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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 ARRINGTON, : No. 809 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, April 20, 2016,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0002157-2015
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 17, 2017
Mark Arrington appeals from the April 20, 2016 judgment of sentence
after he pled1 guilty to one count of interference with custody of children and
one count of indecent assault.2 The trial court sentenced him to a term of
16 to 84 months’ imprisonment for interference with custody of children and
to a concurrent term of 16 to 60 months’ imprisonment for indecent assault.
Emily M. Merski, assistant public defender for Erie County, has filed a
1
In exchange for his plea, the Commonwealth dropped charges of indecent
exposure and corruption of minors, 18 Pa.C.S.A. §§ 3127(a) and
6301(a)(1)(i), respectively.
2
18 Pa.C.S.A. §§ 2904(a) and 3126(a)(7), respectively.
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petition to withdraw, alleging that the appeal is frivolous, accompanied by an
Anders brief.3
The record reflects that on May 1, 2015, appellant picked up an
eight-year-old girl at a park and gave her a ride in his automobile without
her parent’s knowledge or permission. At some point while the child was in
his car, he kissed her on the lips. (Notes of testimony, 1/6/16 at 13.)
On April 20, 2016, the trial court imposed the sentence on appellant.
Appellant then filed a motion for reconsideration/modification of sentence
which the trial court denied on May 5, 2016.
Appellant contends that his sentence was “manifestly excessive,
clearly unreasonable and inconsistent with the objectives of the Sentencing
Code.” (Appellant’s brief at 3.)
On November 16, 2016, Attorney Merski filed in this court a petition to
withdraw as counsel and an Anders brief, wherein Attorney Merski states
that there are no non-frivolous issues preserved for our review.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
3
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
examination of the record,
counsel finds the appeal to
be wholly frivolous. Counsel
must also file an Anders
brief setting forth issues that
might arguably support the
appeal along with any other
issues necessary for the
effective appellate
presentation thereof.
Anders counsel must also
provide a copy of the Anders
petition and brief to the
appellant, advising the
appellant of the right to
retain new counsel, proceed
pro se or raise additional
points worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
The Anders brief that
accompanies court-appointed
counsel’s petition to
withdraw . . . must:
(1) provide a summary of the
procedural history and facts,
with citations to the record;
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(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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked
the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Merski’s application to withdraw, supporting
documentation, and Anders brief reveals that she has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant, advised him of his right to retain new counsel,
proceed pro se, and/or raise any additional points that he deems worthy of
this court’s attention, and attached to the Anders petition a copy of the
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letter sent to appellant as required under Commonwealth v. Millisock,
873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels,
999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in
Santiago set forth the new requirements for an Anders brief, which are
quoted above, the holding did not abrogate the notice requirements set forth
in Millisock that remain binding legal precedent.”). As Attorney Merski has
complied with all of the requirements set forth above, we conclude that
counsel has satisfied the procedural requirements of Anders.
Once counsel has met her 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. Thus,
we now turn to the merits of appellant’s appeal.
Appellant contends that his sentence was manifestly excessive, clearly
unreasonable, and inconsistent with the objectives of Section 9721(b) of the
Sentencing Code, 42 Pa.C.S.A. § 9721(b). Further, appellant asserts that
the trial court abused its discretion when it sentenced appellant to such a
lengthy period of incarceration given the mitigating factors of the case.
Appellant argued before the trial court that he was not a sexually violent
predator, he had no similar prior offense, he had completed a drug and
alcohol program during his incarceration, he was 33 years old, he was
married, and his main problem was his alcoholism.
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Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. See Commonwealth v. Allen, 24 A.3d
1058, 1064 (Pa.Super. 2011). Rather, an appellant challenging the
discretionary aspects of his sentence must invoke this court’s jurisdiction by
satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
[a]ppellant preserved his issue; (3) whether
[a]ppellant’s brief includes a concise statement of
the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a
substantial question that the sentence is appropriate
under the sentencing code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Here, the record reveals that appellant filed a timely notice of appeal
and preserved his issues in his post-sentence motion. (See “Motion for
Reconsideration/Modification of Sentence,” 4/29/16.) Appellant also
included a statement in his brief that comports with the requirements of
Pa.R.A.P. 2119(f). (See Anders brief at 4-5.) Accordingly, we must
determine whether appellant has raised a substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(citation omitted). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
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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),
appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).
Upon review, we find that appellant has failed to raise a substantial
question that his sentence is not appropriate under the Sentencing Code.
The trial court imposed a standard range sentence within the guidelines after
reviewing a pre-sentence investigation report. Where the sentencing court
issues a standard range sentence after reviewing a pre-sentence report, this
court will not find a sentence excessive. Commonwealth v. Moury, 992
A.2d 162, 171 (Pa.Super. 2010). Further, this court has held that a claim of
an excessive sentence when a standard range sentence is imposed fails to
raise a substantial question. Commonwealth v. Dodge, 77 A.3d 1263,
1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014). Likewise,
“a claim of inadequate consideration of mitigating factors does not raise a
substantial question for our review.” Commonwealth v. Disalvo, 70 A.3d
900, 903 (Pa.Super. 2013) (citation omitted); see also Moury, 992 A.2d at
171 (stating that an “allegation that [the] sentencing court failed to consider
or did not adequately consider certain factors generally does not raise a
substantial question.” (citation and internal quotation marks omitted)).
Based on the foregoing, we agree with counsel’s assessment that this
appeal is wholly frivolous and that appellant is entitled to no relief on his
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discretionary aspects of sentencing claims. After our own independent
review of the record, we discern no additional issues of arguable merit.
Accordingly, we grant counsel’s petition to withdraw and affirm the April 20,
2016 judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
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