J-S55031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN A. FELICIANO,
Appellant No. 3259 EDA 2015
Appeal from the Judgment of Sentence October 2, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003298-2014
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 29, 2016
Appellant appeals from the judgment of sentence entered in the Court
of Common Pleas of Northampton County following the revocation of his
probation. Counsel has filed a petition to withdraw from representation and
a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396
(1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(2009). We affirm the judgment of sentence and grant counsel’s petition to
withdraw.
The relevant facts and procedural history are as follows: On December
29, 2014, Appellant pled guilty to theft of a motor vehicle and possession of
a controlled substance.1 The trial court sentenced Appellant to time served
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1
18 Pa.C.S.A. § 3934(a) and 35 P.S. § 780-113(a)(16), respectively.
*Former Justice specially assigned to the Superior Court.
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to two months in prison, to be followed by ten months of probation, for theft
of a motor vehicle, and ten months of probation for possession of a
controlled substance. The sentences were to run concurrently.
On or about June 29, 2015, while he was on probation with regard to
the instant case, Appellant was charged with several offenses in an
unrelated matter, which was docketed in the lower court at CP-48-CR-
0001983-2015. On August 20, 2015, he entered a guilty plea in the
unrelated matter to one count of robbery, 18 Pa.C.S.A. § 3701, and he was
sentenced to fifteen months to thirty-six months in prison.
With regard to the instant case, due to his conviction at Docket CP-48-
CR-0001983-2015, as well as other technical violations, Appellant, who was
represented by counsel, proceeded to a Gagnon II2 hearing on October 2,
2015. At the hearing, the trial court determined Appellant was in willful
violation of his probation, and accordingly, the trial court revoked Appellant’s
probation. The trial court then imposed a sentence of six months to twelve
months in prison for theft of a motor vehicle, and six months to twelve
months in prison for possession of a controlled substance. The sentences
were imposed concurrently to each other, but consecutively to Appellant’s
sentence imposed at Docket CP-48-CR-0001983-2015.
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2
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973).
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Appellant filed a timely motion seeking reconsideration of his sentence.
Specifically, he baldly asserted the trial court should have directed that his
sentence for the instant matter be made concurrent to his sentence at
Docket CP-48-CR-0001983-2015. The trial court denied Appellant’s post-
sentence motion, and this timely appeal followed. The trial court directed
Appellant to file a Pa.R.A.P. 1925(b) statement, and counsel filed a
statement indicating his intent to file an Anders brief. As indicated supra,
on appeal, counsel has filed a petition to withdraw, as well as a brief
pursuant to Anders.
When faced with a purported Anders brief, this Court may not review
the merits of the issues raised therein without first passing on the request to
withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005).
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, 602 Pa. at 178-79, 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
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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).
Instantly, counsel provided a summary of the history of the case,
referred to anything in the record that counsel believed arguably supports
the appeal, set forth his conclusion that the appeal is frivolous, and stated in
detail his reasons for so concluding. Moreover, counsel has provided this
Court with a copy of the letter, which counsel sent to Appellant informing
him of his right to retain new counsel, proceed pro se, or raise any points
Appellant deems worthy of this Court’s attention.3 Accordingly, we conclude
counsel has substantially complied with the requirements of Anders and
Santiago. We, therefore, turn to the issue of arguable merit counsel
presented in his Anders brief to make an independent judgment as to
whether the appeal is, in fact, wholly frivolous. Commonwealth v. Bynum-
Hamilton, 135 A.3d 179 (Pa.Super. 2016).
Appellant challenges the discretionary aspects of his sentence.
Specifically, he avers the trial court should have directed that his sentence in
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3
We note Appellant has filed neither a pro se brief nor a counseled brief with
new, privately-retained counsel.
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the instant matter be made concurrent to his sentence at Docket CP-48-CR-
0001983-2015.
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
We 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) (citations
omitted).
Here, Appellant filed a timely notice of appeal and a timely post-
sentence motion in which he preserved his discretionary aspect of
sentencing claim. Counsel did not include a separate Pa.R.A.P. 2119(f)
statement in his Anders brief; however, this Court has held that such a
failure does not preclude review of whether Appellant’s issue is frivolous.
See Bynum-Hamilton, supra. As to whether Appellant has presented a
substantial question, we note the following:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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
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(2) contrary to the fundamental norms which underlie the
sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation,
quotation marks, and quotation omitted).
With regard to the imposition of consecutive sentences, this Court has
held:
A court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2
A.3d 581, 587 (Pa.Super. 2010)[.] Rather, the imposition of
consecutive rather than concurrent sentences will present a
substantial question in only “the most extreme circumstances,
such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of
imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365,
372 (Pa.Super. 2012)[(en banc)].
[An appellant] may raise a substantial question
where [s]he receives consecutive sentences within
the guideline ranges if the case involves
circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a
sentence will not raise a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa.Super. 2015)
(quotation omitted). As this Court has emphasized, “the key to resolving
the preliminary substantial question inquiry is whether the decision to
sentence consecutively raises the aggregate sentence to, what appears upon
its fact to be, an excessive level in light of the criminal conduct at issue in
the case.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
(quotation marks and quotation omitted).
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In the case sub judice, Appellant does not contend that his aggregate
sentence for the instant matter is unduly harsh, given the nature of his
crimes and the length of imprisonment. Rather, Appellant baldly suggests
the trial court's imposition of his current sentence to run consecutively to the
sentence he received at Docket CP-48-CR-0001983-2015 is excessive. We
conclude that Appellant has not presented a substantial question permitting
our review. See Commonwealth v. Pass, 914 A.2d 442, 446 (Pa.Super.
2006) (“The [a]ppellant's claim that the trial court erred in ordering his
sentences imposed on August 9, 2005[,] to run consecutively, instead of
concurrently, to a previously imposed sentence does not raise a substantial
question.”).
For all of the foregoing reasons, and after an independent review, we
conclude Appellant is not entitled to relief and we grant counsel's petition to
withdraw his representation.
Judgment of Sentence Affirmed. Petition to Withdraw as Counsel
Granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2016
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