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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL EDWARD SALKO, JR.
Appellant No. 1967 MDA 2015
Appeal from the Judgment of Sentence October 8, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-0002004-2015, CP-40-CR-0002972-2013,
CP-40-CR-0003165-2013
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 11, 2017
Appellant, Michael Edward Salko, Jr., appeals from the October 8,
2015 judgment of sentence of twenty-four months of intermediate
punishment and two years of probation. Appellant challenges the
discretionary aspects of his sentence. Additionally, Appellant’s counsel,
Amanda M. Young, Esq., seeks to withdraw her representation of Appellant
pursuant to Anders v. California, 87 S. Ct. 1936 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and
grant counsel’s petition to withdraw.
On August 24, 2014, at criminal information No. 3165-2013, Appellant
pleaded guilty to loitering and prowling at nighttime.1 On May 20, 2015, at
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1
18 Pa.C.S. § 5506.
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criminal information No. 2972-2013, Appellant pleaded guilty to receiving
stolen property.2 On October 8, 2015, at criminal information No. 2004-
2015, Appellant pleaded guilty to possession of a controlled substance,
possession of drug paraphernalia, and driving while operating privilege was
suspended or revoked.3
Appellant was sentenced on all three dockets on October 8, 2015. At
criminal information No. 2972-2013, he was sentenced to twenty-four
months of intermediate punishment. At criminal information No. 2004-2015,
he was sentenced to one year of concurrent probation and one year of
consecutive probation. At criminal information No. 3165-2013, Appellant
was sentenced to one year of consecutive probation. Appellant’s sentences
were within the standard range of the sentencing guidelines. See Trial
Court Opinion (TCO), 12/18/15, at 1.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. In the statement, appellate counsel indicated her intention to file
an Anders brief. The court issued a responsive opinion.
On August 12, 2016, appellate counsel filed in this Court an Anders
brief and application to withdraw as counsel. The brief sets forth the single
issue Appellant seeks to raise on appeal, namely, that the imposition of a
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2
18 Pa.C.S. § 3925.
3
35 P.S. § 780-113(a)(1), 35 P.S. § 780-113(a)(32), and 75 Pa.C.S. §
1543(a).
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twenty-four month IPP sentence followed by two years of probation and a
$200 fine is harsh and excessive, where Appellant took responsibility by
pleading guilty, obtained a job, and is re-involved in his children’s lives.
Appellant’s Brief at 1.
When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on
direct appeal under Anders, counsel must file a brief that meets the
requirements established by the Pennsylvania Supreme Court in Santiago,
namely:
(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 also must provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his 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.”
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Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, only then may this Court “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In the instant matter, Attorney Young’s Anders brief complies with the
above-stated requirements. Namely, she includes a summary of the
relevant factual and procedural history, she refers to the portions of the
record that could arguably support Appellant’s claims, and she sets forth her
conclusion that Appellant’s appeal is frivolous. She explains her reasoning
and supports her rationale with citations to the record as well as pertinent
legal authority. Attorney Young avers she has supplied Appellant with a
copy of her Anders brief and a letter explaining the rights enumerated in
Nischan.4 Accordingly, counsel has complied with the technical
requirements for withdrawal. Thus, we may independently review the record
to determine if the issues Appellant raises are frivolous and to ascertain if
there are other non-frivolous issues he may pursue on appeal.
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4
Appellant has not filed a response to counsel’s Anders brief.
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Appellant’s issue challenges the discretionary aspects of his sentence.
Appellant argues that the sentence is excessive because he took
responsibility by pleading guilty, admitted his drug and alcohol problem, and
has become re-involved in his children’s lives. Appellant’s Brief at 4.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal. See Commonwealth v.
Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.
2119(f). This Court conducts a four-part analysis to determine: (1) whether
Appellant has timely filed a notice of appeal; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider and modify
sentence; (3) whether Appellant’s brief has a fatal defect; and (4) whether
there is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted).
Appellant has filed a timely notice of appeal. However, Appellant did
not preserve his challenge to the discretionary aspects of his sentence at
sentencing, or in a motion to reconsider. This alone would be fatal to his
appeal. Additionally, Appellant has not raised a substantial question. See
Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003) (“[A]n
allegation that the sentencing court did not consider certain mitigating
factors does not raise a substantial question.”); see also Commonwealth
v. Brown, 741 A.2d 726, 735 (“[A] claim of excessiveness of sentence does
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not raise a substantial question where the sentence is within the statutory
limits.”).
In short, we agree with Attorney Young that Appellant’s issue is
frivolous. We have independently reviewed the record, and find no other
issues of arguable merit that he could pursue on appeal. Accordingly, we
affirm Appellant’s judgment of sentence and grant counsel’s petition to
withdraw.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2017
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