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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

RONALD FRANKLIN

                             Appellant                          No. 476 MDA 2014


            Appeal from the Judgment of Sentence January 17, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000464-2013


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                    FILED FEBRUARY 13, 2015

        Ronald Franklin appeals the judgment of sentence entered January 17,

2014, in the Luzerne County Court of Common Pleas.                        The trial court

imposed an aggregate sentence of 30 to 84 months’ incarceration following

Franklin’s guilty plea to two counts of indecent assault,1 and one count each

of     resisting   arrest,   disorderly        conduct,   and    public    drunkenness.2

Contemporaneous with this appeal, Franklin’s counsel has filed a petition to

withdraw from representation and an Anders brief.                     See Anders v.

California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434

A.2d 1185 (Pa. 1981).        The sole issue identified in counsel’s Anders brief is
____________________________________________


1
     18 Pa.C.S. §§ 3126(a)(1) and (2).
2
     18 Pa.C.S. §§ 5104, 5503(a)(4), and 5505, respectively.
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a challenge to the discretionary aspects of Franklin’s sentence.    For the

reasons set forth below, we affirm the judgment of sentence and grant

counsel’s petition to withdraw.

      The facts underlying Franklin’s arrest are garnered from the probable

cause affidavit attached to his criminal complaint. On January 19, 2013, the

victim, a 16-year-old female, reported that a male, later identified as

Franklin, began following her and asking her to stop and come to him. She

informed him of her age and he persisted in following her. The victim then

went into a local pharmacy, and stayed there until she believed the man had

vanished.    Subsequently, she exited the store and noticed Franklin was

following her again.    When he reached her, the victim stated Franklin

cornered her against a row home, touched her breasts, kissed her chest, and

then pulled down her pants.       Franklin then fondled her genitals and

penetrated her vagina with his finger. He told the victim that he lived with

his sister in the far left apartment of the row home and wanted her to come

inside with him. However, Franklin was apparently startled by the passing

traffic and fled around to the rear of the row home. The victim ran down the

street to seek help.

      Police Officer Marc Labar responded to the scene and spoke with the

victim.   He then walked with the victim to the row home apartments and

spoke with a woman named Edna Franklin, later determined to be Franklin’s

sister. The victim described her attacker to Edna and Edna stated that the


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victim’s attacker was her brother.             Edna said Franklin was not home but

could be found on South Main Street where he frequents a local pizza shop

for alcohol.     As Officer Labar was about to transport the victim to her

residence, Franklin walked down the street. The victim identified Franklin as

her attacker.     Franklin then exclaimed, “I didn’t do nothing.”       The officer

approached Franklin, informed him that he was under arrest, and asked him

to place his hands behind his back. The officer observed that Franklin had a

strong odor of alcohol emanating from his person.               Franklin refused to

comply, and began fighting with Officer Labar.             The officer then tackled

Franklin to the ground as Franklin continued to resist, but another

responding officer was able to handcuff him. Franklin spit on Officer Labar,

and kicked him several times while the officer tried to place him in the back

of the patrol car. Even while inside the patrol car, Franklin continued to be

hostile, violently kicking at the car windows in an attempt to break them.

See Criminal Complaint, 1/19/2013, at Probable Cause Affidavit.

       Franklin was arrested and charged with the above-stated crimes. He

signed a written plea agreement, which included that he must register under

Sex Offender Registration and Notification Act (“SORNA”)3, have no contact

with the victim, have no unsupervised contact with minors, refrain from

frequent places where children gather, and submit to a Sexual Offender

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3
    42 Pa.C.S. § 9799.13.



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Assessment Board (“SOAB”) evaluation. Franklin also completed a written

guilty plea colloquy. Both documents were presented to the court at his July

23, 2013 guilty plea hearing, wherein an oral colloquy also took place. The

court accepted his plea.

       Franklin failed to appear at his original sentencing and a bench warrant

was issued.     He was eventually lodged in the Luzerne County Correctional

Facility. On January 17, 2014, the court sentenced Franklin to an aggregate

term of 30 to 84 months’ incarceration.4 This timely appeal followed.5

       When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any

of the substantive issues raised on appeal. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa. Super. 2007).             Here, our review of the record
____________________________________________


4
    Specifically, the court imposed a sentence of 24 to 60 months’
incarceration for one count of indecent assault (by forcible compulsion), a
consecutive term of six to 24 months’ imprisonment for the resisting arrest
offense, a concurrent term of 12 to 24 months for the second count of
indecent assault (without consent), and a concurrent term of three to six
months for the disorderly conduct charge. The court imposed no further
penalty as to the summary offense of public drunkenness. See N.T.,
1/17/2014, at 15.
5
   On February 10, 2014, the trial court ordered Franklin to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Counsel for Franklin then filed a motion to file a nunc pro tunc concise
statement on March 6, 2014. The court granted this motion on that same
day. Counsel then filed a nunc pro tunc statement of intent to file an
Anders/McClendon brief in lieu of a concise statement. See Pa.R.A.P.
1925(c)(4). The court subsequently issued Pa.R.A.P. 1925(a) statement on
June 3, 2014, indicating that in light of the counsel’s nunc pro tunc
statement, it concluded there were no issues preserved for appellate review.



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reveals that counsel has substantially complied with the requirements for

withdrawal outlined in Anders, supra, and its progeny.                Specifically,

counsel filed a petition for leave to withdraw, in which he states his belief

that the appeal is frivolous, filed an Anders brief pursuant to the dictates of

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),6 furnished a

copy of the Anders brief to Franklin, and advised Franklin of his right to

retain new counsel or proceed pro se. Commonwealth v. Ferguson, 761

A.2d 613, 616 (Pa. Super. 2000).               Moreover, our review of the record

reveals no additional correspondence from Franklin.           Accordingly, we will

proceed to examine the record and make an independent determination of

whether the appeal is wholly frivolous.

       The only issue identified in counsel’s Anders brief challenges the

discretionary aspects of Franklin’s sentence. Specifically, Franklin contends

the trial court abused its discretion by imposing a sentence that was harsh

and excessive. Anders Brief at 3. He states “his problem with alcohol, and

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6
 The Supreme Court, in Santiago, supra, modified the procedures for filing
an Anders brief, stating that 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.

Santiago, supra, at 361.




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the fact that he was intoxicated at the time of the offense should have

mitigated his sentence.”   Id. at 4.    He also asserts he should have been

sentenced to inpatient rehabilitation and “attributes the court’s erroneous

determin[ation that] he was a Sexually Violent Predator to his alcohol

problem.” Id.

      The standard of review for a claim challenging the discretionary

aspects of sentencing is well-established:

      Sentencing is a matter vested in the sound discretion of the
      judge, and will not be disturbed on appeal absent a manifest
      abuse of discretion. An abuse of discretion is not shown merely
      by an error in judgment. Rather, the appellant must establish,
      by reference to the record, that the sentencing court ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citation omitted).     To reach the merits of a discretionary

issue, this Court must 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; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code.


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Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

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

     Here, Franklin filed a timely notice of appeal. However, our review of

both the docket entries and the certified record reveals no post-sentence

motions filed by Franklin to preserve his discretionary sentencing claim.

Moreover, he did not raise a challenge to his sentence during the January

17, 2014, sentencing hearing. Accordingly, we conclude this issue is waived.

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012), appeal

denied, 75 A.3d 1281 (Pa. 2013); see also Pa.R.A.P. 302(a) (“[I]ssues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

     Therefore, because Franklin waived his sole issue for appellate

purposes, we affirm his judgment of sentence. Furthermore, as mandated

by law, we have independently reviewed the record and agree with counsel

that the appeal is wholly frivolous.    See Commonwealth v. Woods, 939

A.2d 896, 898 (Pa. Super. 2007).

     Judgment of sentence affirmed.          Motion to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2015

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