J-S10042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMY ABEL,
Appellant No. 2340 EDA 2015
Appeal from the Judgment of Sentence September 6, 2013
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0002373-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 08, 2016
Appellant, Jeremy Abel, appeals nunc pro tunc from the judgment of
sentence imposed following his conviction of two counts of involuntary
deviate sexual intercourse with a child (IDSI),1 and one count of rape of a
child.2 Appellant’s counsel has filed a brief and a petition to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the
appeal is wholly frivolous. We affirm the judgment of sentence and grant
counsel’s request to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3123(b).
2
18 Pa.C.S.A. § 3121(c).
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After Pottstown Police arrested him on March 5, 2012, Appellant
confessed to numerous sexual offenses with his niece and nephew, while he
was babysitting for his sister. The crimes occurred in 2011, when the
children were seven and four years old, respectively. The crimes included
anal and oral rape of the children.
On February 4, 2013, after a written and oral colloquy, Appellant
proceeded to a stipulated bench trial at which the trial court judge found him
guilty of the three offenses noted. On September 6, 2013, after testimony
and a written report from Sexual Offenders Assessment Board (SOAB)
expert Dr. Jennifer Hahn, the court found Appellant to be a sexually violent
predator. On the same day the court sentenced him to three concurrent
terms of not less than twenty nor more than forty years’ incarceration. The
court had the benefit of a pre-sentence investigation report. (See Trial
Court Opinion, 10/06/15, at 4). Appellant did not file a post-sentence
motion or a direct appeal.
After Appellant filed a pro se motion for post-conviction collateral relief
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, on
September 24, 2014, the PCRA court reinstated his direct appeal rights.
(See Order, 7/29/15). This nunc pro tunc appeal followed.3
____________________________________________
3
Newly appointed counsel complied with the trial court’s directive to file a
concise statement of errors on Appellant’s behalf. (See Statement,
9/14/15); see also Pa.R.A.P. 1925(b).
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On November 17, 2015 counsel filed a petition for leave to withdraw
from further representation. Counsel contemporaneously filed an Anders
brief. Appellant has not responded to the petition to withdraw.
When we receive an Anders brief, we first rule on the petition to
withdraw and then review the merits of the underlying issues. See
Commonwealth v. Garang, 9 A.3d 237, 240–41 (Pa. Super. 2010). In
addition, “[p]art and parcel of Anders is our Court’s duty to review the
record to insure no issues of arguable merit have been missed or misstated.”
Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).
Appellant’s counsel has petitioned for permission to withdraw and has
submitted an Anders brief, which is procedurally proper for counsel seeking
to withdraw on direct appeal. See Anders, supra at 744. Court-appointed
counsel who seeks to withdraw from representing an appellant on direct
appeal on the basis that the appeal is frivolous 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 or statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, supra at 361.
In the instant matter, counsel has substantially complied with all the
requirements of Anders and Santiago. Specifically, he has petitioned this
Court to withdraw after concluding that an appeal to this Court would be
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“wholly frivolous.” (Petition for Leave to Withdraw as Appellant’s Counsel,
11/17/15, at 1).
In addition, after his review of the record, counsel filed a brief with this
Court that provides a summary of the procedural history and facts with
citations to the record, refers to any facts or legal theories that arguably
support the appeal, and explains why he believes the appeal is frivolous.
(See Anders Brief, at 2-14). Finally, he has attached, as an exhibit to his
petition to withdraw, a copy of the letter he sent to Appellant giving notice of
his rights, and including a copy of the Anders brief and the petition. (See
Petition, at 1-2); see also Commonwealth v. Millisock, 873 A.2d 748,
749 (Pa. Super. 2005).
Because counsel has substantially complied with the requirements of
Anders, Santiago, and Millisock, we will examine the issues set forth in
the Anders brief that counsel believes could have arguable merit. See
Garang, supra at 240–41.
Here, the sole question raised in the Anders Brief is whether the trial
court abused its discretion by imposing a harsh and excessive sentence
under the circumstances. (See Anders Brief, at 1).4 This issue challenges
the discretionary aspects of Appellant’s sentence. (See id. at 9-13).
____________________________________________
4
The Commonwealth did not file a brief in this case; instead it filed a letter
of agreement with counsel’s Anders brief. (See Letter of Deputy District
Attorney to Deputy Prothonotary of Pennsylvania Superior Court, 11/20/15).
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Sentencing is a matter vested in the sound discretion of
the trial court and will not be disturbed on appeal absent an
abuse of discretion. In imposing a sentence, the trial judge may
determine whether, given the facts of a particular case, a
sentence should run consecutive to or concurrent with another
sentence being imposed.
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citations
omitted).
Additionally, the right to appeal the discretionary aspects of a sentence
is not absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant
challenges the discretionary aspects of the sentence imposed, he must
present “a substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). Pursuant to Pennsylvania Rule of Appellate Procedure
2119(f), an appellant must articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted).
Here, counsel has not included a Rule 2119(f) statement in the
Anders brief. Nevertheless, in light of counsel’s petition to withdraw, we
will address the claim. See Lilley, supra at 998 (citing Commonwealth v.
Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) (concluding that Anders
requires review of issues otherwise waived on appeal)).
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Here, we discern no basis to disagree with counsel’s conclusion that
the trial court properly exercised its discretion in sentencing Appellant. (See
Anders brief, at 9-10).
The sentencing court had the benefit of a PSI. “Where pre-sentence
reports exist, we shall . . . presume that the sentencing judge was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. A pre-sentence
report constitutes the record and speaks for itself.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014), appeal denied, 95 A.3d
275 (Pa. 2014) (citation omitted).
The sentencing court chose to impose the three sentences
concurrently rather than consecutively, which it had the prerogative to do.
See Lilley, supra at 998. The sentence was within the standard range of
the Sentencing Guidelines. (See Trial Ct. Op., at 4).
Appellant is a sexually violent predator, with a diagnosis of pedophilia,
who took advantage of his position of trust as an uncle to engage in
predatory sexual offenses against his niece and nephew. Dr. Hahn, the
SOAB expert, testified that Appellant’s likelihood of reoffending is supported
by the multiple victims involved in these crimes, and by his history of having
committed a similar offense previously as a juvenile against another four
year-old boy. (See N.T. SVP/Sentencing, 9/06/13, at 11, 13). The
sentencing court noted that probation was clearly inappropriate, and a lesser
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sentence would depreciate the seriousness of the crimes. (See id. at 50).
We discern no basis to disturb the court’s sentence.
Appellant’s issue does not merit relief. Furthermore, this Court has
conducted an independent review of the record as required by Anders and
Santiago and concludes that no non-frivolous issues exist.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2016
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