J-S67003-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

JEFFREY STEVEN ALBUQUERQUE,

                          Appellant                  No. 391 MDA 2015


          Appeal from the Judgment of Sentence December 18, 2014
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0001010-2014


BEFORE: BOWES, PANELLA, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 14, 2015

       Jeffery Steven Albuquerque appeals from the judgment of sentence of

twenty-four to forty-eight months imprisonment that the trial court imposed

after Appellant tendered an open guilty plea to one count of possession of a

controlled substance (heroin) with intent to deliver (“PWID”). Counsel has

filed a petition to withdraw from representation and a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).           We grant counsel’s petition to

withdraw and affirm.

       The record reveals the following.      During a routine traffic stop,

Appellant was found in possession of forty-seven baggies of heroin that

weighed approximately 1.2 grams. He admitted to police that he intended


*
    Retired Senior Judge assigned to the Superior Court.
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to sell the drugs in question.          Appellant was charged with various drug

offenses.    Appellant filed an omnibus pretrial motion arguing that, due to

Alleyne v. United States,            U.S.      , 133 S.Ct. 2151 (2013), he could not

be sentenced to a mandatory sentence applicable under 42 Pa.C.S. § 7508,

which outlines various mandatory minimum sentences according to the

weight of the drugs involved in a case and a defendant’s prior drug

trafficking convictions.1 See Commonwealth v. Vargas, 108 A.3d 858

(Pa.Super.     2014)    (en    banc)    (holding    that   18   Pa.C.S.   §   7508    is

unconstitutional to the extent it imposes a mandatory minimum sentence

based upon the weight of drugs possessed by a defendant); see also

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (holding different

mandatory      minimum sentencing provision was unconstitutional under

Alleyne and could not be made constitutional through severance).                     The

Commonwealth opposed the motion, oral argument was held, and the

matter was taken under advisement. No ruling was rendered on the motion.

       On November 3, 2014, Appellant tendered an open guilty plea to one

count of PWID. The matter proceeded to sentencing on December 18, 2014.

The trial court offered Appellant an opportunity to withdraw his guilty plea,

and Appellant declined. The court had the benefit of a pre-sentence report,

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1
  We note that the fact of a prior conviction invoking § 7508 would not
conflict with Alleyne. See Apprendi v. New Jersey, 530 U.S. 466 (2000).



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which revealed that Appellant had a prior record score of four and a

significant history of drug offenses.          The offense gravity score was seven,

and the standard range of the sentencing guidelines called for a minimum

sentence of eighteen to twenty-four months. 204 Pa.Code § 303.16 (basic

sentencing matrix); accord N.T. Sentencing, 12/18/14, at 8. Appellant was

sentenced in the standard range to twenty-four to forty-eight months

imprisonment;2 the mandatory sentence was not considered. Appellant filed

the present appeal, and new counsel was appointed. As noted, counsel has

moved to withdraw.

       Since we do not consider the merits of an issue raised in an Anders

brief without reviewing a request to withdraw, we first consider counsel’s

petition to withdraw.          Commonwealth v. Cartrette, 83 A.3d 1030

(Pa.Super. 2013) (en banc). In order to be permitted to withdraw, counsel

must meet three procedural requirements: 1) petition for leave to withdraw

and state that, after making a conscientious examination of the record,

counsel has concluded that the appeal is frivolous; 2) provide a copy of the
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2
   The trial court implied in its opinion that the sentence was outside the
guidelines. Trial Court Opinion, 6/8/15, at 3. The ranges set forth in the
guidelines are all minimum terms of incarceration. 204 Pa. Code § 303.8
(“Numeric    sentence    recommendations.      All  numbers     in   sentence
recommendations suggest months of minimum confinement pursuant to
42 Pa.C.S. §9755(b)(partial confinement) and §9756(b)(total confinement.”)
(emphasis added). The sentencing matrix called for a standard range
sentence of eighteen to twenty-four months. Hence, a minimum sentence of
twenty-four months fell within the standard range of the guidelines.



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Anders brief to the defendant; and 3) inform the defendant that he has the

right to retain private counsel or raise, pro se, additional arguments that the

defendant deems worthy of the court’s attention. Id.

         Counsel’s petition to withdraw sets forth that she made a conscientious

review of the record and researched the matter thoroughly and diligently.

Counsel concluded that the matter was frivolous.               Counsel informed

Appellant that she was seeking to withdraw and furnished him with copies of

both the petition to withdraw and Anders brief.             Further, counsel told

Appellant that he had the right to hire counsel or to represent himself by

filing a pro se brief raising any issue that he believed to be meritorious. The

letter    to   Appellant   is   appended   to   counsel’s   motion   to   withdraw.

Accordingly, counsel has complied with the procedural aspects of Anders.

         We must now examine whether counsel’s Anders brief meets the

substantive elements of Santiago. Pursuant to Santiago, an 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.

Santiago, supra at 361.




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       In her appellate brief, counsel has included a summary of the history

of the case, including the relevant factual background. She has cited to the

record and presents an issue regarding the discretionary aspects of the

sentence, claiming that it is excessive.         Counsel delineates case law that

establishes that the issue in question is frivolous.       Counsel’s brief reports

that after she “made a conscientious review of the record,” she “believes

that this appeal is wholly frivolous.” Appellant’s brief at 7. Thus, counsel’s

brief complies with Santiago.

       The sole issue raised on appeal is that the sentence was excessive.3

Initially, we observe that the issue in question was not preserved at

sentencing or in a post-sentence motion and is therefore waived.           As we

noted in Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.Super. 2013)

(citation and emphasis omitted), “Issues challenging the discretionary

aspects of a sentence must be raised in a post-sentence motion or by
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3
    The trial court incorrectly indicated in its opinion that this issue was
waived because it was not included in Appellant’s Pa.R.A.P. 1925(b)
statement. Trial Court Opinion, 6/8/15, at 3. Counsel set forth in the
statement that an Anders brief would be filed on appeal. Hence, the issue
was not waived. Pa.R.A.P. 1925(c)(4) provides that, “In a criminal case,
counsel may file of record and serve on the judge a statement of intent to
file an Anders/McClendon brief in lieu of filing a Statement.” Any issues
raised in the brief will be considered by the appellate court. If, “upon review
of the Anders/McClendon brief, . . . [it] believes that there are arguably
meritorious issues for review, those issues will not be waived; instead,
the appellate court may remand for the filing of a Statement, a supplemental
opinion pursuant to Rule 1925(a), or both.” Pa.R.A.P. 1925(c)(4)(emphasis
added).



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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.”

      Nevertheless, even if the issue had not been waived, counsel’s

assessment of its frivolity is correct. We observe that:

      [s]entencing 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.

Id. at 937 (citation omitted). When a court has the benefit of a presentence

report and sentences within the standard range of the sentencing guidelines,

a sentence will not be considered excessive. Id. (“where a sentence is within

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

as appropriate under the Sentencing Code”).       Herein, the court explained

that the sentence was premised upon the fact that Appellant had a prior

drug dealing conviction from New          Jersey and another      one   in this

Commonwealth.     The presentence report also indicated that Appellant was

probably affiliated with a gang, which conclusion was supported by tattoos

on his body.   Thus, we concur with counsel’s assessment that Appellant’s

challenge to the discretionary aspects of his sentence is frivolous.




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      Before permitting counsel to withdraw and affirming the judgment of

sentence, we must also undertake an independent examination of the entire

record and agree with counsel that there are no non-frivolous issues.

Commonwealth v. Goodwin, 928 A.2d 287 (Pa.Super. 2007) (en banc);

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014) (“We now

must conduct an independent review of the record to determine whether the

issues identified by [the defendant] in this appeal are, as counsel claims,

wholly frivolous, or if there are any other meritorious issues present in this

case.”).

      We have conducted an independent review of the record, and we

agree that this appeal is wholly frivolous as there are no non-frivolous issues

preserved for purposes of appeal.        Accordingly, we permit counsel to

withdraw and affirm the judgment of sentence.

      Petition of Jena Piazza Braunsberg, Esquire, to withdraw as counsel is

granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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