J-S51040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALFONZO GLENN, :
:
Appellant : No. 597 MDA 2019
Appeal from the Judgment of Sentence Entered March 14, 2019
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001453-2017
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 07, 2019
Alfonzo Glenn (“Glenn”) appeals from the judgment of sentence
imposed following his open guilty plea to aggravated assault. 1 Additionally,
Glenn’s counsel, Matthew P. Kelly, Esquire (“Attorney Kelly”), has filed a
Petition to Withdraw as counsel and an accompanying brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967). We grant Attorney Kelly’s
Petition to Withdraw and affirm Glenn’s judgment of sentence.
On January 23, 2019, Glenn entered an open guilty plea to aggravated
assault. The trial court sentenced Glenn to a term of 72 to 156 months in
prison, followed by two years of probation. Glenn filed a post-sentence Motion
requesting reconsideration of his sentence, which the trial court denied. Glenn
filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal. Attorney Kelly subsequently
____________________________________________
1 See 18 Pa.C.S.A. § 2702(a)(1).
J-S51040-19
filed, with this Court, an Anders brief and a Petition to withdraw as counsel.
Glenn neither filed a pro se brief, nor retained alternate counsel for this
appeal.
Before addressing Glenn’s issue on appeal, we must determine whether
Attorney Kelly has complied with the dictates of Anders and its progeny in
petitioning to withdraw from representation. See Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen
presented with an Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw.”).
Pursuant to Anders, when counsel believes that an appeal is frivolous and
wishes to withdraw from representation, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders 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
-2-
J-S51040-19
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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the instant case, our review of the Anders Brief and the Petition to
Withdraw reveals that Attorney Kelly has substantially complied with each of
the requirements of Anders/Santiago. See Commonwealth v. Wrecks,
934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Attorney Kelly
indicates that he has made a conscientious examination of the record and
determined that an appeal would be frivolous. Further, Attorney Kelly’s
Anders Brief comports with the requirements set forth by the Supreme Court
of Pennsylvania in Santiago. Finally, Attorney Kelly provided Glenn with a
copy of the Anders Brief, and advised him of his rights to proceed pro se,
retain new counsel, or raise any additional points deemed worthy of the
Court’s attention. Thus, Attorney Kelly has complied with the procedural
requirements for withdrawing from representation. We next examine the
record and make an independent determination of whether Glenn’s appeal is,
in fact, wholly frivolous.
Attorney Kelly presents the following issue, on behalf of Glenn, for our
review: “Whether the trial court abused its discretion in sentencing [Glenn]
to the high-end of the standard range of the sentencing guidelines and in
failing to consider [Glenn’s] attempts at rehabilitation[?]” Anders Brief at 1.
-3-
J-S51040-19
This issue challenges the discretionary aspects of Glenn’s sentence. “A
challenge to the discretionary aspects of sentencing is not automatically
reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,
815 (Pa. Super. 2017). 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).
Grays, 167 A.3d at 815-16 (citation omitted).
Glenn filed a timely Notice of Appeal, and Attorney Kelly included a
2119(f) Statement within the Anders Brief, and has advanced a plausible
argument that the trial court failed to consider evidence that Glenn’s
substance abuse problem is under control; he incurred no misconducts while
incarcerated; and that he accepted responsibility for his crimes. See Anders
Brief at 4; see also Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.
2012) (stating that an appellant raises a substantial question where he alleges
that “the trial court failed to consider relevant sentencing criteria, including
the protection of the public, the gravity of the underlying offense and the
rehabilitative needs of Appellant.”). Accordingly, we will address Glenn’s
discretionary sentencing claim.
-4-
J-S51040-19
Glenn argues that his sentence is harsh and excessive because the trial
court sentenced him at the high end of the standard range of the sentencing
guidelines and did not consider his attempts at rehabilitation. Anders Brief
at 6-8.
Our standard of review is well settled:
When imposing a sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation. It must be
demonstrated that the court considered the statutory factors
enunciated for determination of sentencing alternatives, and the
sentencing guidelines. Additionally, the court must impose a
sentence which is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the
victim and the community, and the rehabilitative needs of the
defendant.
Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)
(internal citations and quotation marks omitted). “[W]here a sentence is
within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.” Commonwealth v.
Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Initially, the trial court had the benefit of a pre-sentence investigation
report (“PSI”), which the court expressly stated it had considered prior to
imposing sentence. See N.T., 3/14/19, at 5. “[W]here the trial court is
informed by a [PSI], it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed.” Commonwealth v.
-5-
J-S51040-19
Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (quotation marks and
citations omitted).
Moreover, the record reflects that the trial court considered the
sentencing guidelines, Glenn’s criminal record, protection of the public, the
gravity of Glenn’s offense as it relates to the impact on the life of the victim
and the community, and Glenn’s rehabilitative needs. See Trial Court Opinion,
5/21/19, at 7-8. Particularly, the trial court noted the severity of Glenn’s
actions:
After considering the record in this case, we are not persuaded
[that Glenn] comprehends the gravity of his offense. The victim
testified at the sentencing hearing that, when assaulted and
strangled [by Glenn], [Glenn] placed a bag over her head and
attempted to suffocate her. She related that, prior to passing out,
“I said, God, forgive me for my sins. I really thought I was going
to die.” She stated this occurred in the presence of her four-year
old son[,] and she described the disturbing after-effects of the
crime on them. She also noted that two years later they both
remain in counseling as a result of the crime.”
Id. at 7 (citations to record and emphasis omitted). Thus, the trial court
properly considered all of the statutory factors before sentencing Glenn. See
McClendon, supra. Additionally, the sentence was within the standard range
of the guidelines. See Moury, supra. Accordingly, we conclude that the trial
court’s sentence was not improperly excessive, and Glenn’s discretionary
sentencing challenge is wholly frivolous.
Finally, our independent review of the record discloses no additional
non-frivolous issues that could be raised on appeal. We therefore grant
Attorney Kelly’s Petition, and affirm Glenn’s judgment of sentence.
-6-
J-S51040-19
Petition to Withdraw granted. Judgment of sentence affirmed.
President Judge Panella joins the memorandum.
P.J.E. Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2019
-7-