J-S55031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOHN A. FELICIANO,

                            Appellant                No. 3259 EDA 2015


            Appeal from the Judgment of Sentence October 2, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003298-2014

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JULY 29, 2016

        Appellant appeals from the judgment of sentence entered in the Court

of Common Pleas of Northampton County following the revocation of his

probation. Counsel has filed a petition to withdraw from representation and

a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396

(1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009). We affirm the judgment of sentence and grant counsel’s petition to

withdraw.

        The relevant facts and procedural history are as follows: On December

29, 2014, Appellant pled guilty to theft of a motor vehicle and possession of

a controlled substance.1 The trial court sentenced Appellant to time served

____________________________________________


1
    18 Pa.C.S.A. § 3934(a) and 35 P.S. § 780-113(a)(16), respectively.



*Former Justice specially assigned to the Superior Court.
J-S55031-16



to two months in prison, to be followed by ten months of probation, for theft

of a motor vehicle, and ten months of probation for possession of a

controlled substance. The sentences were to run concurrently.

        On or about June 29, 2015, while he was on probation with regard to

the instant case, Appellant was charged with several offenses in an

unrelated matter, which was docketed in the lower court at CP-48-CR-

0001983-2015. On August 20, 2015, he entered a guilty plea in the

unrelated matter to one count of robbery, 18 Pa.C.S.A. § 3701, and he was

sentenced to fifteen months to thirty-six months in prison.

        With regard to the instant case, due to his conviction at Docket CP-48-

CR-0001983-2015, as well as other technical violations, Appellant, who was

represented by counsel, proceeded to a Gagnon II2 hearing on October 2,

2015.     At the hearing, the trial court determined Appellant was in willful

violation of his probation, and accordingly, the trial court revoked Appellant’s

probation. The trial court then imposed a sentence of six months to twelve

months in prison for theft of a motor vehicle, and six months to twelve

months in prison for possession of a controlled substance.      The sentences

were imposed concurrently to each other, but consecutively to Appellant’s

sentence imposed at Docket CP-48-CR-0001983-2015.




____________________________________________


2
    Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973).



                                           -2-
J-S55031-16



      Appellant filed a timely motion seeking reconsideration of his sentence.

Specifically, he baldly asserted the trial court should have directed that his

sentence for the instant matter be made concurrent to his sentence at

Docket CP-48-CR-0001983-2015.        The trial court denied Appellant’s post-

sentence motion, and this timely appeal followed.     The trial court directed

Appellant to file a Pa.R.A.P. 1925(b) statement, and counsel filed a

statement indicating his intent to file an Anders brief. As indicated supra,

on appeal, counsel has filed a petition to withdraw, as well as a brief

pursuant to Anders.

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

the merits of the issues raised therein without first passing on the request to

withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005).

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 Santiago. 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, 602 Pa. at 178-79, 978 A.2d at 361. Counsel must also provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her right to “(1) retain new counsel to pursue

                                     -3-
J-S55031-16


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.” Commonwealth v. Nischan, 928

A.2d 349, 353 (Pa.Super. 2007).

       Instantly, counsel provided a summary of the history of the case,

referred to anything in the record that counsel believed arguably supports

the appeal, set forth his conclusion that the appeal is frivolous, and stated in

detail his reasons for so concluding.          Moreover, counsel has provided this

Court with a copy of the letter, which counsel sent to Appellant informing

him of his right to retain new counsel, proceed pro se, or raise any points

Appellant deems worthy of this Court’s attention.3        Accordingly, we conclude

counsel has substantially complied with the requirements of Anders and

Santiago. We, therefore, turn to the issue of arguable merit counsel

presented in his Anders brief to make an independent judgment as to

whether the appeal is, in fact, wholly frivolous. Commonwealth v. Bynum-

Hamilton, 135 A.3d 179 (Pa.Super. 2016).

       Appellant challenges the discretionary aspects of his sentence.

Specifically, he avers the trial court should have directed that his sentence in



____________________________________________


3
 We note Appellant has filed neither a pro se brief nor a counseled brief with
new, privately-retained counsel.




                                           -4-
J-S55031-16


the instant matter be made concurrent to his sentence at Docket CP-48-CR-

0001983-2015.

     A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa.Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:

     We conduct a four-part analysis to determine: (1) whether
     appellant has filed a timely notice of appeal, see 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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006) (citations

omitted).

     Here, Appellant filed a timely notice of appeal and a timely post-

sentence motion in which he preserved his discretionary aspect of

sentencing claim.   Counsel did not include a separate Pa.R.A.P. 2119(f)

statement in his Anders brief; however, this Court has held that such a

failure does not preclude review of whether Appellant’s issue is frivolous.

See Bynum-Hamilton, supra.        As to whether Appellant has presented a

substantial question, we note the following:

     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

                                    -5-
J-S55031-16


        (2) contrary to the fundamental norms which underlie the
        sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation,

quotation marks, and quotation omitted).

        With regard to the imposition of consecutive sentences, this Court has

held:

              A court's exercise of discretion in imposing a sentence
        concurrently or consecutively does not ordinarily raise a
        substantial question. Commonwealth v. Mastromarino, 2
        A.3d 581, 587 (Pa.Super. 2010)[.] Rather, the imposition of
        consecutive rather than concurrent sentences will present a
        substantial question in only “the most extreme circumstances,
        such as where the aggregate sentence is unduly harsh,
        considering the nature of the crimes and the length of
        imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365,
        372 (Pa.Super. 2012)[(en banc)].

                   [An appellant] may raise a substantial question
             where [s]he receives consecutive sentences within
             the guideline ranges if the case involves
             circumstances where the application of the guidelines
             would be clearly unreasonable, resulting in an
             excessive sentence; however, a bald claim of
             excessiveness due to the consecutive nature of a
             sentence will not raise a substantial question.

Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa.Super. 2015)

(quotation omitted).    As this Court has emphasized, “the key to resolving

the preliminary substantial question inquiry is whether the decision to

sentence consecutively raises the aggregate sentence to, what appears upon

its fact to be, an excessive level in light of the criminal conduct at issue in

the case.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)

(quotation marks and quotation omitted).


                                     -6-
J-S55031-16


      In the case sub judice, Appellant does not contend that his aggregate

sentence for the instant matter is unduly harsh, given the nature of his

crimes and the length of imprisonment. Rather, Appellant baldly suggests

the trial court's imposition of his current sentence to run consecutively to the

sentence he received at Docket CP-48-CR-0001983-2015 is excessive. We

conclude that Appellant has not presented a substantial question permitting

our review. See Commonwealth v. Pass, 914 A.2d 442, 446 (Pa.Super.

2006) (“The [a]ppellant's claim that the trial court erred in ordering his

sentences imposed on August 9, 2005[,] to run consecutively, instead of

concurrently, to a previously imposed sentence does not raise a substantial

question.”).

      For all of the foregoing reasons, and after an independent review, we

conclude Appellant is not entitled to relief and we grant counsel's petition to

withdraw his representation.

      Judgment of Sentence Affirmed.        Petition to Withdraw as Counsel

Granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2016

                                     -7-
J-S55031-16




              -8-
