J-S41019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT J. DRUST, JR.

Appellant No. 2155 MDA 2014

Appeal from the Judgment of Sentence September 5, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0000384-2014,

CP-40-CR-0001505-2014, CP-40-CR-0002326-2013,

CP-40-CR-0003623-2013 CP-40-CR-0003624-2013

BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED JULY 06, 2015

Robert J. Drust, Jr. appeals from his judgment of sentence, entered in 

the Court of Common Pleas of Luzerne County, after entering open guilty 

pleas to one count each of terroristic threats, resisting arrest, possession of 

a controlled substance, materially false written statement for purchase, 

delivery or transfer of a firearm, and possession with intent to deliver a 

controlled substance, two counts each of possession of drug paraphernalia, 

and recklessly endangering another person, and three counts each of 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S41019-15

- 2 -

harassment, and simple assault.1 Drust’s counsel also seeks to withdraw 

pursuant to the dictates of Anders v. California, 386 U.S. 738 (1967), 

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

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Upon review, 

we grant counsel’s petition to withdraw and affirm Drust’s judgment of 

sentence. 

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

[Drust] entered guilty pleas under docket numbers 2326, 

3623 and 3624 of 2013 on March 17, 2014 and entered 

guilty pleas under docket numbers 384 and 1505 of 2014 

on July 7, 2014. A Pre-Sentence Investigation (PSI) was 

completed by the Luzerne County Adult Probation and 

Parole Department, and a sentencing hearing was held on 

September 5, 2014 when we imposed an aggregate period 

of incarceration of [Drust] for a minimum of twenty (20) 

months to a maximum of forty (40) months to be served in 

a state correctional institution. [Drust] was subsequently 

advised of his post-sentence rights and remanded. On 

September 11, 2014, [Drust] filed a Post Sentence 

Motion/Request to Modify Sentence which we denied by 

Order of September 30, 2014. 

Trial Court Opinion, 12/30/14, at 2-3.

On October 28, 2014, Drust filed a timely notice of appeal. Drust filed 

a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 

1925(b), on December 4, 2014. In his 1925(b) statement appellate counsel 

____________________________________________

1

 18 Pa.C.S. § 2706(a)(1); 18 Pa.C.S. § 2701(a)(1); 18 Pa.C.S. § 5104; 35 

Pa.C.S. § 780-113(a)(32); 18 Pa.C.S. § 2705; 18 Pa.C.S. § 2709(a)(1); 18 

Pa.C.S. § 2702(a)(4).
J-S41019-15

- 3 -

indicated that “there are no-non-frivolous issues which can be raised on 

appeal,” and further indicated her intent to file an Anders brief with this 

Court. The Commonwealth indicated to the trial court that it would not file a 

response to Drust’s 1925(b) statement and, instead, agreed with appellate 

counsel that any appeal is entirely frivolous and without merit. 

“When faced with a purported Anders brief, this Court may not 

review the merits of the underlying issues without first passing on the 

request to withdraw.” Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. 

Super. 2005). Furthermore, counsel must comply with certain mandates 

when seeking to withdraw pursuant to Anders, Santiago, and McClendon. 

These mandates are not overly burdensome and have been summarized as 

follows:

Direct appeal counsel seeking to withdraw under Anders must 

file a petition averring that, after a conscientious examination of 

the record, counsel finds the appeal to be wholly frivolous. 

Counsel must also file an Anders brief setting forth issues that 

might arguably support the appeal along with any other issues 

necessary for the effective appellant presentation thereof.

Anders counsel must also provide a copy of the Anders petition 

and brief to the appellant, advising the appellant of the right to 

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

worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of 

Anders, this Court will deny the petition to withdraw and 

remand the case with appropriate instructions (e.g., directing 

counsel either to comply with Anders or file an advocate’s brief 

on Appellant’s behalf).
J-S41019-15

- 4 -

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations 

omitted). 

Here, counsel has provided the facts and procedural history of the 

case, and avers that, after thorough review of the record, she finds the 

appeal to be wholly frivolous, and states her reasons for this conclusion. 

Counsel provided a copy of the petition and Anders brief to Drust, advised 

him of his right to retain new counsel or proceed pro se, and raise any 

additional points he deems worthy of this Court’s attention. Accordingly, we 

find counsel has met the requirements of Anders, McClendon and 

Santiago. 

Once counsel has satisfied the above requirements, this Court 

conducts its own review of the proceedings and renders an independent 

judgment as to whether the appeal is, in fact, wholly frivolous. 

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

In his Anders brief, the sole issue raised by counsel is whether Drust’s 

sentence of 20 to 40 months’ incarceration at a state correctional institution 

was harsh and excessive when he was found eligible for the Luzerne County 

DA/RIP Program.2 Drust’s allegation that his sentence was harsh and 

excessive is a challenge to the discretionary aspect of his sentence, which is 

not appealable as of right. Rather, an appellant challenging the sentencing 

____________________________________________

2 Drug and Alcohol Treatment-based Restrictive Intermediate Punishment.
J-S41019-15

- 5 -

court’s discretion must invoke the Court’s jurisdiction by satisfying a fourpart test. Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).

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. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006).

Here, Drust filed a timely notice of appeal, and has preserved his claim 

by raising it at his sentencing hearing and in his Rule 1925(b) statement. 

Finally, Drust’s counsel has included in his Anders brief a statement 

pursuant to Pa.R.A.P. 2119(f), claiming that the trial court imposed an 

excessive sentence. 

Judicial review of the discretionary aspects of a sentence is granted 

only upon a showing that there is a substantial question that the sentence 

was inappropriate and contrary to the fundamental norms underlying the 

Sentencing Code. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 

1987). 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 in the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.” 
J-S41019-15

- 6 -

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en 

banc). 

Drust argues that he raises a substantial question as to whether the 

imposition his sentence of 20 to 40 months’ incarceration was excessive 

because the trial court failed to consider his past and current health history. 

Anders Brief at 5-6. Specifically, he argues that he should have been given 

a chance in the local RIP program because he had not had any recent 

Indirect Criminal Contempt (ICC) violations. N.T. Sentencing, 9/5/14 at 8. 

During his sentencing hearing, Drust cited to his traumatic brain 

injury, impulse control issues, and the dissolution of his marriage as reasons 

for his offenses occurring within such a short period of time. N.T. 

Sentencing, 9/5/14, at 9-7. Drust also asked the trial court to consider his 

current treatment and ability to stay drug free. Id. at 2-9. The 

Commonwealth, on the other hand, emphasized the serious nature of the 

offenses that occurred during that time, including Drust threatening the 

victim with the use of a firearm, as well as Drust’s ongoing and serious drug 

problem. Id. at 9-10. 

An allegation that the sentencing court failed to consider or did not 

adequately consider certain factors does not raise a substantial question that 

the sentence imposed was inappropriate so as to justify allowance of 

appellate review. Commonwealth v. Wagner, 702 A.2d 1084 (Pa. Super. 

1997); See also Commonwealth v. Petacci, 764 A.2d 582 (Pa. Super. 

2000) (citation omitted) ("A [bald] claim of excessiveness of sentence does 
J-S41019-15

- 7 -

not raise a substantial question so as to permit appellate review where the 

sentence is within the statutory limits."); Commonwealth v. Mobley, 581 

A.2d 949, 952 (Pa. Super. 1990) (claim that sentence imposed for narcotics 

offense failed to take into consideration defendant's rehabilitative needs and 

was manifestly excessive did not raise a substantial question where sentence 

was within statutory limits and within sentencing guidelines).

Drust has failed to raise a substantial question, and therefore is not 

entitled to review of the discretionary aspect of his sentence.3 Moreover, we 

agree that his appeal is wholly frivolous and that counsel should be 

permitted to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2015

____________________________________________

3 Even if we were to find that Drust’s claim raises a substantial question, we 

would still find the appeal frivolous because the court noted that the 

seriousness of the crimes, the impact that the crimes had on the victim, and 

Drust’s pre-sentence investigation report were primary reasons for imposing 

a 20-40 month sentence. Moreover, the court did consider Drust’s past and 

current history, and noted it as the reason why the majority of the counts 

were ordered to run concurrently. See N.T. Sentencing, 9/5/14, at 11-12.