J-S27034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EFRAIN DONES,
Appellant No. 1687 MDA 2015
Appeal from the Judgment of Sentence August 26, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000446-2015
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 06, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Lackawanna County following Appellant’s open guilty
plea to the charge of carrying a firearm without a license, 18 Pa.C.S.A. §
6106(a)(1). In addition to this appeal, Appellant’s counsel has filed a
petition to withdraw her representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 602
Pa. 159, 978 A.2d 349 (2009). After a careful review, we grant counsel’s
petition to withdraw and affirm Appellant’s judgment of sentence.
The relevant facts and procedural history are as follows: On May 28,
2015, Appellant, who was represented by the Public Defender’s Office,
appeared before the Honorable Vito P. Geroulo and pled guilty to the sole
charge indicated supra. At the guilty plea hearing, Appellant admitted that,
*Former Justice specially assigned to the Superior Court.
J-S27034-16
on March 1, 2015, he was carrying a .22-caliber revolver without the
appropriate license to do so. N.T. guilty plea, 5/28/15, at 4.
On August 26, 2015, Appellant proceeded to a sentencing hearing, at
the conclusion of which Judge Geroulo sentenced Appellant to three years to
seven years in prison. On August 28, 2015, Appellant filed a timely,
counseled motion for reconsideration of his sentence in which he challenged
the discretionary aspects of his sentence. The trial court denied the post-
sentence motion, and Appellant filed a timely, counseled notice of appeal.
All Pa.R.A.P. 1925 requirements have been met. On December 29, 2015,
counsel filed an application to withdraw her representation, as well as a brief
pursuant to Anders and Santiago.
“When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super.
2005). Before counsel is permitted to withdraw, he or she must meet
certain mandates, which have been summarized as follows:
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof. Commonwealth v. Smith, 700 A.2d 1301, 1303
(Pa.Super. 1997). A proper Anders brief does not explain why
the issues are frivolous and does not develop arguments against
the appellant's interests. Smith, 700 A.2d at 1304. Rather, the
brief articulates the issues in neutral form, cites relevant legal
authorities, references appropriate portions in the record to aid
-2-
J-S27034-16
our review, and concludes that, after a thorough review of the
record, the appeal is wholly frivolous. Id. at 1303–05.
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court's attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate's brief on Appellant's behalf). See Smith, 700 A.2d at
1303–05. By contrast, if counsel's petition and brief satisfy
Anders, we will then undertake our own review of the appeal to
determine if it is wholly frivolous. If the appeal is frivolous, we
will grant the withdrawal petition and affirm the judgment of
sentence. However, if there are non-frivolous issues, we will
deny the petition and remand for the filing of an advocate's
brief.
In Commonwealth v. Nischan, 928 A.2d 349[, 353]
(Pa.Super. 2007), we similarly stated:
Consequently, what counsel must do in an Anders
brief is: (1) set forth in a neutral fashion the issues
that the appellant wants to raise; (2) cite for this
Court relevant legal authorities such as leading
cases, statutes, and/or rules that deal with those
issues; (3) make reference to the appropriate
portions of the record so that this Court can locate
the facts pertinent to the claims; and (4) aver that,
after a thorough review of the record, the appeal is
frivolous.
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.Super. 2007) (citations
and quotations omitted).
In the instant case, our review of counsel’s petition to withdraw,
correspondence advising Appellant of his right to proceed pro se or with
-3-
J-S27034-16
privately-retained counsel,1 and the Anders brief satisfies us that counsel
has complied with all of the foregoing requirements. We, therefore, turn to
the issues presented in counsel’s Anders brief to make an independent
judgment as to whether the appeal is, in fact, wholly frivolous. Santiago,
supra.
Appellate counsel has presented two issues in her Anders brief, both
of which challenge the discretionary aspects of Appellant’s sentence.
Specifically, she presents the following issues:
1. Whether the sentence imposed was inappropriately harsh and
excessive and an abuse of discretion?
2. Whether the lower court failed to consider that the Appellant
is a product of particular circumstances and conditions of
environment, but that these matters were not fully and
completely expressed at the time of sentencing?
Anders Brief at 4.
The claims presented raise a challenge to the discretionary aspects of
Appellant’s sentence, which must be considered a petition for permission to
appeal. Commonwealth v. McAfee, 849 A.2d 270 (Pa.Super. 2004).
To reach the merits of a discretionary sentencing issue, we
must conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
(2) whether the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence, 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
____________________________________________
1
Appellant has filed neither a pro se brief nor a privately-counseled brief.
-4-
J-S27034-16
sentence appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super. 2007) (citation
omitted).
Here, Appellant filed a timely notice of appeal and adequately
preserved his claims in his post-sentence motion. Moreover, the Anders
brief includes a Rule 2119(f) statement. Additionally, assuming, arguendo,
the claims presented raise a substantial question, thus permitting our
review, we find the claims to be meritless.
At the sentencing hearing, the trial court acknowledged it reviewed the
pre-sentence investigation report, reviewed additional records from the
prison to understand fully Appellant’s background, considered Appellant’s
rehabilitative needs, and indicated it was aware of the applicable sentencing
guidelines. N.T. sentencing, 8/26/15, at 2, 12-13. Defense counsel
informed the trial court that Appellant’s “path” changed when he was shot at
the young age of thirteen and, from that point forward, he became addicted
to illegal substances. Id. at 2. Defense counsel advised the trial court that
Appellant had been furloughed to Pyramid, where he completed the
program, and he was participating in an intense outpatient program. Id. at
4. Moreover, defense counsel informed the trial court that Appellant had
recently received his high school diploma, was employed, and was accepted
into college. Id. at 3-4. Defense counsel indicated Appellant has “really
-5-
J-S27034-16
transformed from a kid into somebody who’s ready to be an adult. Not just
an adult, but a productive adult.” Id.
Furthermore, Appellant made a statement to the trial court, in which
he apologized for his actions, informed the court he was abused as a child by
his father, and advised the court he was ready to put his past criminal
actions behind him. Id. at 5-6.
The trial court noted it considered Appellant’s youthful age, past
criminal history, and current criminal offense, including the fact that “but for
the adult who was in charge of the house [where] he was staying at who
gave permission for the search, [Appellant] probably would not have been
found with that gun.” Id. at 12. The trial court indicated that, after
consideration of all information, it was imposing a sentence in the mitigated
range. Id. at 13.
Furthermore, in explaining the reasons for the sentence, the trial court
indicated in its Rule 1925(a) opinion, in relevant part, the following:
Contrary to [Appellant’s] assertions, [Appellant’s] sentence
here falls within the mitigated range of the sentencing guidelines
and is not harsh, excessive or an abuse of discretion. The court
did explain its reasons for the sentence, including that
[Appellant] has a record going back to 2010 and has not been
amenable to rehabilitation, [Appellant] had seven write-ups at
the prison when serving his last sentence, and [Appellant]
committed the crime here less than six months after being
released from prison.
***
[Appellant] also asserts that the court failed to take into
consideration that he is a product of particular circumstances
and an environment not fully expressed at the time of
sentencing. . . .Th[e] court considered everything in
-6-
J-S27034-16
[Appellant’s] pre-sentence investigative file. The court also
ordered and reviewed records from the prison where [Appellant]
had served his last sentence. The court considered all of this
information and weighed it against the mitigating factors in
sentencing [Appellant] in the mitigated range.
Trial Court Opinion, filed 11/5/15, at 3-4.
Inasmuch as the trial court had the benefit of a pre-sentence
investigation report, fully and adequately set forth the reasons for its
sentence, and fulfilled the requirements of 42 Pa.C.S.A. § 9721(b),2 we
conclude the trial court did not abuse its discretion in sentencing Appellant.
See Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa.Super. 2010)
(“Sentencing is vested in the discretion of the trial court and will not be
disturbed absent a manifest abuse of that discretion.”) (citation omitted).
We note that Appellant had the opportunity to express the fact he was “a
product of [his] particular circumstances and conditions of [his]
environment,” Anders Brief at 4, and the trial court indicated it considered
such factors in sentencing Appellant.
After an independent review of the appeal, we find Appellant’s
challenges to the discretionary aspects of his sentence to be frivolous, and
we grant counsel’s petition to withdraw.
____________________________________________
2
In fashioning a defendant’s sentence, the court must “follow the general
principle 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).
-7-
J-S27034-16
Petition to Withdraw Granted. Judgment of Sentence Affirmed.
Judge Dubow joins the memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2016
-8-