J-S40018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BARRY THOMAS, : : Appellant : No. 3169 EDA 2016
Appeal from the Judgment of Sentence September 20, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000809-2016
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED JULY 10, 2017
Appellant, Barry Thomas, appeals from the Judgment of Sentence
imposed after the trial court convicted him of Possession, Possession With
Intent to Deliver (Marijuana) (“PWID”), and Possession of Drug
Paraphernalia.1 On appeal, Appellant challenges discretionary aspects of his
sentence. Additionally, Appellant’s counsel seeks permission to withdraw his
representation of Appellant pursuant to Anders v. California, 386 U.S. 738
(1967), as elucidated by our Supreme Court in Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), and amended in Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we find Appellant’s ____________________________________________
* Former Justice specially assigned to the Superior Court. 1 35 P.S. § 780-113(a)(16); 35 P.S. § 780-113(a)(30); 35 P.S. § 780- 113(a)(32), respectively. J-S40018-17
claim is frivolous. Accordingly, we affirm his Judgment of Sentence and
grant counsel’s Petition to Withdraw.
On July 12, 2016, the trial court convicted Appellant of the above
charges. On September 20, 2016, the court sentenced Appellant to an
aggregate sentence of 18 to 36 months’ incarceration, a standard range
sentence under the sentencing guidelines, and 5 years’ reporting probation.2
On September 21, 2016, Appellant filed a Post-Sentence Motion, in
which he challenged the discretionary aspects of his sentence. The trial
court denied the Motion on September 23, 2016. Appellant filed a timely
Notice of Appeal.
On October 26, 2016, Appellant’s trial counsel filed an Application to
Withdraw as Counsel. Accordingly, on November 22, 2016, this Court
remanded this case for the trial court for the appointment of new counsel.
The court appointed appellate counsel on November 30, 3016. Following his
appointment, appellate counsel filed a statement indicating that counsel
intended to file an Anders Brief in lieu of a Rule 1925(b) Statement,
pursuant to Pa.R.A.P. 1925(c)(4), asserting that there were no meritorious
issues to raise on appeal. Appellate counsel filed a Brief and a Petition to
Withdraw as Appellant’s Counsel pursuant to Anders and Santiago, supra.
____________________________________________
2 Specifically, the court sentenced Appellant to a term of incarceration and probation for his PWID conviction. The court adjudicated Appellant guilty on the Possession and Paraphernalia charges, but imposed no further penalty.
-2- J-S40018-17
In his Anders Brief, counsel raised one issue:
The trial court committed an abuse of discretion in imposing sentence because the sentence imposed overstated Appellant’s criminal record given that there had been a lengthy period of time between Appellant’s last conviction and the instant one.
Anders Brief at 13.
As Appellant’s counsel has filed an Anders Brief, we must consider his
request to withdraw as counsel prior to reviewing Appellant’s claims on the
merits. Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010).
Counsel has complied with the mandated procedure for withdrawing as
counsel. See Commonwealth v. Santiago, 978 A.2d 349, 361
(articulating Anders requirements); Daniels, supra at 594 (providing that
counsel must inform client by letter of rights to proceed once counsel moves
to withdraw and append a copy of the letter to the petition). Appellant has
not filed a response.
As a result, we proceed to conduct an independent review to ascertain
if the appeal is indeed wholly frivolous. Commonwealth v. Flowers, 113
A.3d 1246, 1249 (Pa. Super. 2015).
In his Anders Brief, Appellant challenges the discretionary aspects of
his sentence. A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
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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).
In the instant case, Appellant met the first three elements by filing a
timely Notice of Appeal, properly preserving the issue in a Post-Sentence
Motion to modify his sentence, and including a Statement of Reasons Relied
Upon for Allowance of Appeal pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f)
Statement”) in his Anders Brief. As to whether Appellant has presented a
substantial question, we note:
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 (2) contrary to the fundamental norms which underlie the sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation omitted).
Here, Appellant avers the trial court failed to adequately consider as a
mitigating factor the length of time between his prior offense, which
occurred in 2003, and the instant one before imposing his sentence.
-4- J-S40018-17
Anders Brief at 13. An argument that the sentencing court failed to
consider mitigating factors in favor of a lesser sentence does not present a
substantial question appropriate for our review. Commonwealth v.
Hanson, 856 A.2d 1254, 1257-58 (Pa. Super. 2004). See also
Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (citing
Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en
banc) (concluding that an allegation that the sentencing court did not
adequately consider various factors is, in effect, a request that this court
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J-S40018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BARRY THOMAS, : : Appellant : No. 3169 EDA 2016
Appeal from the Judgment of Sentence September 20, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000809-2016
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED JULY 10, 2017
Appellant, Barry Thomas, appeals from the Judgment of Sentence
imposed after the trial court convicted him of Possession, Possession With
Intent to Deliver (Marijuana) (“PWID”), and Possession of Drug
Paraphernalia.1 On appeal, Appellant challenges discretionary aspects of his
sentence. Additionally, Appellant’s counsel seeks permission to withdraw his
representation of Appellant pursuant to Anders v. California, 386 U.S. 738
(1967), as elucidated by our Supreme Court in Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), and amended in Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we find Appellant’s ____________________________________________
* Former Justice specially assigned to the Superior Court. 1 35 P.S. § 780-113(a)(16); 35 P.S. § 780-113(a)(30); 35 P.S. § 780- 113(a)(32), respectively. J-S40018-17
claim is frivolous. Accordingly, we affirm his Judgment of Sentence and
grant counsel’s Petition to Withdraw.
On July 12, 2016, the trial court convicted Appellant of the above
charges. On September 20, 2016, the court sentenced Appellant to an
aggregate sentence of 18 to 36 months’ incarceration, a standard range
sentence under the sentencing guidelines, and 5 years’ reporting probation.2
On September 21, 2016, Appellant filed a Post-Sentence Motion, in
which he challenged the discretionary aspects of his sentence. The trial
court denied the Motion on September 23, 2016. Appellant filed a timely
Notice of Appeal.
On October 26, 2016, Appellant’s trial counsel filed an Application to
Withdraw as Counsel. Accordingly, on November 22, 2016, this Court
remanded this case for the trial court for the appointment of new counsel.
The court appointed appellate counsel on November 30, 3016. Following his
appointment, appellate counsel filed a statement indicating that counsel
intended to file an Anders Brief in lieu of a Rule 1925(b) Statement,
pursuant to Pa.R.A.P. 1925(c)(4), asserting that there were no meritorious
issues to raise on appeal. Appellate counsel filed a Brief and a Petition to
Withdraw as Appellant’s Counsel pursuant to Anders and Santiago, supra.
____________________________________________
2 Specifically, the court sentenced Appellant to a term of incarceration and probation for his PWID conviction. The court adjudicated Appellant guilty on the Possession and Paraphernalia charges, but imposed no further penalty.
-2- J-S40018-17
In his Anders Brief, counsel raised one issue:
The trial court committed an abuse of discretion in imposing sentence because the sentence imposed overstated Appellant’s criminal record given that there had been a lengthy period of time between Appellant’s last conviction and the instant one.
Anders Brief at 13.
As Appellant’s counsel has filed an Anders Brief, we must consider his
request to withdraw as counsel prior to reviewing Appellant’s claims on the
merits. Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010).
Counsel has complied with the mandated procedure for withdrawing as
counsel. See Commonwealth v. Santiago, 978 A.2d 349, 361
(articulating Anders requirements); Daniels, supra at 594 (providing that
counsel must inform client by letter of rights to proceed once counsel moves
to withdraw and append a copy of the letter to the petition). Appellant has
not filed a response.
As a result, we proceed to conduct an independent review to ascertain
if the appeal is indeed wholly frivolous. Commonwealth v. Flowers, 113
A.3d 1246, 1249 (Pa. Super. 2015).
In his Anders Brief, Appellant challenges the discretionary aspects of
his sentence. A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
-3- J-S40018-17
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).
In the instant case, Appellant met the first three elements by filing a
timely Notice of Appeal, properly preserving the issue in a Post-Sentence
Motion to modify his sentence, and including a Statement of Reasons Relied
Upon for Allowance of Appeal pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f)
Statement”) in his Anders Brief. As to whether Appellant has presented a
substantial question, we note:
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 (2) contrary to the fundamental norms which underlie the sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation omitted).
Here, Appellant avers the trial court failed to adequately consider as a
mitigating factor the length of time between his prior offense, which
occurred in 2003, and the instant one before imposing his sentence.
-4- J-S40018-17
Anders Brief at 13. An argument that the sentencing court failed to
consider mitigating factors in favor of a lesser sentence does not present a
substantial question appropriate for our review. Commonwealth v.
Hanson, 856 A.2d 1254, 1257-58 (Pa. Super. 2004). See also
Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (citing
Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en
banc) (concluding that an allegation that the sentencing court did not
adequately consider various factors is, in effect, a request that this court
substitute its judgment for that of the lower court in fashioning a defendant’s
sentence).
Moreover, we note that Appellant does not allege that the court
miscalculated his prior record score, that his sentence is outside the
statutory maximum, or that it is contrary to the fundamental norms
underlying the sentencing scheme. Neither does Appellant point to any
specific provision of the Sentencing Code that the sentencing court
ostensibly violated. Appellant’s bald assertion that his sentence is excessive
does not raise a substantial question. See Commonwealth v. Trippett,
932 A.2d 188, 201-03 (Pa. Super. 2007) (bald allegations of excessiveness
insufficient to permit discretionary review).
Accordingly, we conclude that Appellant has failed to raise a
substantial question as to the appropriateness of his sentence. We agree
with counsel that this claim is wholly frivolous. Further, after conducting our
-5- J-S40018-17
independent review as required pursuant to Flowers, supra, we discern no
non-frivolous issues to be raised on appeal. We therefore grant counsel’s
Petition to Withdraw and affirm the September 20, 2016 Judgment of
Sentence.
Judgment of Sentence affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/10/2017
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