Com. v. Affronti, R.

J-S34035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

RYAN JOSEPH AFFRONTI

Appellant No. 1788 MDA 2015

Appeal from the Judgment of Sentence July 7, 2015
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003166-2013

BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MAY 24, 2016

Appellant Ryan Joseph Affronti (“Appellant”) appeals from the July 7,

2015 judgment of sentence entered in the Luzerne County Court of Common

Pleas following his guilty plea convictions for unlawful contact with minors,1

indecent assault,2 furnishing liquor to minors,3 and corruption of minors.4

Appellant’s counsel has filed an Anders5 brief, together with a petition to

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1
18 Pa.C.S. § 6318(a)(5).
2
18 Pa.C.S. § 3126(a)(1).
3
18 Pa.C.S. § 6310.1(a).
4
18 Pa.C.S. § 6301(a)(1)(ii).
5
Anders v. California, 386 U.S. 738 (1967).
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withdraw as counsel. We affirm the judgment of sentence and grant

counsel’s petition to withdraw.

On March 20, 2015, Appellant pleaded guilty to the aforementioned

charges. On July 7, 2015, the trial court sentenced Appellant to 9 to 18

months’ incarceration on the unlawful contact with minors conviction, 9 to

18 months’ incarceration on the corruption of minors conviction consecutive

to the unlawful contact with minors conviction, one year of consecutive

probation on the indecent assault conviction, and one year of consecutive

probation on the furnishing liquor to minors conviction. Appellant’s

aggregate sentence, therefore, was 18 to 36 months’ incarceration followed

by two years’ special probation. Appellant lodged no objections at

sentencing, and did not file post-sentence motions.

Appellant filed a notice of appeal on July 9, 2015 and a Pa.R.A.P.

1925(b) statement on July 29, 2015. The trial court filed its Pa.R.A.P.

1925(a) opinion on August 28, 2015.6

As previously noted, Appellant’s counsel has filed an application

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.7 Before

addressing the merits of Appellant’s underlying issue presented, we must

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6
The Commonwealth did not file a brief with this Court.
7
978 A.2d 349 (Pa.2009).

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first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa.Super.2007) (en banc).

Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established by our

Supreme Court in Santiago. The brief 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. Counsel must also provide the appellant with a

copy of the Anders brief, together with a letter that advises the appellant of

his or her 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. Nischan, 928 A.2d 349, 353 (Pa.Super.2007).

Substantial compliance with these requirements is sufficient.

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After

establishing that the antecedent requirements have been met, this Court

must then make an independent evaluation of the record to determine

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm,

903 A.2d 1244, 1246 (Pa.Super.2006).

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Instantly, counsel contemporaneously filed a petition to withdraw as

counsel with the Anders brief. The petition states counsel’s determination

that no non-frivolous appellate issues exist. See Petition to Withdraw As

Counsel, ¶ 3. The petition further explains that counsel notified Appellant of

the withdrawal request and sent Appellant a letter explaining his right to

proceed pro se or with new, privately-retained counsel to raise any

additional points or arguments that Appellant believed had merit.8 See id.

at ¶ 4; see also Letter to Appellant, January 29, 2016. In the Anders brief,

counsel provides a summary of the facts and procedural history of the case

with citations to the record, refers to evidence of record that might arguably

support the issue raised on appeal, provides citations to relevant case law,

and states his conclusion that the appeal is wholly frivolous and his reasons

therefor. See Anders Brief, pp. 6-7. Accordingly, counsel has substantially

complied with the requirements of Anders and Santiago.

As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issue of

arguable merit raised in the Anders brief:

1. Whether the trial court abused its discretion in sentencing the
Appellant[?]

Anders Brief, p. 1.

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8
The letter further makes clear that counsel supplied Appellant with a copy
of the Anders brief. See Letter to Appellant, January 29, 2016.

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This claim raises a challenge to the discretionary aspects of Appellant’s

sentence. “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.” Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.

Allen, 24 A.3d at 1064.

Here, Appellant filed a timely notice of appeal. Further, Appellant’s

brief includes a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).9 See Appellant’s Brief, p. 3.

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9
Appellant’s Rule 2119(f) statement states, in its entirety:

The trial court abused its discretion in sentencing the Appellant
in the high end of the Sentencing Guidelines, thus constituting a
substantial question.

Appellant’s Brief, p. 3. Although this Rule 2119(f) statement is meager and
nearing insufficiency, the Commonwealth did not object. Therefore, we may
overlook the statement’s deficiencies. See Commonwealth v. Gould, 912
A.2d 869, 872 (quoting Commonwealth v. Bonds, 890 A.2d 414, 418
(Pa.Super.2005) (“[i]n the absence of any objection from the
(Footnote Continued Next Page)

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However, Appellant did not preserve his issue by lodging an objection at

sentencing or by filing a post-sentence motion for reconsideration of

sentence. Therefore, because he did not properly preserve his discretionary

aspects of sentencing claim, Appellant waived this claim for review.

Further, even had Appellant properly preserved his issue, it does not

present a substantial question for review. “A substantial question will be

found where the defendant advances a colorable argument that the sentence

imposed is either inconsistent with a specific provision of the [sentencing]

code or is contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa.Super.2013)

(internal citations omitted); see also 42 Pa.C.S. § 9781(b). “We determine

whether a particular case raises a substantial question on a case-by-case

basis.” Id. A bald or generic assertion that a sentence is excessive does

not, by itself, raise a substantial question justifying this Court’s review of the

merits of the underlying claim. Id.; see also Commonwealth v. Harvard,

64 A.3d 690, 701 (Pa.Super.2013). “[A] substantial question exists when a

sentencing court imposed a sentence in the aggravated range without

considering mitigating factors.” Rhoades, 8 A.3d at 919 n.12 (citing

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.2003)

(emphasis in original). However, “where a sentence is within the standard

_______________________
(Footnote Continued)

Commonwealth, we are empowered to review claims that otherwise fail to
comply with Rule 2119(f)”) (internal brackets omitted).

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range of the guidelines, Pennsylvania law views the sentence as appropriate

under the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162,

171 (Pa.Super.2010).

In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial

court abused its discretion by sentencing him in the high end of the

sentencing guidelines. See Appellant’s Brief, p. 3. The claim does not

allege that the sentencing court departed from the standard range and

sentenced Appellant in the aggravated range of the sentencing guidelines. It

alleges merely that Appellant received a sentence at the higher end of the

standard range. Therefore, this claim does not present a substantial

question for this Court’s review. See Moury, supra.

Further, even had Appellant stated a substantial question for review,

we would affirm on the merits. We review discretionary aspects of sentence

claims under the following standard of review:

If this Court grants appeal and reviews the sentence, the
standard of review is well-settled: sentencing is vested in the
discretion of the trial court, and will not be disturbed absent a
manifest abuse of that discretion. An abuse of discretion
involves a sentence which was manifestly unreasonable, or
which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion. Instead, the trial court imposed a sentence that

was consistent with the protection of the public, took into account the

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gravity of the offense as it related to the impact on the life of the victim and

on the community, and considered the Appellant’s rehabilitative needs, as

required by 42 Pa.C.S. § 9721(b).

In imposing sentence, the trial court considered the sentencing

guidelines, the pre-sentence investigation report,10 the arguments of

counsel, the testimony of the victims, the testimony of the victims’ families,

the testimony of Appellant’s friend, the testimony of Appellant’s sister, and

the testimony of Appellant himself. N.T. 7/7/2015, pp. 1-20. The trial court

then sentenced Appellant to a standard range sentence. Id. at 20-22. We

find no abuse of discretion in the trial court’s sentencing.

Given the foregoing, Appellant has not properly preserved his claim for

review by this Court. Further, he has not raised a substantial question

regarding the appropriateness of his sentence. Finally, even if he had raised

a substantial question for review, his claim would fail on the merits.

Accordingly, we agree with counsel that Appellant’s claim is wholly frivolous.

Moreover, our independent review of the record has revealed no other

preserved issues of arguable merit. Accordingly, we affirm the judgment of

sentence.

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10
Where a sentencing court had the benefit of a presentence investigation
report, we assume the sentencing court was aware of relevant information
contained therein and weighed that information along with any mitigating
factors. Moury, 992 A.2d at 171.

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Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/2016

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