify
       sentence, see 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 sentence appealed from is not
       appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

                                      ***

       The determination of what constitutes a substantial question
       must be evaluated on a case-by-case basis. A substantial
       question exists only when the appellant advances a colorable
       argument that the sentencing judge’s actions were either: (1)
       inconsistent with a specific provision of the Sentencing Code; or
       (2) contrary to the fundamental norms which underlie the
       sentencing process.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

      Here, Delaney filed a timely Notice of Appeal. However, he did not raise

his sentencing claim at the sentencing hearing or in a post-sentence motion

to modify the sentence. See Commonwealth v. Reaves, 923 A.2d 1119,

1125 (Pa. 2007) (stating that “failure to file a motion for reconsideration after

failing to object at sentencing … operates to waive issues relating to the

discretionary aspects of sentencing.”); see also Commonwealth v.

Williams, 787 A.2d 1085, 1088 (Pa. Super. 2010) (stating that claims

challenging discretionary aspects of sentencing are waived when the

sentencing judge is not afforded the opportunity to reconsider or modify the




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sentence though a post-sentence motion or an objection at sentencing).4

Thus, Delaney’s claim is not preserved for our review.

      Regardless of this defect, Anders requires that we examine the merits

of Delaney’s claim to determine whether his appeal is, in fact, “wholly

frivolous” in order to rule upon Attorney Foltz’s request to withdraw.        See

Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa. Super. 1990) (stating

that discretionary aspects of sentencing raised in an Anders brief must be

addressed on appeal, despite the fact that the claim was not properly

presented so as to determine whether counsel is entitled to withdraw); see

also Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating

that where counsel files an Anders brief, this Court will review discretionary

aspects of sentencing claims that were otherwise not properly preserved).

Thus, we will review Delaney’s sentencing claim.

      Our standard of review for challenges to discretionary aspects of

sentencing is well settled:

      [S]entencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias or
      ill will. It is more than just an error in judgment.




4
  Although Delaney failed to include a Rule 2119(f) statement in his brief, the
Commonwealth did not object to this defect. See Commonwealth v.
Pollard, 832 A.2d 517, 525 (Pa. Super. 2003) (noting that “[a]n appellant’s
failure to comply with Rule 2119(f) may be waived if the Commonwealth does
not object to the defect.”).


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

(citation omitted).

      Delaney asserts that the trial court imposed a harsh sentence. Anders

Brief at 8. Delaney claims that the trial court should have imposed a lesser

sentence based upon his mental illness, the physical abuse he had suffered,

the recent death of his daughter and the fact that he was suicidal, not

homicidal. Id.

      Here, in imposing sentence, the trial court reviewed a pre-sentencing

investigation report. See N.T., 4/13/17, at 8, 27, 29. Where the sentencing

judge is informed by a pre-sentencing investigation report, it is presumed that

they were aware of the all relevant sentencing factors and weighed all

mitigating statutory factors. See Commonwealth v. Fowler, 893 A.2d 758,

767 (Pa. Super. 2006); see also Commonwealth v. Ventura, 975 A.2d

1128, 1135 (Pa. Super. 2009) (noting that the “sentencing judge can satisfy

the requirement that reasons for imposing sentence be placed on the record

by indicating that he or she has been informed by the pre-sentencing report;

thus properly considering and weighing all relevant factors.”) (citation

omitted). The trial court considered the fact that Delaney was the victim of

abuse from his mother, father, step-father, and brothers as a child. N.T.,

4/13/17, at 11.   The trial court also considered the fact that Delaney was

diagnosed with post-traumatic stress disorder with major depression; he was

involuntarily committed to a mental institution; he self-medicated with alcohol



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and drugs; he was remorseful about the incident; his prior work history; and

the death of his daughter from a drug overdose. Id. at 9, 11, 12, 27-28, 30;

see also id. at 25 (wherein Delaney indicated he was sorry about the

incident).   The trial court additionally took into consideration Delaney’s

extensive prior criminal history, Delaney’s impact on the community, and the

statements of the police officers that responded to the scene. Id. at 13-23,

29-30. Thereafter, the trial court imposed the above-mentioned sentence.

Id. at 31. Based upon the foregoing, we discern no abuse of the sentencing

court’s discretion in imposing the sentence. See Ventura, supra; Flower,

supra.

      Further, our independent review discloses no other non-frivolous issues

that Delaney could raise on appeal. Accordingly, we grant Attorney Foltz’s

Application to Withdraw and affirm Delaney’s judgment of sentence.

      Application to Withdraw granted; judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2017




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