J-S81016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDDIE LEE CLARK, JR.                       :
                                               :
                       Appellant               :   No. 1589 MDA 2018

         Appeal from the Judgment of Sentence Entered August 9, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0005979-2017


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

MEMORANDUM BY DUBOW, J.:                                  FILED MAY 13, 2019

        Appellant Eddie Lee Clark, Jr., appeals from the Judgment of Sentence

imposed after he entered an open guilty plea to one count of Aggravated

Cruelty to Animal.1       Appellant challenges the discretionary aspects of his

sentence.     With this appeal, Appellant’s counsel has filed a Petition to

Withdraw and an Anders2 brief. We affirm the Judgment of Sentence and

grant counsel’s Petition to Withdraw.

        On August 9, 2018, Appellant entered an open guilty plea to one count

of Aggravated Cruelty to Animal. The court sentenced Appellant within the

sentencing guidelines to 12 months to 36 months’ of incarceration. Trial Ct.




____________________________________________


1   18 Pa.C.S. § 5534(a)(2).

2   Anders v. California, 386 U.S. 738 (1967).
____________________________________
* Former Justice specially assigned to the Superior Court.
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Op., dated 9/28/18, at 2. On August 17, 2018, Appellant filed a Post-Sentence

Motion to Modify Sentence, which the Court denied on August 20, 2018.

      This timely appeal followed. Appellant and the trial court complied with

Pa.R.A.P. 1925.     Appellant’s counsel has filed both an Anders Brief and a

Petition to Withdraw as Counsel. Appellant has not filed a response.

      As a preliminary matter, we address counsel’s Petition to Withdraw.

“When presented with an Anders Brief, this Court may not review the merits

of   the    underlying   issues   without   first   passing   on   the   request   to

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). In order for counsel to withdraw from an appeal

pursuant to Anders, our Supreme Court has determined that counsel must

meet the following requirements:

      (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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Counsel has complied with the mandated procedure for withdrawing as

counsel.     Additionally, counsel confirms that he sent Appellant a copy of


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the Anders Brief and petition to withdraw, as well as a letter explaining to

Appellant that he has the right to retain new counsel, proceed pro se, or to

raise any additional points. See Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa. Super. 2005) (describing notice requirements).

      Because counsel has satisfied the above requirements, we now have the

responsibility to “make a full examination of the proceedings and make an

independent    judgment as      to   whether    the   appeal   is in   fact   wholly

frivolous.”   Santiago,   978    A.2d    at    354-55   n.5    (citation   omitted);

see Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (noting Anders requires the reviewing court to “review ‘the case’ as

presented in the entire record with consideration first of issues raised by

counsel”).

      We first address the issue raised by counsel in the Anders Brief:

      Whether the trial court erred in failing to sentence Appellant in the
      mitigated range of the sentencing guidelines based upon his true
      expression of remorse and his work to improve himself while in
      the Berks County Jail System?

Anders Brief at 5.

      Appellant challenges the discretionary aspects of his sentence,

contending that the trial court abused its discretion in failing to sentence him

in the mitigated range of the sentencing guidelines. See Anders Brief at 13-

18.

      A challenge to the discretionary aspects of sentencing is not

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

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768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue, we must determine: (1) whether appellant has

filed a timely notice of appeal; (2) whether the issue was properly preserved

at sentencing or in a motion to reconsider and modify sentence; (3) whether

appellant’s brief has a fatal defect; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

      In the instant case, Appellant met the first three elements by filing a

timely Notice of Appeal, properly preserving the issue in a Post-Sentence

Motion to modify his sentence, and including a Statement of Reasons Relied

Upon for Allowance of Appeal pursuant to Pa.R.A.P. 2119(f). Thus, we proceed

to address whether Appellant’s sentencing challenge raises a substantial

question for our review.

      Whether a substantial question has been raised regarding discretionary

sentencing is determined on a case-by-case basis.        Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “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. (citation and quotation omitted).




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      Appellant asserts that the trial court abused its discretion by failing to

mitigate his sentence based on his true expression of remorse and the positive

measures he had taken during his incarceration in Berks County Jail. Anders

Brief at 13-18.

      Sentencing is a matter vested in the sound discretion of the sentencing

court, and a sentence will not be disturbed on appeal without a manifest abuse

of that discretion. Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.

Super. 2003). To constitute an abuse of discretion, the sentence must either

exceed the statutory limits or be manifestly excessive; it is not shown merely

by an error in judgment by the court. Id.          Rather, the appellant must

demonstrate, 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.

      Claims that the sentencing court did not adequately consider mitigating

factors generally do not raise a substantial question. See Commonwealth

v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). Additionally, we have held

that the court’s refusal to weigh mitigating factors as an appellant wished,

absent more, does not raise a substantial question. Moury, 992 A.2d 162,

175; see also Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super.

2014) (“[W]e have held that a claim that a court did not weigh the factors as

an appellant wishes does not raise a substantial question”).




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      Appellant’s claim amounts to no more than a bald allegation that the

court abused its discretion in failing to consider mitigating factors as he

wished. The trial court considered the Appellant’s presentence investigation

report, nature of the offense, sentencing guidelines, and Appellant’s written

and oral colloquies, which discussed mitigating factors. N.T. 8/9/18 at 7-15.

Additionally, the court sentenced Appellant within the standard range of the

sentencing guidelines. Id.; Trial Ct. Op. at 2. Pursuant to the above case

law, Appellant has failed to raise a substantial question.

      Additionally, our independent review of the record does not reveal any

non-frivolous arguments available to Appellant.         We, therefore, affirm

Appellant’s Judgment of Sentence and grant counsel’s Petition to Withdraw.

      Judgment of Sentence affirmed.       Counsel’s Petition to Withdraw as

Counsel granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/13/2019




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