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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES EDWARD DROB, SR.
Appellant No. 1367 MDA 2015
Appeal from the Judgment of Sentence July 8, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000897-2014
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 01, 2016
Appellant, James Edward Drob, Sr., appeals from the judgment of
sentence entered in the Luzerne County Court of Common Pleas, following
his guilty plea to one (1) count each of conspiracy and criminal use of
communication facility.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On December 19, 2013, a confidential informant (“CI”) spoke with Appellant
via telephone to arrange a purchase of heroin. Appellant told the CI that
another individual, William Rivera, Jr., would sell heroin to the CI. Under
police surveillance, the CI subsequently drove to Appellant’s residence.
Appellant entered the CI’s vehicle and directed the CI to an address where
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1
18 Pa.C.S.A. §§ 903, 7512, respectively.
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Mr. Rivera was present. Upon arrival, Appellant entered the residence with
the CI. The CI then purchased heroin from Mr. Rivera with pre-recorded buy
money.
On July 17, 2014, Appellant pled guilty to conspiracy to deliver a
controlled substance and criminal use of communication facility. On July 8,
2015, the court sentenced Appellant to concurrent terms of thirty-six (36) to
seventy-two (72) months’ incarceration for each offense. Appellant filed a
timely notice of appeal on August 3, 2015. The court ordered Appellant to
file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b). On September 9, 2015, counsel filed a statement of intent to file
an Anders2 brief, pursuant to Pa.R.A.P. 1925(c)(4). On February 29, 2016
counsel filed with this Court a petition to withdraw as counsel.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders, supra and Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago
require counsel to: 1) petition the Court for leave to withdraw, certifying
that after a thorough review of the record, counsel has concluded the issues
to be raised are wholly frivolous; 2) file a brief referring to anything in the
record that might arguably support the appeal; and 3) furnish a copy of the
brief to the appellant and advise him of his right to obtain new counsel or file
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2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).
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a pro se brief to raise any additional points the appellant deems worthy of
review. Santiago, supra at 173-79, 978 A.2d at 358-61. 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) (quoting Commonwealth v. Townsend, 693 A.2d 980,
982 (Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where appellate counsel seeks to withdraw representation:
Neither Anders nor McClendon[3] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
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3
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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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.
Id. at 178-79, 978 A.2d at 361.
Instantly, counsel’s petition to withdraw states that counsel conducted
a conscientious review of the certified record and determined the appeal is
wholly frivolous. Counsel provided copies of the Anders brief and petition to
withdraw to Appellant. Counsel also sent Appellant a letter explaining
Appellant’s right to obtain new counsel or to proceed pro se to raise any
additional issues for this Court’s consideration. In the Anders brief, counsel
provides a statement of the case and refers to relevant law and evidence of
record that might arguably support Appellant’s discretionary aspects of
sentencing claim on appeal. Counsel further states his reasons for his
conclusion that the appeal is wholly frivolous. Therefore, counsel has
substantially complied with the requirements of Anders and Santiago.
We proceed to an independent review of the issue raised in the
Anders brief:
WHETHER THE IMPOSITION OF CONCURRENT SENTENCES
ON CASE NO. 897 OF 2014 IS HARSH AND EXCESSIVE
UNDER THE CIRCUMSTANCES.
(Anders Brief at 1).
Appellant argues the trial court should have imposed a lesser sentence
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because Appellant is a military veteran. Appellant concludes his sentence is
manifestly excessive. As presented, Appellant challenges the discretionary
aspects of his sentence. See Commonwealth v. Lutes, 793 A.2d 949
(Pa.Super. 2002) (stating claim that sentence is manifestly excessive
challenges discretionary aspects of sentencing); Commonwealth v. Cruz-
Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676
A.2d 1195 (1996) (stating claim that sentencing court failed to consider or
did not adequately consider certain factors challenges discretionary aspects
of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
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separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 912-13 (quoting
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),
appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A bald allegation of
excessiveness does not present a substantial question. Mouzon, supra.
Additionally, a court’s refusal to weigh proposed mitigating factors as the
defendant wishes, absent more, does not raise a substantial question.
Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010).
Instantly, Appellant failed to raise his sentencing challenge at the
sentencing hearing or in a timely filed post-sentence motion. Therefore,
Appellant’s issue is waived. See Evans, supra. Moreover, Appellant’s bare
assertion that his sentence was excessive in light of one particular mitigating
factor, absent more, does not raise a substantial question. See Moury,
supra. Based on our independent examination of the record, we conclude
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this appeal is wholly frivolous. Accordingly, we affirm and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2016
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