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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

AARON GARDNER

                             Appellant               No. 1481 EDA 2016


          Appeal from the Judgment of Sentence Dated April 8, 2016
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0006452-2015


BEFORE: OTT, J., SOLANO, J., and JENKINS, J.

MEMORANDUM BY SOLANO, J.:                        FILED DECEMBER 12, 2016

        Appellant Aaron Gardner appeals from the judgment of sentence of 2

to 5 years’ incarceration, followed by 5 years’ probation, imposed after he

pled guilty to Criminal Solicitation1 to commit Involuntary Deviate Sexual

Intercourse with a complainant less than 16 years of age.2 With this appeal,

Appellant’s counsel has filed a petition to withdraw and an Anders3 brief,

stating that the appeal is wholly frivolous.   After careful review, we affirm

and grant counsel’s petition to withdraw.


____________________________________________


1
    18 Pa.C.S. § 902.
2
    18 Pa.C.S. § 3123(a)(7).
3
    Anders v. California, 386 U.S. 738 (1967).
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      On August 12, 2015, Appellant was charged with Involuntary Deviate

Sexual Intercourse (complainant less than 16 years of age) and related

offenses. On March 14, 2016, the Commonwealth moved to amend Count I

of the information to charge Appellant with Criminal Solicitation to commit

Involuntary Deviate Sexual Intercourse.      Appellant did not object to the

amendment, and the trial court allowed it.           Immediately thereafter,

Appellant entered an open plea of guilty to Count I of the amended

information. The Commonwealth withdrew the remaining charges pursuant

to the plea. Trial Ct. Op., 7/12/16, at 1-2; N.T., 3/14/16, at 8-9.

      On April 8, 2016, the trial court held a sentencing hearing, where it

noted Appellant’s criminal history score was zero and his offense gravity

level was eleven. Consequently, the sentencing guidelines recommended a

standard range sentence of 36-54 months’ incarceration. N.T., 4/8/16, at 3-

4. By way of mitigation, Appellant’s counsel discussed Appellant’s mental

health issues, including bipolar disorder, schizophrenia, and depression, and

noted Appellant’s acceptance of responsibility.     Id. at 4-8.       Appellant’s

counsel requested a sentence that would allow Appellant “to get the

treatment he needs” and stay close to his family. Id. at 9.                    The

Commonwealth      requested   a   sentence   with   a   minimum       period    of

incarceration no lower than the bottom of the standard guideline range of 36

months. Id. at 15.




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      At the end of the sentencing hearing, the trial court imposed a

sentence of 2 to 5 years’ incarceration, followed by 5 years’ probation. The

court explained its reasoning for imposing this sentence on the record as

follows:

      Before this morning[,] I had an opportunity to review the
      presentence investigation as well as the diagnostic reports
      attached to the presentence investigation, notably the
      psychosexual evaluation from Dr. Surbeck as well as the
      psychological evaluation of Dr. Germadagez. Such is made part
      of the case record. Given my review of these materials, I think
      mitigation has been offered to the Court. Mr. Gardner has
      suffered from mental health challenges for an appreciable period
      of time. I was frankly somewhat surprised by the number of
      hospitalizations that he’s had to date particularly given his age.
      I think somewhere these mental health challenges play the role
      in what brings Mr. Gardner to Court today. To what extent, I’m
      not certain. That’s not my area of expertise. I’m also mindful
      that this is Mr. Gardner’s first criminal Court contact, but
      recognize as I pointed out the guidelines do reflect a prior record
      score of zero, yet the sentencing commission has set a standard
      range of 36 to 54 months. I also think Mr. Gardner’s in dire
      need of offense specific treatment. I think that treatment is
      going to be made a bit more of a challenge than perhaps usual
      because of the overlay of [] mental health issues that Mr.
      Gardner, unfortunately is going to be facing a multitask
      situation. He’s going to have to deal with the mental health
      issue, stabilize the mental health issues and get those squared
      away as reasonably possible, probably before the offense specific
      treatment will be effective. While finding mitigation, I don’t find
      that I’ve been presented that which would warrant a complete
      deviation from the guidelines. I’m also mindful of the difference
      between the offense specific treatment programs offered at
      Delaware County Prison and the state system, most notably the
      length. I think the length of that offered at the state level of the
      18 months is more appropriate in these circumstances for the
      reasons indicated.

N.T., 4/8/16, at 20-21.




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       On April 15, 2016, while still represented by plea counsel, Appellant

filed a pro se petition for reconsideration of sentence. On April 18, 2016,

the trial court dismissed Appellant’s petition because “a defendant’s pro se

lodging when represented of-record by an attorney is a legal nullity which a

court cannot adjudicate.” Order, 4/18/16, at 2 n.3 (citing Commonwealth

v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007), appeal denied, 936

A.2d 40 (Pa. 2007)).

       On April 21, 2016, Appellant’s plea counsel filed a petition to withdraw.

At the hearing on that petition, Appellant stated that he did not object to the

relief sought in plea counsel’s petition, and the court granted it.        N.T.,

5/4/16, at 4-5.

       On May 9, 2016, Appellant, represented by new counsel, filed a timely

notice of appeal.4 On May 11, 2016, the trial court ordered Appellant to file a

Concise Statement of Matters Complained of on Appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b).          On May 27, 2016,

Appellant’s counsel timely filed the following statement: “In accordance with

____________________________________________


4
    Regardless of whether Appellant’s pro se motion for reconsideration of
sentence tolled the time for filing a notice of appeal, the appeal was timely.
At the earliest, Appellant was required to file a notice of appeal within 30
days of the imposition of sentence. See Pa.R.Crim.P. 720. May 8, 2016, the
30th day following the date of sentencing, was a Sunday. When computing a
filing period, “[if] the last day of any such period shall fall on Saturday or
Sunday . . . such day shall be omitted from the computation.” 1 Pa.C.S. §
1908. Therefore, Appellant’s notice of appeal, which was filed on Monday,
May 9, was timely.



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Pennsylvania Rule of Appellate Procedure 1925(c)(4), counsel informs the

Court that he intends to file an Anders brief with the Superior Court.” In its

subsequent opinion, the trial court set forth the procedural history of the

case and then stated, “After reviewing this matter’s salient record and in

light of defense counsel’s stated intent to lodge an Anders brief with the

Superior Court, further exposition by this court regarding Defendant

Gardner’s conviction is unnecessary.”      Trial Ct. Op. at 5 (footnote and

citations omitted).

      In the Anders brief, counsel raises a single issue for our review:

         Whether the prison term of 2 to 5 years is harsh and
         excessive under the circumstances?

Anders Brief at 1.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010). An Anders brief shall comply with the requirements set forth by the

Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009):

            [W]e hold that in the Anders brief that accompanies
         court-appointed counsel’s petition to withdraw, counsel
         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,


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         and/or statutes on point that have led to the conclusion
         that the appeal is frivolous.

Id. at 361.

      Counsel seeking to withdraw on direct appeal must meet the following

obligations to his or her client:

         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.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).      “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”       Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,

“this Court must 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)

(footnote and citations omitted).

      In this appeal, counsel’s September 8, 2016 letter to Appellant

indicates that counsel provided a copy of the Anders brief to Appellant and

advised Appellant of his right to either retain new counsel or proceed pro se


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on appeal, and to raise any issues he wished to bring to this Court’s

attention.5 Further, counsel’s Anders brief complies with prevailing law in

that counsel has provided a procedural and factual summary of the case with

references to the record. Counsel additionally advances relevant portions of

the record that arguably support Appellant’s claim on appeal.          Ultimately,

counsel cites his reasons and conclusion that this appeal is frivolous.

Anders Brief at 4-7.

        Appellant challenges the discretionary aspects of his sentence, which

are not appealable as of right. Commonwealth v. Colon, 102 A.3d 1033,

1042 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).6 Before

we exercise jurisdiction to reach the merits of Appellant’s issue, we must

determine:

        (1) whether the appeal is timely; (2) whether Appellant
        preserved his issue; (3) whether Appellant's brief includes a
        concise statement of the reasons relied upon for allowance of an
        appeal with respect to the discretionary aspects of his sentence;
        and (4) whether the concise statement raises a substantial


____________________________________________


5
    Appellant did not file an additional pro se or counseled brief with this Court.
6
   “Upon entry of a guilty plea, a defendant generally waives all defects and
defenses except those concerning the validity of the plea, the jurisdiction of
the trial court, and the legality of the sentence imposed. However, when the
plea agreement is open, containing no bargain for a specific or stated term
of sentence, the defendant will not be precluded from appealing the
discretionary aspects of his sentence.” Commonwealth v. Guth, 735 A.2d
709, 710 n.3 (Pa. Super.) (citations omitted), appeal denied, 743 A.2d 915
(Pa. 1999).



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       question regarding        the    sentence’s   impropriety   under   the
       Sentencing Code.

Id. at 1042-43 (citation omitted). Only if the appeal satisfies each of these

four requirements may we proceed to decide the substantive merits of the

case. Id. at 1043.

       In the current case, Appellant filed a timely notice of appeal. He also

filed a post-sentence motion seeking reconsideration of his sentence.

Although he filed that pro se motion while represented by counsel, his

attorney filed a motion to withdraw less than a week later and never filed a

post-sentence motion on Appellant’s behalf.          Moreover, by the time of the

hearing on counsel’s motion to withdraw, the period for filing a post-

sentence motion had expired. Under these circumstances, we decline to find

waiver. See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super.

2015) (declining to find waiver where appellant filed pro se post-sentence

motion, counsel did not file one, and court did not appoint new counsel until

after deadline for filing post-sentence motion).

        Additionally, counsel’s Anders brief contains a concise statement of

the reasons for which Appellant seeks allowance of an appeal, in compliance

with Rule 2119(f) of the Rules of Appellate Procedure. See Anders Brief at

4-5.7 The statement sets forth the claim that the sentence is “harsh and

____________________________________________


7
  Although the statement is labeled “Petition for Allowance of Appeal from
the Discretionary Aspects of the Judgement of Sentence,” without reference
(Footnote Continued Next Page)


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excessive under the circumstances.” Id. at 4. As counsel recognizes, “[a]

bald assertion that a sentence is ‘harsh and excessive’” does not raise a

substantial question.       Id. (citing Commonwealth v. Giordano, 121 A.3d

998, 1008 (Pa. Super. 2015), appeal denied, 131 A.3d 490 (Pa. 2016)).8

Appellant’s statement therefore fails to raise a substantial question under

our case law.

      Even if Appellant had raised a substantial question, however, we would

find his claim to be meritless. We apply the following standard of review:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

      This Court has held that “where the sentencing court imposed a

standard-range sentence with the benefit of a pre-sentence report, we will
                       _______________________
(Footnote Continued)

to Rule 2119(f), we conclude that Appellant substantially complied with the
rule. See Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super.
2011) (finding substantial compliance although the statement was not
labeled as a Rule 2119(f) statement).
8
 Counsel notes that a claim that a sentence is “so manifestly excessive as to
constitute too severe a punishment” does raise a substantial question.
Counsel concludes, however, “[t]hat is not the case here.” Anders Brief at
5. We agree.



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not consider the sentence excessive.” Commonwealth v. Corley, 31 A.3d

293, 298 (Pa. Super. 2011); see also Commonwealth v. Moury, 992 A.2d

162, 171 (Pa. Super. 2010) (“where a sentence is within the standard range

of the guidelines, Pennsylvania law views the sentence as appropriate under

the Sentencing Code”).        Under such circumstances, “we can assume the

sentencing    court   ‘was    aware     of   relevant    information    regarding   the

defendant’s    character     and   weighed     those     considerations   along     with

mitigating    statutory    factors.’”    Corley,    31     A.3d    at   298     (quoting

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).

      Here, Appellant’s sentence is in the mitigated range of the Sentencing

Guidelines. Further, in imposing the sentence, the trial court considered a

presentence report. N.T. 4/8/16, at 20. In light of these circumstances, we

conclude that Appellant’s sentence was not excessive. See Corley, 31 A.3d

at 298.

      Based on the foregoing, we agree with appellate counsel that the

sentencing issue raised by Appellant lacks merit.             In addition, we have

reviewed the certified record consistent with Flowers, 113 A.3d at 1250,

and   have     discovered     no    additional     arguably       meritorious    issues.

Accordingly, we grant appellate counsel’s petition to withdraw and affirm the

trial court’s judgment of sentence.

      Judgment of sentence affirmed.              Petition to withdraw as counsel

granted.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




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