J-S29024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    DONTEZ VALLE                               :
                                               :
                       Appellant               :    No. 3210 EDA 2018

      Appeal from the Judgment of Sentence Entered October 23, 2018,
      In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-CR-0001174-2018


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                   FILED JUNE 04, 2019

       Dontez Valle appeals from the judgment of sentence1 entered in the

Court of Common Pleas of Bucks County.             Counsel has also filed a brief and

petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).

After careful review, we affirm and grant counsel’s petition to withdraw.




____________________________________________


1 Although Valle filed his notice of appeal from the September 24, 2018 order
denying post-sentence motions, the appeal is technically taken from the
judgment of sentence. See Commonwealth v. Chamberlain, 658 A.2d 395
(Pa. Super. 1995) (order denying post-sentence motion acts to finalize
judgment of sentence; thus, appeal is taken from judgment of sentence, not
order denying post-sentence motion). Therefore, we have amended the
caption to reflect that the appeal is from Valle’s October 23, 2018 judgment
of sentence.
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        On April 21, 2018, Valle entered an open guilty plea to one count each

of simple assault2 (M2) and strangulation3 (F2). The charges stemmed from

Valle’s violent attack on his 13-year-old daughter during a public, verbal

altercation. At the time he committed the instant offenses, Valle was on state

parole for an unrelated charge. Valle was sentenced on September 19, 2018,

to 3½ to 10 years’ imprisonment, with credit for time served. On September

19, 2018, Valle filed a motion to reconsider his sentence; the trial court denied

the motion on September 24, 2018. Valle filed a timely notice of appeal and

court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Valle presents the following issue for our review: “Whether the trial

court abused its discretion by imposing an excessive sentence that exceeded

what is necessary to protect the public and to rehabilitate [Valle.]” Appellant’s

Brief, at 5.

        Prior to reviewing Valle’s claim, we must determine if counsel has

complied with the procedural requirements for withdrawal.            In order to

withdraw pursuant to Anders, counsel must: (1) petition the Court for leave

to withdraw, certifying that after a thorough review of the record, counsel has

concluded the issues to be raised are wholly frivolous; (2) file a brief referring

to anything in the record that might arguably support an appeal; and (3)

furnish a copy of the brief to the appellant and advise him of his right to obtain

____________________________________________


2   18 Pa.C.S. § 2701.

3   18 Pa.C.S. § 2718.

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new counsel or file a pro se brief raising any additional points that the

appellant deems worthy of review.              Commonwealth v. Hernandez, 783

A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009), the Pennsylvania Supreme Court held that, in order to

withdraw under Anders, counsel must also state his reasons for concluding

his client’s appeal is frivolous.

       Instantly, counsel’s petition states that she has made an exhaustive

examination of the record and concluded the appeal is wholly frivolous.

Counsel indicates that she supplied Valle with a copy of the Anders brief and

a letter explaining his right to proceed pro se, or with privately-retained

counsel, and to raise any other issues he believes might have merit.4

Counsel’s brief sets out a single issue of arguable merit and, pursuant to the

dictates of Santiago, explains why she believes the appeal to be frivolous.

Thus, counsel       has substantially      complied   with   the   requirements for

withdrawal. Accordingly, we will proceed with our independent review of the

proceedings and render an independent judgment as to whether the appeal

is, in fact, wholly frivolous. Commonwealth v. Wright, 846 A.2d 730, 736

(Pa. Super. 2004).

       In her Anders brief, counsel raises a discretionary aspect of sentence

claim. Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015).
____________________________________________


4Valle did not file a substantive response to counsel’s Anders brief, raising
any issues he believed to be meritorious.



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Challenges to the discretionary aspects of one’s sentence are not appealable

as of right, and in order for this Court to reach the merits of such claims, Valle

first must satisfy a four-part test to determine:

            (1) whether the appeal is timely; (2) whether [he]
            preserved his issue; (3) whether [his] 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 [S]entencing [C]ode.

Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018) (citations

omitted).

      Valle has complied with the first three prongs of the above-stated test:

he has filed a timely appeal; he has preserved his discretionary claim in a

post-sentence motion; and he has included a Pa.R.A.P. 2119(f) concise

statement in his brief. With regard to the fourth prong, we note that:

      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.

Id. (citations omitted).    We also find that Valle has raised a substantial

question to invoke our appellate review. See Commonwealth v. Hill, 2013

PA Super 78 (Pa. Super. 2013).

      Valle claims that the court’s sentence is excessive where he “took

responsibility for his actions by pleading guilty,” Appellant’s Brief, at 14, and

where he only committed the acts because he lacked proper parenting skills.


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      “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.” Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.

2006). Moreover, the sentencing court has broad discretion in choosing the

range of permissible confinement that best suits a particular defendant and

the circumstances surrounding his crime. Commonwealth v. Wall, 846 A.2d

152, 154-55 (Pa. Super. 2004).          The Sentencing Code sets forth the

considerations a trial court must take into account when formulating a

sentence, providing that “the sentence imposed should call for confinement

that is consistent with the protection of the public, the gravity of the offense

as it relates to the impact on the life of the victim and on the community, and

the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).

      Instantly, the sentencing judge acknowledged that he considered the

fact that Valle was trying to make his life better, that he had accepted

responsibility for his criminal actions, and that he had “done well in jail.” N.T.

9/19/17, at 27-29. The judge believed that Valle was sincere and candid and

also noted that he considered the impact Valle’s actions had upon the victim,

his daughter. Id. at 27, 31. The court recognized that Valle “has some anger

issues” and determined that “the most important factor that [the court

needed] to consider [was Valle’s] need for rehabilitation.” Id. To that end,

the court struck a balance between imposing significant time in jail (a below-

the-mitigated-range sentence) and placing Valle in the proper confinement

setting (state prison) so that he could take advantage of the necessary

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rehabilitative programs. 42 Pa.C.S.A. § 9721(b). Under these circumstances,

we do not find that the trial court abused its discretion in sentencing Valle to

3½ to 10 years’ imprisonment. Fullin, supra.

      Order affirmed.   Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/19




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