J-S64020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRADLEY AARON AVERY,

Appellant No. 76 MDA 2017

Appeal from the Judgment of Sentence December 2, 2016

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0000864-2016, CP-40-CR-0001507-

2016, CP-40-CR-0004056-2015

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 20, 2017

Appellant, Bradley Aaron Avery, appeals from the judgment of 

sentence entered on December 2, 2016, in the Luzerne County Court of 

Common Pleas. Appellant’s counsel has filed an application to withdraw his 

representation and a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which 

govern a withdrawal from representation on direct appeal. Appellant has not 

filed a response to counsel’s petition. After careful review, we grant 

counsel’s petition to withdraw and affirm the judgment of sentence.

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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The criminal activities underlying the instant appeal occurred between 

August of 2015 and February of 2016. The crimes charged at Luzerne 

County Docket Number 4056 of 2015 stemmed from Appellant’s 

participation in a theft and physical altercation at Custom Computers Store. 

Affidavit of Probable Cause, 10/23/15. The charges at Luzerne County 

Docket Number 864 of 2016 involved Appellant’s theft from Maines Food 

Store of frozen lobster tails, valued at more than $300.00. Affidavit of 

Probable Cause, 1/21/16. Finally, the crimes charged at Luzerne County 

Docket Number 1507 of 2016 concerned Appellant’s participation in the 

home-invasion robbery of an occupied house. In the home invasion,

Appellant and a cohort robbed the occupants at gunpoint, threatened to 

shoot them, and bound their wrists and ankles prior to fleeing with firearms 

they stole from the residence. Affidavit of Probable Cause, 2/17/16. 

The trial court set forth the procedural history of this case as follows:

On September 9, 2016 [Appellant] pled guilty on number 1507 

of 2016 to Count 1, Burglary, graded as a felony of the first 

degree (F1); Count 2, Robbery, graded as a felony of the first 

degree (F1); Count 3, Robbery, graded as a felony of the first 

degree (F1); and Count 4, Conspiracy Burglary, graded as a 

felony of the first degree (F1). Thereafter, on September 12, 

2016, [Appellant] pled guilty on number 4056 of 201[5] to Count 

1, Robbery, graded as a felony of the third degree (F3) and to 

Count 1, Retail Theft, graded as a misdemeanor of the first 

degree (M1) on Criminal Information No. 864 of 2016. On 

December 2, 2016, [Appellant] was sentenced as follows:

On Criminal Information 1507 of 2016, Count 2, 

Robbery, graded as a felony of the first degree (F1); 

offense gravity score ten (10) and prior record score 

zero (0), a standard range of twenty-two (22) to 
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thirty-six (36) months. [Appellant] was sentenced to 

a period of incarceration of not less than twenty-four 

(24) months nor more than forty-eight (48) months, 

plus, one (1) year probation.

On Criminal Information No. 1507 of 2016, 

Count 3, Robbery, graded as a felony of the first 

degree (F1); offense gravity score of ten (10) and 

prior record score zero (0); standard range of 

twenty-two (22) to thirty-six (36) months. 

[Appellant] was sentenced to a period of 

incarceration of not less than twenty-four (24) 

months, nor more than forty-eight (48) months, 

followed by one[-]year probation, consecutive to 

1507 of 2016, Count 2.

On Criminal Information No. 1507 of 2016, 

Count 1, Burglary, graded as a felony of the first 

degree (F1); offense gravity score nine (9) and prior

record score of zero (0), standard range of twelve 

(12) to twenty-four (24) months. [Appellant] was 

sentenced to a period of incarceration of not less

than twelve (12) months, nor more than twenty-four 

(24) months consecutive to 1507 of 2016, Count 3.

On Criminal Information No. 1507 of 2016, 

Count 4, Criminal Conspiracy [to] commit Burglary, 

graded as a felony of the first degree (F1); offense 

gravity score eight (8); prior record score of zero 

(0); standard range of nine (9) to sixteen (16) 

months. [Appellant] was sentenced to a period of 

incarceration of not less than twelve (12) months,

nor more than twenty-four (24) months concurrent 

to 1507 of 2017, Count 3.

On Criminal Information No. 4056 of 201[5], 

Count 1, Criminal Conspiracy to commit Burglary, 

graded as a felony of the third degree (F3); offense

gravity score of five (5); prior record score of zero 

(0); standard range of [restorative sanctions “RS”)]

to nine (9) months. [Appellant] was sentenced to a 

period of incarceration of not less than six (6) 

months, nor more than twelve (12) months, followed
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by one (1) year probation, consecutive to 1507 of 

2017.

On Criminal Information No. 864 of 2016, 

Criminal Conspiracy to Commit Retail Theft, graded 

as a misdemeanor of the first degree (M1); offense

gravity score of two (2); prior record score of zero 

(0); standard range is RS. [Appellant] was sentenced 

to a period of probation for one (1) year consecutive 

to 4056 of 2017.

Trial Court Opinion, 6/20/17, at 1-3. These sentences resulted in an 

aggregate sentence of five and one-half to eleven years of incarceration 

followed by four years of probation.

Appellant filed a timely post-sentence motion that was denied on 

December 12, 2016, and filed a timely notice of appeal on January 3, 2017. 

Both Appellant and the trial court have complied with Pa.R.A.P. 1925(b).1

As noted, counsel has filed a petition to withdraw representation. 

Before we address the questions raised on appeal, we must resolve appellate 

counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d 

____________________________________________

1 The record reflects that on January 23, 2017, the trial court ordered 

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal within twenty-one days. However, counsel for Appellant later alleged 

that he was not aware of this order until May 31, 2017. Pa.R.A.P. 1925(b) 

Statement, 6/1/17, at ¶¶ 5-6. Counsel filed a Rule 1925(b) statement on 

June 1, 2017, which the trial court accepted and addressed in a Pa.R.A.P. 

1925(a) opinion. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. 

Super. 2009) (“If there has been an untimely filing [of a Pa.R.A.P. 1925(b) 

statement], this Court may decide the appeal on the merits if the trial court 

had adequate opportunity to prepare an opinion addressing the issues being 

raised on appeal.”).
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1030 (Pa. Super. 2013) (en banc). There are procedural and briefing 

requirements imposed upon an attorney who seeks to withdraw on direct 

appeal. The procedural mandates are that counsel must:

1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; 2) furnish a copy 

of the brief to [Appellant]; and 3) advise [Appellant] that he or 

she has the right to retain private counsel or raise additional 

arguments that [Appellant] deems worthy of the court’s 

attention.

Id. at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within the petition 

to withdraw, counsel averred that he conducted a conscientious review of 

the record and pertinent legal research. Following that review, counsel 

concluded that the present appeal is frivolous. Counsel sent Appellant a 

copy of the Anders brief and petition to withdraw, as well as a letter which 

is attached to the petition to withdraw. In the letter, counsel advised 

Appellant that he could represent himself or that he could retain private 

counsel.

We now examine whether the brief satisfies the Supreme Court’s 

dictates in Santiago, which provide 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, and/or statutes 
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on point that have led to the conclusion that the appeal is 

frivolous.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

Counsel’s brief is substantially compliant with Santiago.

2

 The brief 

sets forth the procedural history and facts of this case and outlines pertinent 

case authority. We thus conclude that the procedural and briefing 

requirements for withdrawal have been met.

Counsel presents the following issue for our review: “Whether the trial 

court abused its discretion in sentencing Appellant[?]” Anders Brief at 1. 

Appellant’s sole issue challenges the discretionary aspects of his sentence. 

It is well settled that there is no absolute right to appeal the discretionary 

aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. 

Super. 2006). Rather, where an appellant challenges the discretionary 

aspects of a sentence, the appeal should be considered a petition for 

allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. 

Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

____________________________________________

2 We note that the Anders brief does not contain specific citations to the 

record. However, we conclude that in this instance, the deficiency does not 

pose an impediment to our review, and we shall proceed with our discussion.
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[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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)).

Whether a particular issue constitutes a substantial question about the 

appropriateness of a sentence is a question to be evaluated on a case-bycase basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001). As to what constitutes a substantial question, this Court does not 

accept bald assertions of sentencing errors. Commonwealth v. Malovich, 

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the 

reasons the sentencing court’s actions violated the Sentencing Code. Id.

Herein, the first three requirements of the four-part test are met:

Appellant brought an appropriate appeal, raised the challenge in a postsentence motion, and included in his appellate brief the necessary concise 

statement of the reasons relied upon for allowance of appeal pursuant to 

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a 

substantial question requiring us to review the discretionary aspects of the 

sentence imposed by the trial court.
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Appellant asserts that the sentencing court abused its discretion by 

sentencing him at the “high-end” of the standard range of the sentencing 

guidelines and by running some of the sentences consecutively. Anders

Brief at 6. However, as previously stated, we do not accept bald assertions 

of sentencing errors. Malovich, 903 A.2d at 1252 (citing Commonwealth 

v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)). “Rather, Appellant must 

support his assertions by articulating the way in which the court’s actions 

violated the sentencing code.” Id. Thus, to the extent Appellant’s claim is a 

bald allegation that the trial court sentenced him at the high-end of the 

sentencing guidelines, we conclude that he has not presented a substantial 

question for our review. Additionally, it is well settled that claims based on 

the imposition of consecutive, as opposed to concurrent, sentences do not 

raise a substantial question. Commonwealth v. Zirkle, 107 A.3d 127, 133 

(Pa. Super. 2014). However, we point out that a substantial question may 

be found where a defendant receives consecutive sentences within the 

guideline ranges if the case involves circumstances where the application of 

the guidelines would be clearly unreasonable, resulting in an excessive 

sentence. Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super.

2013). Nevertheless, Appellant did not assert that the consecutive nature of 

the sentences resulted in an unreasonable or manifestly excessive sentence. 

Accordingly, we conclude that Appellant has failed to raise a substantial 

question for our review.
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Assuming, arguendo, that Appellant had presented a substantial 

question by asserting that the consecutive nature of the sentences resulted

in an excessive sentence pursuant to Dodge, we would determine that the 

issue lacks merit. It is well settled that when imposing a sentence, a court is 

required to consider the particular circumstances of the offense and the 

character of the defendant. Moury, 992 A.2d at 171. Moreover, when the 

trial court has the benefit of a pre-sentence investigation report (“PSI”), we 

can assume the court was aware of relevant information regarding the 

defendant’s character and weighed those considerations along with any 

mitigating statutory factors. Id. “Further, where a sentence is within the 

standard range of the guidelines, Pennsylvania law views the sentence as 

appropriate under the Sentencing Code.” Id. Additionally, the Sentencing 

Code affords the trial discretion to impose sentences concurrently or 

consecutively. 42 Pa.C.S. § 9721(a).

In its opinion, the trial court noted that it had the benefit of a PSI, it 

stated its consideration of the relevant sentencing factors, and it provided its 

rationale for the standard-range sentence imposed: 

THE COURT: Well, I’ve had the opportunity to 

accept the guilty plea in this matter, the guilty plea 

[w]as knowingly and voluntarily entered. I’ve 

reviewed the presentence investigation, and -- and 

[Appellant] has a zero prior record score. Up until 

this period in his life, there was -- there was pretty 

much nothing. And then, there was everything.

I appreciate that [Appellant] wants to apologize to

the homeowners, but they are not homeowners, they
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were victims. They’re sitting in their house, watching

TV, when a knock on their door leaves them with

individuals with bandanas over their mouth[s],

sunglasses, gloves; who come into the home and

terrorize them with weapons and tie them up and 

taunts them. It’s just not homeowners. He did not 

break into somebody’s home when they weren’t 

there. They were victims of this horrific crime.

And then there are the victims of the robbery. When 

[Appellant] and the Co-Defendants go into the --

store, to Custom Computers, and attempt to take 

items and -- then leave and fight and go. And at the 

least of it is Maine Source, where some frozen 

lobster tails are shoved down someone’s pants. But 

these crimes weren’t just crimes to property or to 

empty homes, there were people involved.

(Sentencing Transcript, 12/2/16, p. 10-11).

Here, the Sentencing Court has clearly and expressly 

complied with the requirements of 42 Pa.C.S. § 9721(b) by 

imposing a sentence that 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 on the community, and the 

rehabilitative needs of [Appellant]. Id. § 9721(b). The record 

demonstrates a complete review of [Appellant’s] past, the crimes 

committed and the impact on society.

Trial Court Opinion, 6/20/17, at 7.

After review, we conclude that the trial court properly reviewed the 

PSI, the facts of the case, Appellant’s background, the factors to be 

considered pursuant to 42 Pa.C.S. § 9721(b), and explained its reasons for 

the sentence imposed. Accordingly, had we reached this issue, we would 

have concluded that there was no error of law or abuse of discretion in the 

sentence imposed. See Commonwealth v. Zeigler, 112 A.3d 656, 662 

(Pa. Super. 2015) (holding that a sentence was not manifestly excessive
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where the trial court considered the PSI, the details of the crime, and 

explained its reasons for the sentence it imposed).

Lastly, we note that we have independently reviewed the record in 

order to determine whether there are any non-frivolous issues present in 

this case that Appellant may raise. Commonwealth v. Harden, 103 A.3d 

107, 111 (Pa. Super. 2014). Having determined that there are no 

meritorious issues, we grant Appellant’s counsel permission to withdraw, and 

we affirm the judgment of sentence.

Petition to withdraw as counsel is granted. Judgment of sentence 

affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/20/2017