J-S13018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RICHARD WILLIAM BAKER

                            Appellant                  No. 704 WDA 2015


          Appeal from the Judgment of Sentence entered April 2, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at Nos: CP-25-CR-0001097-2013


BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 13, 2016

        Appellant, Richard William Baker, appeals from the judgment of

sentence the Court of Common Pleas of Erie County entered April 2, 2015.

In the brief filed by his counsel in accordance with Anders v. California,

386 U.S. 938 (1969), as refined by Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009), Appellant contends his sentence is manifestly excessive.

Specifically, Appellant argues the sentencing court failed to consider

mitigating factors in fashioning his sentence. His counsel concurrently filed a

petition for leave to withdraw. For the reasons explained below, we affirm

Appellant’s judgment of sentence and grant counsel’s petition for leave to

withdraw.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      The relevant background of the case can be summarized as follows:

On September 10, 2013, Appellant pled no contest to one charge of

possession with intent of deliver a controlled substance. Subsequently, the

trial court sentenced him to a term of imprisonment of 4 to 12 months,

followed by a 20-month term of probation. A parole revocation hearing was

held on October 8, 2014, at which time the trial court sentenced Appellant to

the same imprisonment term originally imposed (4 to 12 months), with

credit for time served (154 days).     Appellant was released on parole on

October 13, 2014.    On April 2, 2015, following another violation, the trial

court held a parole hearing. At the conclusion of the hearing, the trial court

reimposed the term of 4 to 12 months’ incarceration, crediting him for time

served, and finally discharged him from this term of the sentence.

Regarding the probation, the trial court revoked his probation, and

sentenced him to 10 to 20 months’ incarceration in the county jail.

Appellant timely moved for reconsideration of sentence, which the trial court

denied. This appeal followed.

      On appeal, Appellant argues the sentence imposed is manifestly

excessive.   To this end, Appellant argues the sentencing court abused its

discretion in fashioning his sentence because it failed to account for some

mitigating circumstances.    Specifically, Appellant argues the sentencing

court did not account adequately that he has a career as mechanic, that he

maintains a job in order to pay his support obligations, that he is the father




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of one son with whom he maintains a close relationship, and that his prior

record score was zero. Appellant’s Brief at 7-8.

       We must address the request to withdraw before reviewing the merits

of Appellant’s issue.      Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.

Super. 2005). As this Court recognized in Commonwealth v. Cartrette,

83 A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in Santiago

did not change the procedural requirements for requesting withdrawal from

representation.

       Counsel must: 1) petition the court for leave to withdraw stating
       that, after making a conscientious examination of the record,
       counsel has determined that the appeal would be frivolous;
       2) furnish a copy of the brief to the defendant; and 3) advise the
       defendant that he or she has the right to retain private counsel
       or raise additional arguments that the defendant deems worthy
       of the court’s attention.

Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.

Super. 2009)).

       We conclude counsel has satisfied the procedural requirements set

forth in Anders.1         In the petition to withdraw, counsel explains her

conclusion, based on a review of the case, that there are no meritorious


____________________________________________


1
  Although in her petition to withdraw, counsel stated that she was filing an
Anders/McClendon brief, the brief filed with this Court appropriately refers
to Santiago, requiring that counsel state the reasons for concluding the
appeal is frivolous, rather than comply with the standard set forth in
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), abrogated by
Santiago.



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issues to be raised on Appellant’s behalf and that proceeding with the case

would be frivolous.   In addition, counsel furnished a copy of the appellate

brief to Appellant and advised Appellant of his right to retain new counsel or

act on his own behalf to raise additional arguments or points for this Court’s

consideration.

      Having concluded counsel satisfied the procedural requirements of

Anders, we must ascertain whether the brief satisfied the substantive

mandates prescribed in Santiago.        In Santiago, our Supreme Court

announced:

      [I]n the Anders brief that accompanies court-appointed
      counsel’s petition to withdraw, 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. 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.

      In the Anders brief, counsel has included a statement of the case that

includes a procedural history of the case.    Counsel has satisfied the first

requirement.

      The second required element of an Anders brief is reference to

anything in the record that counsel believes arguably supports the appeal.

Here, counsel suggests that the trial court failed to account for mitigating




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circumstances.      Counsel, therefore, has satisfied the second Anders

requirement.

      Counsel also has satisfied the third element of Anders, stating her

conclusion that the appeal is frivolous. Id. at 8-9. Finally, counsel provided

her reasons for concluding the appeal is frivolous. Id. at 9. Thus, counsel

has satisfied the fourth and final element of the Anders test.

      Having determined the procedural and substantive requirements of

Anders are satisfied, we must conduct our own independent review of the

record to determine if the issue identified in this appeal is, as counsel

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

in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)

(“[T]he court—not counsel—then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds, it

may grant counsel’s request to withdraw.”).

      As noted above, Appellant argues the trial court abused its discretion

by imposing a manifestly excessive sentence. Specifically, Appellant argues

the trial court failed to account for mitigating circumstances.    Appellant’s

Brief at 7-8.    As such, Appellant presents a challenge to the discretionary

aspects of his sentence. See Commonwealth v. Hyland, 875 A.2d 1175,

1182-83 (Pa. Super. 2005).

      In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this

Court reiterated:


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       Appellant is not entitled as of right to a review of such a
       challenge. Our jurisdiction over a claim regarding the
       discretionary aspects of sentence must be established as follows:

          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. § 9781(b).

Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super.    2010)    (internal    quotation      marks,   citations   and   modifications

omitted)).

       A review of the record reveals that Appellant has satisfied the first

three elements of the test.         We now turn to the fourth element, whether

there is a substantial question under 42 Pa.C.S.A. § 9781(b) that the

sentence appealed from is not appropriate.2

       Generally, a bald claim of excessiveness based on inadequate

consideration of mitigating factors fails to raise a substantial question. See,

e.g., Commonwealth v Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

Here, it is no different. Appellant’s claim amounts to no more than a bald
____________________________________________


2
  “A substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process.” Commonwealth v. Johnson, G., 873 A.2d 704, 708 (Pa. Super.
2005).




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allegation of abuse of discretion.     Additionally, we have held “[t]hat the

court[’s] refus[al] to weigh the proposed mitigating factors as Appellant

wished, absent more, does not raise a substantial question.”      Moury, 992

A.2d at 175 (citations omitted).       Appellant, therefore, failed to raise a

substantial question for our review.

      Additionally, a review of the revocation/sentencing hearing transcript

reveals that the sentencing court was fully aware of the mitigating

circumstances named above. In essence, Appellant is asking this Court to

substitute its judgment for that of the sentencing court by reweighing these

mitigating circumstances in a light more favorable to him. We cannot do so.

See, e.g., Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super.

1999), appeal denied, 790 A.2d 1013 (Pa. 2001) (“[W]hen reviewing

sentencing matters, we must accord the sentencing court great weight as it

is in the best position to view the defendant’s character, displays of remorse,

defiance or indifference, and the overall effect and nature of the crime.”)

(citation omitted).

      In summary, we agree with counsel that any challenge to the trial

court’s sentence is frivolous. Our independent review of the record does not

reveal any non-frivolous arguments available to Appellant.       We therefore

affirm the judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Counsel’s petition for leave to

withdraw is granted.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016




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