J-S64040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

EMMANUEL PAULINO

                           Appellant                   No. 442 MDA 2017


           Appeal from the Judgment of Sentence April 20, 2016
In the Court of Common Pleas of Luzerne County Criminal Division at No(s):
                        CP-40-CR-0000321-2014,
                         CP-40-CR-0004435-2013

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.

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

        Appellant, Emmanuel Paulino, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas. His attorney, David

V. Lampman, II, Esq. (“Counsel”), has filed an Anders1 petition for leave to

withdraw. Counsel identifies the following issues on appeal: (1) whether the

trial court abused its discretion in sentencing Appellant; and (2) whether

Appellant’s remaining claims qualify for relief.      Appellant filed a pro se

response to Counsel’s Anders brief.          We grant Counsel’s petition to

withdraw and affirm.




*   Former Justice specially assigned to the Superior Court.
1   Anders v. California, 386 U.S. 738 (1967).
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        On June 9, 2014, Appellant pled guilty in case number CP-40-CR-

00321 to Count 1 aggravated assault2 and Count 2 aggravated assault.3 In

case number CP-40-CR-004435-2013, Appellant pled guilty to manufacture,

delivery, or possession with intent to manufacture or deliver a controlled

substance4 (“PWID”), and conspiracy.5         The trial court summarized the

procedural posture of this case as follows:

             On August 28, 2014, [Appellant] was sentenced to an
           aggregate of 102 to 152 months[’] incarceration . . . .

                                   *    *     *

              [Appellant] did not file post-sentence motions or a
           direct appeal of this case.

              On September 18, 2015, [Appellant] filed a timely
           [(“PCRA”)6] petition.

              In the PCRA petition, [Appellant] alleged that he was
           entitled to relief pursuant to Alleyne[7] because he was
           sentenced to an illegal mandatory minimum sentence in
           Count 1 of 4435-2013.

              On April 20, 2016, after concurrence by the
           Commonwealth, the [c]ourt granted [Appellant’s] PCRA,
           vacated the mandatory minimum sentence on Count 1 of

2   18 Pa.C.S. § 2702(a)(1).

3   18 Pa.C.S. § 2702(a)(3).

4   35 Pa.C.S. § 780-113(a)(30).

5   18 Pa.C.S. § 903.

6   42 Pa.C.S. §§ 9541-9546.

7   Alleyne v. U.S., 133 S.Ct. 2151 (2013).



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          4435 of 2013, and resentenced him in accordance with
          Alleyne [ ] by issuing a 12 to 24 month standard range
          sentence.

             At the time of re-sentencing, [Appellant’s] aggregate
          minimum and maximum sentence was reduced by one (1)
          year.

            On May 16, 2016, [Appellant] timely filed a Notice of
          Appeal.

             On June 27, 2016, [Appellant] filed a concise statement
          of errors.

             On July 5, 2016, the Commonwealth filed a response to
          [Appellant’s] concise statement.

             On August 5, 2016, the [c]ourt issued an opinion on
          this matter pursuant to Pa.R.A.P. 1925(a).

             On July 15, 2016, the Superior Court issued an order
          dismissing [Appellant’s] appeal (819 MDA 2016) for his
          counsel’s failure to comply with the requirements
          concerning filing the docketing statement, Pa.R.A.P.
          3517.[8]

            On October 7, 2016, [Appellant] timely filed a pro se
          PCRA petition commencing this action.

8   Rule 3517 provides:

          Whenever a notice of appeal to the Superior Court is filed,
          the Prothonotary shall send a docketing statement form
          which shall be completed and returned within ten (10)
          days in order that the Court shall be able to more
          efficiently and expeditiously administer the scheduling of
          argument and submission of cases on appeal. Failure to
          file a docketing statement may result in dismissal of the
          appeal.

Pa.R.A.P. 3517.




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              The [c]ourt held a PCRA hearing . . . at which time the
           District Attorney and the Attorney General concurred in
           [Appellant’s] request to reinstate his direct appellate
           rights.

Trial Ct. Op., 4/21/17, at 2-4.      On March 7, 2017, the court granted the

PCRA petition and reinstated Appellant’s direct appellate rights. This appeal

followed.9

        Counsel identifies the following issues in the Anders brief:10

           1. Whether the sentencing court erred and/or abused its
           discretion in sentencing [Appellant]?

           2. Whether [Appellant’s] remaining claims are meretricious
           [sic] and/or qualify for relief?[11]

9 Appellant filed a notice of appeal on March 13, 2017. On March 23, 2017,
docketed March 29, 2017, this Court entered a per curiam order directing
the trial court to enter the March 7, 2017 order on the docket within 14
days. On March 27, 2017, the trial court complied with this Court’s Order.
“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the date thereof.” Commonwealth v. Cooper, 27 A.3d 994,
1008 (Pa. 2011) (citing Pa.R.A.P. 905(a)(5)) (quotation marks omitted).
Accordingly, the instant appeal is properly before us. See id.

10We note that Counsel filed a court ordered Pa.R.A.P. 1925(b) statement of
errors complained of on appeal on March 17, 2017.

11   The Anders brief raises two additional issues:

           3. Whether the undersigned’s analysis herein complies
           with Anders . . . .

           4. Whether undersigned’s petition to withdraw should be
           granted?

Anders Brief at viii.




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Anders Brief at viii.

      “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining

counsel’s request to withdraw.”    Commonwealth v. Wimbush, 951 A.2d

379, 382 (Pa. Super. 2008).

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

         Santiago, 978 A.2d at 361. 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.”




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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(some citations omitted).12      If counsel complies with these requirements,

“we will make a full examination of the proceedings in the lower court and

render an independent judgment [as to] whether the appeal is in fact

‘frivolous.’” Id. at 882 n.7 (citation omitted).

      Instantly, Counsel provided a factual summary of the case with

citations to the record.    Anders Brief at 1-16.      Counsel explained the

relevant law and discussed why Appellant’s claims are meritless. Id. at 17-

27. In conclusion, Counsel’s Anders brief stated: “There are no issues of

substantive merit to be presented on appeal.” Id. at 37.

      Counsel also provided Appellant with a copy of the Anders brief and a

letter advising Appellant of his rights. Counsel’s Appl. to Withdraw, 6/10/17.

In light of the foregoing, we hold Counsel has complied with the

requirements of Santiago.        See Orellana, 86 A.3d at 879-80.    We now

examine the record to determine whether the issue on appeal is wholly

frivolous. See id. at 882 n.7.




12Our Supreme Court in Santiago “emphasized the difference between an
Anders brief, which offers an issue for a court’s consideration, but reflects
counsel’s candid assessment of the complete lack of merit in his client’s
case, and a merits brief, which implies that an issue is worthy of review and
has some chance of succeeding.” Santiago, 978 A.2d at 359-60.




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      First, Counsel identified the following issue in the Anders brief:

“Whether the sentencing court erred and/or abused its discretion in

sentencing [Appellant]?” Anders Brief at viii.

      As a prefatory matter, we note that “[t]he right to appeal the

discretionary aspects of a sentence is not absolute.”     Commonwealth v.

Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008).

         This Court may only reach the merits of an appeal
         challenging the discretionary aspects of sentence where it
         appears that there is a substantial question that the
         sentence imposed is not appropriate under the Sentencing
         Code. A substantial question will be found where the
         defendant advances a colorable argument that the
         sentence imposed is either inconsistent with a specific
         provision of the code or is contrary to the fundamental
         norms which underlie the sentencing process.

Id. (quotation marks and citation omitted). In addition, Pennsylvania Rule

of Appellate Procedure 2119(f) requires that “[a]n appellant who challenges

the discretionary aspects of a sentence in a criminal matter shall set forth in

his brief a concise statement of the reasons relied upon for allowances of

appeal with respect to the discretionary aspects of a sentence.”     Pa.R.A.P.

2119(f); see also Booze, 936 A.2d at 1278.

      Counsel’s Anders brief does not contain a statement of reasons for

allowance of appeal pursuant to Rule 2119(f).         In Commonwealth v.

Lilley, 978 A.2d 995 (Pa. Super. 2009), this Court opined:

            The Anders brief challenges discretionary aspects of
         [the a]ppellant’s sentence. [The a]ppellant was required
         to “set forth in his brief a concise statement of the reasons



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         relied upon for allowance of appeal with respect to the
         discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

              The concise statement must specify where the
              sentence falls in relation to the sentencing guidelines
              and what particular provision of the code it violates.
              Additionally, the statement must specify what
              fundamental norm the sentence violates and the
              manner in which it violates that norm.          If the
              statement meets these requirements, we can decide
              whether a substantial question exists.

         Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.
         Super. 2004) (internal quotations and citations omitted).
         [The a]ppellant’s Pa.R.A.P. 2119(f) statement fails to cite
         what particular provision of the code or what specific
         fundamental norm [the a]ppellant’s sentence allegedly
         violates.

            Nevertheless, in light of Counsel’s petition to withdraw,
         we    address   [the    a]ppellant’s   contention.      See
         Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.
         Super. 2001) (concluding that Anders requires review of
         issues otherwise waived on appeal).

Id. at 998.

      We will review the issue nonetheless. See id. Our review is governed

by the following principles:

         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. In this
         context, 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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation

omitted).


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      In making a reasonableness determination, a court should consider

four factors:

         (1) The nature and circumstances of the offense and the
         history and characteristics of the defendant.

         (2) The opportunity of the sentencing court to observe the
         defendant, including any presentence investigation.

         (3) The findings upon which the sentence was based.

         (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d)(1)-(4).

      In Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011), this

Court held:

         [W]here the sentencing court imposed a standard-range
         sentence with the benefit of a pre-sentence report [“PSI”],
         we will not consider the sentence excessive. In those
         circumstances, we can assume the sentencing court was
         aware of relevant information regarding the defendant’s
         character and weighed those considerations along with
         mitigating statutory factors.

Id. at 298 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

1988)) (quotation marks omitted); see also Commonwealth v. Moury,

992 A.2d 162, 171 (Pa. Super. 2010) (stating “where a sentence is within

the standard range of the guidelines, Pennsylvania law views the sentence

as appropriate under the Sentencing Code”).

      At the resentencing hearing, the court asked Appellant’s counsel if

there had been any discussion with the Commonwealth prior to the hearing.

N.T., 4/20/16, at 2.



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       [Appellant’s counsel:] Yes, there has, Your Honor. I think
       we have a deal and I’d actually like [Appellant] to be
       sworn in just so we can take his testimony.

                                *     *      *

       Your Honor, specifically I believe the agreement that’s
       been reached with the Attorney General’s Office is on 4435
       of 2013, delivery of heroin, where a mandatory minimum
       was imposed.

          It is agreed that pursuant to the more recent case law,
       the mandatory minimum would be unconstitutional and
       therefore it is [Appellant’s] desire that he be resentenced
       as to that count.

          As it relates to anything else that he may have
       otherwise raised in any paperwork he filed, he would want
       to withdraw any other arguments or issues that he brought
       up.

          And I just want to make sure I’m correct with that.

       [Appellant:] Yes, sir.

       The Court: And . . . you have been counseled by [your
       Attorney] and had an opportunity to speak with him?

       [Appellant:] Yes.

                                *     *      *

       [Appellant’s counsel:] So it is my understanding that the
       standard range for the delivery of heroin would again be a
       six month to 14 month standard range, and ask only that
       count be resentenced within that standard range.

       The Court: Deputy Attorney General Abraham, at this point
       what is your position?

       [Deputy Attorney General:] . . . The Commonwealth has
       no opposition to granting [Appellant’s] PCRA request . . .
       to be resentenced on Count 1 of docket 4435 of 2013 to



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       reflect a sentence within the standard range of six to 14
       months.

       The Court: So both parties are stipulating to the standard
       range of sentencing on Count 1 . . . .

                               *       *    *

       The Court: Assistant DA Violi, do you care to be heard at
       this point?

       [Assistant DA:] Just with regard to the sentencing, I would
       restate my position from the original sentencing that the
       cases run consecutive to each other.

                               *       *    *

       The Court: Counsel, as I have indicated to you, I will grant
       a resentencing. And it will be as to the entire information,
       4435 of ‘13, Count 1, [PWID] and Count 2, conspiracy.

          Commonwealth in agreement?

       [The Commonwealth:] Yes, Your Honor.

       The Court: And [counsel for Appellant]?

       [Counsel for Appellant:] Yes.

       The Court: So noted.

          I will incorporate the [PSI] that was prepared in this
       matter August 12, of 2014, and I will ask whether there
       are any additional statements to be made by either party
       at this particular juncture.

       [Counsel for Appellant:] Yes, Your Honor, [Appellant]
       would like to give you an update since he’s been
       incarcerated.

       The Court: [Appellant] is sworn.

       [Appellant:] Yes, Your Honor.



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              I’ve been incarcerated two and a half years, I did my PC
           program and two other programs, I have no write ups.
           And I’m asking you just to have a reconsideration.

              I have to justify myself that I did cooperate with the
           Commonwealth of Pennsylvania with my aggravated
           assault and I did plea [sic] guilty.[13] I know I am guilty. I
           wasn’t on the right path in my life. I’ve got four kids out
           there and I really want to be the father that they deserve
           when I get out.

                                    *     *      *

           The Court: . . . I grant the PCRA relief as to resentencing
           on information 4435 of ’13 in accordance with the case
           law.




13   As to the aggravated assault counts, Appellant pled guilty to the following:

           The Commonwealth:        Your Honor, this took place on
           November 19th of 2013, in the early morning hours.
           [Appellant] was staying with the victim who is his girlfriend
           and mother of his children. They were in the same bed
           sleeping together.     [Appellant] with no warning then
           inserted his arm repeatedly into her anus up to his elbow
           and he caused significant damage. She required hours of
           surgery and has permanent damage which will require the
           lifelong use of colostomy bag.

              When the police arrived at the scene, [Appellant] also
           head butted Trooper Foux, F-O-U-X, causing damage to his
           not.

           The Court: So noted.      Are you pleading guilty to those
           charges?

           [Appellant:] Yes.

N.T. Guilty Plea Hr’g, 6/9/14, at 6-7.




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            [Appellant] has withdrawn all other requests in the
         PCRA petition and as such they are moot.             I have
         incorporated the [PSI], I take into account also the
         statements of [Appellant, the Attorney General, the
         Assistant DA, and Appellant’s counsel,] I’ve considered the
         nature of the offenses and the voluntariness of the plea.

            The sentence of the [c]ourt on 4435 of ’13, Count 1,
         possession with intent to deliver, I sentence you to a term
         of imprisonment in state prison for a period of not less
         than 12 months, no more than 24 months.

            On Count 2, conspiracy, I sentence you to
         imprisonment in a state prison for a period of not less than
         12 months, no more than 24 months, which shall be
         concurrent to the sentence imposed at Count 1.

                                  *     *      *

            Furthermore, today’s sentence is consecutive to the
         sentence imposed by the [c]ourt at information 321 of ’14.

Id. at 2-6, 8-9.

      We discern no abuse of discretion in the trial court’s conclusions.

Fullin, 892 A.2d 843. The court imposed a standard-range sentence with

the benefit of a PSI.   Therefore, Appellant’s sentence of twelve to twenty-

four months was not manifestly excessive.          See Corley, 31 A.3d at 298;

Moury, 992 A.2d at 171. We agree with Counsel that this claim is frivolous.

      The next claim identified by Counsel is that there was a negotiated

guilty plea agreement of three to six years’ imprisonment which was not

honored. Anders Brief at 27.      Our review of the record does not support

this claim. We agree with Counsel that this claim is also frivolous.




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      Lastly, the Anders brief and Appellant’s pro se response to the

Anders brief raise issues of the ineffective assistance of counsel. “[C]laims

of ineffective assistance of counsel will not be entertained on direct appeal.”

Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (citation

omitted). We acknowledge that there are exceptions to this rule; however,

they do not apply in the case at bar. See Commonwealth v. Holmes, 79

A.3d 562 (Pa. 2013) (discussing the continued viability and limited scope of

the exception enunciated in Commonwealth v. Bomar, 826 A.2d 831 (Pa.

2003)).    We will not address Appellant’s ineffective assistance of counsel

claims. See Liston, 977 A.2d at 1094. Therefore, we dismiss these claims

without prejudice to Appellant’s right to raise his ineffective assistance of

counsel claims on collateral review. See id. at 1094-95.

      A review of the record reveals no other meritorious issue that could

provide relief.

      Judgment of sentence affirmed.         Counsel’s petition to withdraw

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2017




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