J-S65036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEE DAVID ANTONIK                          :
                                               :
                       Appellant               :   No. 1036 MDA 2019

        Appeal from the Judgment of Sentence Entered January 30, 2019
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0003230-2016

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEE DAVID ANTONIK                          :
                                               :
                       Appellant               :   No. 1037 MDA 2019

        Appeal from the Judgment of Sentence Entered January 30, 2019
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0000004-2018


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED JANUARY 06, 2020

        Appellant, Lee David Antonik, appeals from the aggregate judgment of

sentence of 27 to 54 months of confinement, which was imposed after he




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S65036-19



pleaded guilty to unauthorized use of automobiles and other vehicles1 at

Docket Number CP-40-CR-0003230-2016 and to manufacture, delivery, or

possession with intent to manufacture or deliver a controlled substance

(“PWID”)2 at Docket Number CP-40-CR-0000004-2018.            With this appeal,

appellate counsel has filed a petition to withdraw and an Anders3 brief, stating

that the appeal is wholly frivolous. After careful review, we affirm and grant

counsel’s petition to withdraw.

        In 2018, Appellant pleaded guilty to the aforementioned charges. In

exchange, the Commonwealth withdrew charges of receiving stolen property,

criminal use of communication facility, knowingly or intentionally possessing

a controlled or counterfeit substance by a person not registered, use of or

possession with intent to use drug paraphernalia, and an additional count of

PWID.4

        On January 30, 2019, the trial court sentenced Appellant to nine to

eighteen months of confinement for unauthorized use of automobiles and

other vehicles and to 18 to 36 months of confinement for PWID.              The

sentences are to be served consecutively, for an aggregate judgment of

____________________________________________


1   18 Pa.C.S. § 3928(a).
2   35 P.S. § 780-113(a)(30).
3   Anders v. California, 386 U.S. 738 (1967).
4 18 Pa.C.S. §§ 3925(a), 7512(a) and 35 P.S. § 780-113(a)(16), (32), and
(30), respectively.



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sentence of 27 to 54 months of confinement.5 Appellant’s prior record score

was “5,” and his sentences were within the standard range of the sentencing

guidelines. Trial Court Opinion, filed August 8, 2019, at 1.

       On February 4, 2019, Appellant filed a motion to modify sentence, which

was denied on May 28, 2019. On June 24, 2019, Appellant filed a timely direct

appeal at each docket numbers; this Court later consolidated both appeals.6

       On September 24, 2019, appellate counsel filed an Anders Brief, in

which he presented the following issue:

       Whether the trial court abused its discretion when imposing a
       sentence, on each count, at the highest end of the standard range
       of the sentencing guidelines and running each sentence
       consecutive to one another?

Anders Brief at 3. That same day, appellate counsel sent a letter to Appellant,

informing Appellant that he intended to file a petition for leave to withdraw,

and he filed his petition to withdraw. Letter from Robert M. Buttner, Esquire,

to Lee Antonik (September 24, 2019); Application to Withdraw as Counsel,

9/24/2019. Appellant has not filed a pro se response to that petition.

       On October 24, 2019, the Commonwealth sent a letter to this Court

stating that it did not intend to file a responsive brief.        Letter from



____________________________________________


5 Appellant “received credit for 367 days of incarceration served prior to
sentencing.” Trial Court Opinion, filed August 8, 2019, at 1.
6Appellant filed his statements of errors complained of on appeal on July 15,
2019. Both statements of errors raised identical issues. The trial court
entered its opinion on August 8, 2019.

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Gerry D. Scott, Assistant District Attorney, to Jennifer Traxler, Esquire,

Deputy Prothonotary (October 24, 2019).

      “[W]hen 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. Blauser, 166 A.3d 428, 431 (Pa. Super.

2017). An Anders brief shall comply with the requirements set forth by the

Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d

349, 361 (Pa. 2009):

      [W]e hold that in 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.

Counsel seeking to withdraw on direct appeal must also meet the following

obligations to his or her client:

      Counsel . . . must provide a copy of the Anders brief to his client.
      Attending the brief must be a letter that advises the client of his
      right to: (1) retain new counsel to pursue 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. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017)

(citations and internal brackets and quotation marks omitted).   “Once counsel

has satisfied the above requirements, it is then this Court’s duty to conduct



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its own review of the trial court’s proceedings and render an independent

judgment      as   to   whether   the   appeal   is,   in   fact,   wholly   frivolous.”

Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en

banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.

2004)). Finally, “[w]e must also ‘conduct an independent review of the record

to discern if there are any additional, non-frivolous issues overlooked by

counsel.’”    In re J.D.H., 171 A.3d 903, 908 (Pa. Super. 2017) (quoting

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote omitted)).

      In this appeal, we observe that appellate counsel’s September 24, 2019,

correspondence to Appellant provided a copy of the Anders brief to Appellant

and advised Appellant of his right either to retain new counsel or to proceed

pro se on appeal to raise any points he deems worthy of the court’s attention.

Further, appellate counsel’s Anders Brief, at 3-6, complies with prevailing law

in that counsel has provided a procedural and factual summary of the case

with references to the record.          Appellate counsel additionally advances

relevant portions of the record that arguably support Appellant’s claims on

appeal.      Id. at 10.   Ultimately, appellate counsel cites his reasons and

conclusion that Appellant’s “appeal is wholly frivolous[.]” Id. at 13. Counsel’s

Anders brief and procedures therefore comply with the requirements of

Santiago and Schmidt.         We thereby proceed to conduct an independent

review to ascertain whether the appeal is indeed wholly frivolous.


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      Appellant challenges the discretionary aspects of his sentence. Anders

Brief at 9.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, w]e 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. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted), reargument denied (July 7,

2018). In the current case, Appellant filed a timely notice of appeal, preserved

his issue in a post-sentence motion, and included a statement in his brief

pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). Anders Brief at

7-9. The final requirement, whether the question raised by Appellant is a

substantial question meriting our discretionary review, “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.” Manivannan, 186 A.3d at 489 (quotation marks and some citations

omitted).




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      In his Rule 2119(f) Statement, Appellant contends that the trial court

abused its discretion by sentencing him “at the highest end of the standard

range of the sentencing guidelines” for both charges and by ordering his

sentences to run consecutively. Anders Brief at 8. Appellant additionally

argues that the trial court made incorrect findings about mitigating evidence.

Id. at 9.

      Whether a challenge to consecutive sentences within the guideline

ranges raises a substantial question was recently discussed by this Court in

Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa. Super. 2018):

      As we explained in [Commonwealth v.] Dodge[, 77 A. 3d 1263
      (Pa. Super. 2013)]:

            A defendant may raise a substantial question where
            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. See [Commonwealth v.]
            Moury, 992 A.2d [162,] 171–72 [(Pa. Super. 2010)]
            (“The imposition of consecutive, rather than
            concurrent, sentences may raise 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.”).

      Dodge, 77 A.3d at 1270 (emphasis added). Thus, under Dodge,
      a claim that a sentence is excessive due to it[s] consecutive nature
      generally does not raise a substantial question for purposes of
      Section 9781(b) of the Sentencing Code. Nonetheless, in Dodge,
      this Court held that the defendant raised a substantial question
      when he claimed that his aggregate sentence of 40 years and 7
      months to 81 years and 2 months of incarceration was excessive
      based on the criminal conduct in which he engaged. Id. at 1273.

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An en banc panel of this Court had previously considered the question of

whether a trial court’s decision to impose sentences consecutively can raise a

substantial question in Commonwealth v. Caldwell, 117 A.3d 763 (Pa.

Super. 2015) (en banc):

      A court’s exercise of discretion in imposing a sentence
      concurrently or consecutively does not ordinarily raise a
      substantial question. 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.

Id. at 769 (citations and internal quotation marks omitted).

      Unlike the circumstances discussed in Radecki, 180 A.3d at 469, and

Caldwell, 117 A.3d at 769, Appellant’s Rule 2119(f) Statement does not claim

that the length of his aggregate sentence was excessive or unduly harsh in

light of his criminal conduct nor that the trial court’s application of the

guidelines was somehow unreasonable.            See Anders Brief at 7-9.

Accordingly, Appellant’s assertion that the trial court abused its discretion by

sentencing him “at the highest end of the standard range of the sentencing

guidelines” for both charges and by ordering his sentences to run

consecutively does not raise a substantial question. Id. at 8.

      As for Appellant’s insistence that the trial court failed to consider

mitigating evidence properly, id. at 9, we note that “[a]n allegation that the

sentencing court failed to consider certain mitigating factors generally does

not necessarily raise a substantial question.” Commonwealth v. Moury, 992


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A.2d 162, 171 (Pa. Super. 2010) (citing Commonwealth v. Wellor, 731 A.2d

152, 155 (Pa. Super. 1999) (reiterating allegation that sentencing court “failed

to consider” or “did not adequately consider” certain factors generally does

not raise substantial question)). A rare example where this Court found an

allegation that a trial court failed to give adequate consideration to mitigating

circumstances to raise a substantial question was Commonwealth v.

Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc), where the

sentencing court also sentenced in the aggravated range of the sentencing

guidelines, which is not the case in the current appeal.       For this reason,

Appellant’s allegations in his Rule 2119(f) Statement concerning mitigating

evidence do not raise a substantial question, either.

      Consequently, none of Appellant’s arguments in his Rule 2119(f)

Statement raise a substantial question, and, ergo, he has not preserved his

challenge to the discretionary aspects of sentencing. Hence, pursuant to our

own independent judgment, we find Appellant’s sole appellate claim to be

frivolous. Goodwin, 928 A.2d at 291. In addition, we have reviewed the

certified record consistent with J.D.H., 171 A.3d at 908, and Flowers, 113

A.3d at 1250, and have discovered no additional arguably meritorious issues.

Therefore, we grant appellate counsel’s petition to withdraw and affirm the

trial court’s judgment of sentence.

      Judgment of sentence affirmed.         Petition to withdraw as counsel

granted.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/06/2020




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