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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARK DAVID BARENDS
Appellant No. 3206 EDA 2015
Appeal from the Judgment of Sentence May 8, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000652-2015
CP-48-CR-0000653-2015
BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 07, 2016
Appellant, Mark David Barends, appeals from the judgment of
sentence entered by the Honorable Stephen G. Baratta, President Judge of
the Court of Common Pleas of Northampton County. Additionally, Barends’
court-appointed counsel, Rory B. Driscole, Esquire, filed a petition to
withdraw as counsel and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We affirm the judgment of sentence and grant Attorney Driscole’s petition to
withdraw.
The relevant factual and procedural history is as follows. Barends
entered a negotiated guilty plea to resisting arrest, possession of drug
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*
Former Justice specially assigned to the Superior Court.
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paraphernalia, DUI, and harassment. Thereafter, the trial court sentenced
Barends to an aggregate term of 15 to 60 months’ imprisonment. The trial
court denied Barends’ post-sentence motion to withdraw his guilty plea.
Thereafter, Barends filed a motion to reinstate appellate rights nunc pro
tunc, which the trial court granted. This timely appeal followed. Attorney
Driscole subsequently filed a petition to withdraw as counsel and an Anders
brief.
We begin by addressing Attorney Driscole’s petition to withdraw. If
counsel believes an appeal is frivolous and wishes to withdraw
representation on appeal, he must follow certain steps.
First, counsel must petition the court for leave to withdraw
and state that after making a conscientious examination of
the record, he has determined that the appeal is frivolous;
second, he must file a brief referring to any issues in the
record of arguable merit; and third, he must furnish a copy
of the brief to the defendant and advise him of his right to
retain new counsel or to himself raise any additional points
he deems worthy of the Superior Court’s attention.
Santiago, 978 A.2d at 351 (citation omitted). Substantial compliance with
these requirements is sufficient. See Commonwealth v. Wrecks, 934 A.2d
1287, 1290 (Pa. Super. 2007). Once counsel has met his obligations, “it
then becomes the responsibility of the reviewing court to make a full
examination of the proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.” Santiago, 978 A.2d at
355 n.5 (citation omitted).
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Attorney Driscole has substantially complied with the technical
requirements of Anders as articulated in Santiago. Additionally, Attorney
Driscole sent a copy of the Anders brief to Barends, as well as a letter
explaining to Barends that he has the right to proceed pro se or retain new
counsel. Barends has not filed a response.
We will now conduct an independent evaluation of the record to
determine the accuracy of Attorney Driscole’s averment that this appeal is
wholly frivolous. The Anders brief challenges discretionary aspects of
Barends’ sentence. See Appellant’s Brief, at 5. Thus, Barends was required
to “set forth in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of [his]
sentence.” Pa.R.A.P. 2119(f).
The concise statement must specify where the sentence falls in
relation to the sentencing guidelines and what particular
provision of the code it violates. Additionally, the statement
must specify what fundamental norm the sentence violates and
the manner in which it violates that norm. If the statement
meets these requirements, we can decide whether a substantial
question exists.
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. Super. 2004) (internal
quotations and citations omitted).
“[A] defendant’s statement must raise a substantial question as to
whether the court properly considered the sentencing guidelines.”
Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010)
(citation omitted). A “substantial question” as to the inappropriateness of the
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sentence under the Sentencing Code 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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012)
(internal quotations and citations omitted).
Here, the Anders brief does not include a 2119(f) statement, nor does
it cite to a particular provision of the Sentencing Code or a specific
fundamental norm that Barends’ sentence allegedly violates. Nevertheless,
in light of Attorney Driscole’s petition to withdraw, we will address the claim.
See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(stating that where counsel files an Anders brief, this Court will review
discretionary aspects of sentencing claims that were otherwise not properly
preserved).
Our standard of review is as follows.
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.
Downing, 990 A.2d at 792-93 (citation omitted).
Upon review of the record, we conclude that the trial court did not
abuse its discretion in fashioning Barends’ sentence. After considering the
pre-sentence investigation report, the trial court imposed sentences within
the standard range of the sentencing guidelines for all of Barends’
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convictions. The standard range sentence is presumptively reasonable. See,
e.g., Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006).
Thus, Barends’ challenge to the discretionary aspects of his sentence is
meritless.
After examining the issue contained in the Anders brief and
undertaking our own independent review of the record, we agree with
Attorney Driscole’s assessment that this appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel
granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2016
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