J-S20012-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY LEE HAMM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 104 MDA 2024

Appeal from the Judgment of Sentence Entered December 11, 2023

In the Court of Common Pleas of Bradford County Criminal Division at 

No(s): CP-08-CR-0000593-2023

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED AUGUST 15, 2024

Appellant, Timothy Lee Hamm, appeals from the judgment of sentence 

entered on December 11, 2023, following his guilty plea to disorderly conduct 

and possession of a controlled substance.1In this direct appeal, Appellant's 

counsel has filed both a petition for leave to withdraw as counsel and an 

accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967) 

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude 

that Appellant's counsel has complied with the procedural requirements 

necessary to withdraw. Moreover, after independently reviewing the record, 

we conclude that the instant appeal is wholly frivolous. Therefore, we grant 

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 5503(a)(4) and 35 P.S. § 780-113(a)(16), respectively.
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counsel's petition for leave to withdraw and affirm Appellant's judgment of 

sentence.

We briefly summarize the facts of this case as follows. According to the 

criminal information filed in this matter, the Commonwealth alleged that on 

July 26, 2023, while police officers attempted to enforce a warrant for 

Appellant’s arrest in an unrelated matter, Appellant resisted. In a search 

incident to Appellant’s eventual arrest, the police recovered 

methamphetamine and drug paraphernalia from Appellant’s person. On 

November 2, 2023, Appellant entered an open guilty plea to the 

aforementioned charges. On December 11, 2023, following a hearing, the 

trial court sentenced Appellant to six to 12 months of incarceration for 

disorderly conduct, followed by a consecutive term of 16 to 36 months of 

incarceration for possession of a controlled substance. The trial court further 

ordered Appellant’s sentence to run consecutive to his outstanding sentences 

in unrelated matters. This timely appeal resulted.2

On appeal, Appellant's counsel filed a petition for leave to withdraw and 

counsel accompanied this petition with an Anders brief. Before reviewing the 

merits of this appeal, this Court must first determine whether counsel has 

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2 Appellant filed a timely post-sentence motion on December 19, 2023, 

asserting that his aggregate sentence of 22 to 48 months was excessive and 

unduly harsh. By order entered on December 26, 2023, the trial court denied 

Appellant’s post-sentence motion. On January 19, 2024, Appellant filed a 

notice of appeal. On January 26, 2024, the trial court directed Appellant to 

file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). Appellant complied timely. On February 13, 2024, the 

trial court issued an opinion pursuant to Pa.R.A.P. 1925(b).
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fulfilled the necessary procedural requirements for withdrawing as counsel. 

Commonwealth v. Miller, 715 A.2d 1203, 1207 (Pa. Super. 1998).

To withdraw under Anders, counsel must satisfy certain technical 

requirements. First, counsel must “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.” Miller, 715 A.2d at 1207. 

Second, counsel must file an Anders brief, in which counsel:

(1) provide[s] a summary of the procedural history and facts, with 

citations to the record; (2) refer[s] to anything in the record that 

counsel believes arguably supports the appeal; (3) set[s] forth 

counsel's conclusion that the appeal is frivolous; and (4) state[s] 

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. Finally, counsel must furnish a copy of the 

Anders brief to his or her client and advise the client “of [the client's] right to 

retain new counsel, proceed pro se or raise any additional points worthy of 

this Court's attention.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. 

Super. 2007) (citation omitted).

If counsel meets all of the above 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; see also 

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en 

banc) (holding that the Anders procedure requires this Court to review “the 
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entire record with consideration first of the issues raised by counsel .... [T]his 

review does not require this Court to act as counsel or otherwise advocate on 

behalf of a party. Rather, it requires us only to conduct a review of the record 

to ascertain if[,] on its face, there are non-frivolous issues that counsel, 

intentionally or not, missed or misstated. We need not analyze those issues 

of arguable merit; just identify them, deny the motion to withdraw, and order 

counsel to analyze them[.]”). It is only when all of the procedural and 

substantive requirements are satisfied that counsel will be permitted to 

withdraw.

Here, counsel complied with all of the above procedural obligations.3

We must, therefore, review the entire record and analyze whether this appeal 

is, in fact, wholly frivolous. Our analysis begins with the claim raised in the 

Anders brief, which is as follows:

I. Was the sentence imposed on [Appellant] excessive in light 

of [his] circumstances, particularly with regard[] to 

[Appellant’s] treatment, rehabilitative needs, and prior 

criminal history?

Anders Brief at 3.

More specifically, “Appellant complains that [his] sentence was 

excessive because the court failed to take into account his rehabilitative 

needs, goals upon parole[,] and [the] timeframe since his last possession of 

a controlled substance” which “was about 20 years prior.” Id. at 8. Appellant 

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3

 Appellant has not responded to the petition to withdraw and/or the Anders

brief.
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concedes, however, that his “minimum sentence ... was within the standard 

range of the sentencing guidelines” and that the trial “court had access to a 

pre-sentence investigation [report (PSI report)] which it referred to and 

incorporated into the sentencing decision.” Id. at 11; see also id. at 13 

(“[T]he sentence that Appellant received was within the sentencing guidelines, 

just at the top of the standard range.”).

Appellant's claim challenges the discretionary aspects of his sentence. 

See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that the 

trial court erred in imposing an excessive sentence is a challenge to the 

discretionary aspects of a sentence). With respect to our standard of review, 

we have held that “sentencing is a matter vested in the sound discretion of 

the sentencing judge, whose judgment will not be disturbed absent an abuse 

of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 

2001). Moreover, pursuant to statute, Appellant does not have an automatic 

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 

9781(b). Instead, Appellant must petition this Court for permission to appeal 

the discretionary aspects of his sentence. Id.

This Court has previously explained:

It is well-settled that “the right to appeal a discretionary aspect of 

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 

1215, 1220 (Pa. Super. 2011). Rather, where an appellant 

challenges the discretionary aspects of a sentence, we should 

regard his[, or her,] appeal as a petition for allowance of appeal. 

Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 

2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 

(Pa. Super. 2010):
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An appellant challenging the discretionary aspects of his[, or her,] 

sentence must invoke this Court's jurisdiction by satisfying a 

four-part test:

We conduct a four-part analysis to determine: (1) whether 

appellant [ ] 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, [see] 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).

[Moury, 992 A.2d] at 170 [(citation omitted)]. We evaluate on a 

case-by-case basis whether a particular issue constitutes a 

substantial question about the appropriateness of sentence. 

Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001).

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original 

brackets omitted).

Here, Appellant complied with the first three requirements as set forth 

above. Appellant also raises a substantial question. See Commonwealth v. 

Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“[T]his Court has held that an 

excessive sentence claim—in conjunction with an assertion that the court 

failed to consider mitigating factors—raises a substantial question.”). 

This Court has previously determined:

When imposing a sentence, the sentencing court must consider 

the factors set out in 42 Pa.C.S.A. § 9721(b), including the 

protection of the public, the gravity of the offense in relation to 

the impact on the victim and the community, and the 

rehabilitative needs of the defendant. Additionally, the trial court 

must consider the sentencing guidelines. Where a PSI report 

exists, this Court will presume that the sentencing judge was 

aware of relevant information regarding the defendant's character 
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and weighed those considerations along with mitigating statutory 

factors.

Generally, Pennsylvania law affords the sentencing court 

discretion to impose its sentence concurrently or consecutively to 

other sentences being imposed at the same time or to sentences 

already imposed. An appellant is not entitled to a volume discount 

on his multiple convictions by the imposition of concurrent 

sentences.

The balancing of the sentencing factors is the sole province of the 

sentencing court, which has the opportunity to observe the 

defendant and all witnesses firsthand. In conducting appellate 

review, this Court cannot reweigh sentencing factors and impose 

judgment in place of the sentencing court where the lower court 

was fully aware of all mitigating factors.

Commonwealth v. Lawrence, 313 A.3d 265, 286 (Pa. Super. 2024) 

(internal citations, quotations, and original brackets omitted); see also 

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (citation 

omitted) (The sentencing court may merely choose not to give the proposed 

mitigating factors much weight and decide that the facts of the case do not 

warrant imposition of a sentence lower than the standard range, and, on 

appeal, we cannot re-weigh the sentencing factors and impose our judgment 

in the place of the sentencing court.). Moreover, when a defendant is 

sentenced within the standard sentencing guideline range for each offense, 

this Court shall vacate the sentence only in “circumstances where the 

application of the guidelines would be clearly unreasonable.” 42 Pa.C.S.A. 

§ 9781(c)(2). 

Upon appellate review, we consider:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.
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(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

Here, the trial court determined that

[a]t the time of sentencing, [the trial] court had a [PSI report] 

and sentencing guideline form. The sentence for each conviction 

falls within the standard range of the sentencing guidelines. [The 

trial] court reviewed the [PSI report.] [Thus, the trial] court 

[concluded it] considered all appropriate sentencing factors and 

considerations when it incorporated the [PSI report] into its 

reasons for sentencing. 

Trial Court Opinion, 2/13/2024, at 2.

Here, at sentencing, there is no dispute that the trial court stated that 

it reviewed the PSI report and set forth the standard-range guidelines for each 

convicted offense. N.T., 12/11/2023, at 1. Before imposing sentence, 

defense counsel noted that Appellant’s criminal history “stems from addiction” 

and that Appellant planned to “get into a rehab facility upon release.” Id. at 

2. Appellant claimed that he was interested in a sober, work-release program 

and eventually moving in with his mother in order “to stay clear” of “old 

habits[.]” Id. Appellant further averred that he committed the offenses at 

issue when “his sister and his grandmother had just passed away.” Id. at 3. 

Counsel claimed that Appellant was enrolled in prison programs “such as anger 

management and other work[-]related classes to insure that when he is 

released he will be successful in getting employment and maintaining [] 
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sobriety.” Id. Appellant further stated that “it was his goal to be able to 

rekindle [] relationships” with his children and “be able to be a very active 

father in their lives.” Id. Ultimately, counsel for Appellant asked the trial 

court to sentence Appellant “on the lowest end” of the standard range of the 

sentencing guidelines. Id. at 4. Thereafter, the trial court reviewed 

Appellant’s PSI report on the record, specifically noting that Appellant’s 

criminal history from 2002 through 2020 consisted of multiple convictions 

including harassment, possession of a controlled substance, possession of 

contraband, disorderly conduct, three convictions for simple assault, and four 

convictions for driving under the influence of alcohol/controlled substances. 

Id. at 7-8. The trial court incorporated the PSI report into the record and

noted that the sentences imposed were within the standard range of the 

sentencing guidelines. Id. at 10. The trial court determined that Appellant’s 

“extremely lengthy criminal record” coupled with the fact that he was “on state 

parole when these offenses occurred” warranted consecutive sentences, that 

when aggregated, totaled 22 to 48 months of incarceration. Id. The trial 

court also imposed this sentence consecutively to any other sentence already 

imposed. Id.

Upon review, we agree with the trial court’s assessment and discern no 

abuse of discretion or error of law in sentencing Appellant. The trial court was 

aware of the sentencing guidelines and considered a PSI report. As such, we 

presume the trial court was aware of relevant information regarding 

Appellant’s character and weighed those considerations along with mitigating 
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statutory factors. Moreover, Appellant also offered additional mitigation 

evidence, which the trial court contemplated. The trial court considered the 

protection of the public, the gravity of the offenses at issue, and the 

rehabilitative needs of the defendant. Considering Appellant’s criminal history 

spanning decades and that prior parole and probation supervision proved

ineffective for Appellant, the trial court ultimately determined that 

incarceration was essential because more lenient rehabilitation did not protect

the public. Moreover, Appellant was not entitled to a volume discount for his 

crimes and there was no abuse of discretion in sentencing Appellant to 

consecutive terms of imprisonment. Furthermore, in this case, we conclude 

that the application of the sentencing guidelines was reasonable under 

Section 9781(c)(2). We simply cannot re-weigh the sentencing factors and 

impose our judgment in the place of the sentencing court. As such, there is 

no merit to Appellant’s discretionary sentencing claim. 

We independently considered the issues raised within counsel's Anders

brief and we have determined that the claim presented therein is frivolous. In 

addition, after an independent review of the entire record, we see nothing that 

might arguably support this appeal. The appeal is, therefore, wholly frivolous. 

Accordingly, we affirm Appellant's judgment of sentence and grant counsel's 

petition for leave to withdraw.

Petition for leave to withdraw granted. Judgment of sentence affirmed. 

Jurisdiction relinquished.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 08/15/2024