J-S64040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

EMMANUEL PAULINO 

Appellant No. 442 MDA 2017

Appeal from the Judgment of Sentence April 20, 2016

In the Court of Common Pleas of Luzerne County Criminal Division at No(s): 

CP-40-CR-0000321-2014, 

CP-40-CR-0004435-2013

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

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 16, 2017

Appellant, Emmanuel Paulino, appeals from the judgment of sentence 

entered in the Luzerne County Court of Common Pleas. His attorney, David 

V. Lampman, II, Esq. (“Counsel”), has filed an Anders1 petition for leave to 

withdraw. Counsel identifies the following issues on appeal: (1) whether the 

trial court abused its discretion in sentencing Appellant; and (2) whether 

Appellant’s remaining claims qualify for relief. Appellant filed a pro se

response to Counsel’s Anders brief. We grant Counsel’s petition to 

withdraw and affirm.

 

* Former Justice specially assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967).
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On June 9, 2014, Appellant pled guilty in case number CP-40-CR00321 to Count 1 aggravated assault2 and Count 2 aggravated assault.3

 In 

case number CP-40-CR-004435-2013, Appellant pled guilty to manufacture, 

delivery, or possession with intent to manufacture or deliver a controlled 

substance4 (“PWID”), and conspiracy.5 The trial court summarized the 

procedural posture of this case as follows:

On August 28, 2014, [Appellant] was sentenced to an 

aggregate of 102 to 152 months[’

] incarceration . . . .

 * * *

[Appellant] did not file post-sentence motions or a 

direct appeal of this case.

On September 18, 2015, [Appellant] filed a timely 

[(“PCRA”)6] petition.

In the PCRA petition, [Appellant] alleged that he was 

entitled to relief pursuant to Alleyne[7] because he was 

sentenced to an illegal mandatory minimum sentence in 

Count 1 of 4435-2013.

On April 20, 2016, after concurrence by the 

Commonwealth, the [c]ourt granted [Appellant’s] PCRA, 

vacated the mandatory minimum sentence on Count 1 of 

 

2 18 Pa.C.S. § 2702(a)(1).

3 18 Pa.C.S. § 2702(a)(3).

4 35 Pa.C.S. § 780-113(a)(30).

5 18 Pa.C.S. § 903.

6 42 Pa.C.S. §§ 9541-9546.

7 Alleyne v. U.S., 133 S.Ct. 2151 (2013).
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4435 of 2013, and resentenced him in accordance with 

Alleyne [ ] by issuing a 12 to 24 month standard range 

sentence.

At the time of re-sentencing, [Appellant’s] aggregate 

minimum and maximum sentence was reduced by one (1) 

year.

 

On May 16, 2016, [Appellant] timely filed a Notice of 

Appeal.

On June 27, 2016, [Appellant] filed a concise statement 

of errors.

On July 5, 2016, the Commonwealth filed a response to 

[Appellant’s] concise statement.

On August 5, 2016, the [c]ourt issued an opinion on 

this matter pursuant to Pa.R.A.P. 1925(a).

On July 15, 2016, the Superior Court issued an order 

dismissing [Appellant’s] appeal (819 MDA 2016) for his 

counsel’s failure to comply with the requirements 

concerning filing the docketing statement, Pa.R.A.P. 

3517.[8]

On October 7, 2016, [Appellant] timely filed a pro se

PCRA petition commencing this action.

 

8 Rule 3517 provides:

Whenever a notice of appeal to the Superior Court is filed, 

the Prothonotary shall send a docketing statement form 

which shall be completed and returned within ten (10) 

days in order that the Court shall be able to more 

efficiently and expeditiously administer the scheduling of 

argument and submission of cases on appeal. Failure to 

file a docketing statement may result in dismissal of the 

appeal.

Pa.R.A.P. 3517.
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The [c]ourt held a PCRA hearing . . . at which time the 

District Attorney and the Attorney General concurred in 

[Appellant’s] request to reinstate his direct appellate 

rights. 

Trial Ct. Op., 4/21/17, at 2-4. On March 7, 2017, the court granted the 

PCRA petition and reinstated Appellant’s direct appellate rights. This appeal 

followed.9

Counsel identifies the following issues in the Anders brief:10

1. Whether the sentencing court erred and/or abused its 

discretion in sentencing [Appellant]?

2. Whether [Appellant’s] remaining claims are meretricious 

[sic] and/or qualify for relief?[11]

 

9 Appellant filed a notice of appeal on March 13, 2017. On March 23, 2017, 

docketed March 29, 2017, this Court entered a per curiam order directing 

the trial court to enter the March 7, 2017 order on the docket within 14 

days. On March 27, 2017, the trial court complied with this Court’s Order. 

“A notice of appeal filed after the announcement of a determination but 

before the entry of an appealable order shall be treated as filed after such 

entry and on the date thereof.” Commonwealth v. Cooper, 27 A.3d 994, 

1008 (Pa. 2011) (citing Pa.R.A.P. 905(a)(5)) (quotation marks omitted). 

Accordingly, the instant appeal is properly before us. See id.

10 We note that Counsel filed a court ordered Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal on March 17, 2017.

11 The Anders brief raises two additional issues:

3. Whether the undersigned’s analysis herein complies 

with Anders . . . .

4. Whether undersigned’s petition to withdraw should be 

granted?

Anders Brief at viii.
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Anders Brief at viii. 

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

the merits of any possible underlying issues without first examining 

counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 

379, 382 (Pa. Super. 2008).

Prior to withdrawing as counsel on a direct appeal under 

Anders, counsel must file a brief that meets the 

requirements established by our Supreme Court in 

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

The brief 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 on point that have led to the conclusion that 

the appeal is frivolous. 

Santiago, 978 A.2d at 361. 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.” 
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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014) 

(some citations omitted).12 If counsel complies with these requirements, 

“we will make a full examination of the proceedings in the lower court and 

render an independent judgment [as to] whether the appeal is in fact 

‘frivolous.’” Id. at 882 n.7 (citation omitted). 

Instantly, Counsel provided a factual summary of the case with 

citations to the record. Anders Brief at 1-16. Counsel explained the 

relevant law and discussed why Appellant’s claims are meritless. Id. at 17-

27. In conclusion, Counsel’s Anders brief stated: “There are no issues of 

substantive merit to be presented on appeal.” Id. at 37.

Counsel also provided Appellant with a copy of the Anders brief and a 

letter advising Appellant of his rights. Counsel’s Appl. to Withdraw, 6/10/17. 

In light of the foregoing, we hold Counsel has complied with the 

requirements of Santiago. See Orellana, 86 A.3d at 879-80. We now 

examine the record to determine whether the issue on appeal is wholly 

frivolous. See id. at 882 n.7.

 

12 Our Supreme Court in Santiago “emphasized the difference between an 

Anders brief, which offers an issue for a court’s consideration, but reflects 

counsel’s candid assessment of the complete lack of merit in his client’s 

case, and a merits brief, which implies that an issue is worthy of review and 

has some chance of succeeding.” Santiago, 978 A.2d at 359-60. 
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First, Counsel identified the following issue in the Anders brief: 

“Whether the sentencing court erred and/or abused its discretion in 

sentencing [Appellant]?” Anders Brief at viii. 

As a prefatory matter, we note that “[t]he right to appeal the 

discretionary aspects of a sentence is not absolute.” Commonwealth v. 

Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008). 

This Court may only reach the merits of an appeal 

challenging the discretionary aspects of sentence where it 

appears that there is a substantial question that the 

sentence imposed is not appropriate under the Sentencing 

Code. A substantial question will be found where the 

defendant advances a colorable argument that the 

sentence imposed is either inconsistent with a specific 

provision of the code or is contrary to the fundamental 

norms which underlie the sentencing process. 

Id. (quotation marks and citation omitted). In addition, Pennsylvania Rule 

of Appellate Procedure 2119(f) requires that “[a]n appellant who challenges 

the discretionary aspects of a sentence in a criminal matter shall set forth in 

his brief a concise statement of the reasons relied upon for allowances of 

appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 

2119(f); see also Booze, 936 A.2d at 1278. 

Counsel’s Anders brief does not contain a statement of reasons for 

allowance of appeal pursuant to Rule 2119(f). In Commonwealth v. 

Lilley, 978 A.2d 995 (Pa. Super. 2009), this Court opined: 

The Anders brief challenges discretionary aspects of 

[the a]ppellant’s sentence. [The a]ppellant was required 

to “set forth in his brief a concise statement of the reasons 
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relied upon for allowance of appeal with respect to the 

discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

The concise statement must specify where the 

sentence falls in relation to the sentencing guidelines 

and what particular provision of the code it violates. 

Additionally, the statement must specify what 

fundamental norm the sentence violates and the 

manner in which it violates that norm. If the 

statement meets these requirements, we can decide 

whether a substantial question exists.

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. 

Super. 2004) (internal quotations and citations omitted). 

[The a]ppellant’s Pa.R.A.P. 2119(f) statement fails to cite 

what particular provision of the code or what specific 

fundamental norm [the a]ppellant’s sentence allegedly 

violates.

Nevertheless, in light of Counsel’s petition to withdraw, 

we address [the a]ppellant’s contention. See 

Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. 

Super. 2001) (concluding that Anders requires review of 

issues otherwise waived on appeal).

Id. at 998.

We will review the issue nonetheless. See id. Our review is governed 

by the following principles:

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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation 

omitted).
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In making a reasonableness determination, a court should consider 

four factors: 

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

history and characteristics of the defendant.

(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. § 9781(d)(1)-(4). 

In Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011), this 

Court held:

[W]here the sentencing court imposed a standard-range 

sentence with the benefit of a pre-sentence report [“PSI”], 

we will not consider the sentence excessive. In those 

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. 

Id. at 298 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 

1988)) (quotation marks omitted); see also Commonwealth v. Moury, 

992 A.2d 162, 171 (Pa. Super. 2010) (stating “where a sentence is within 

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

as appropriate under the Sentencing Code”). 

At the resentencing hearing, the court asked Appellant’s counsel if 

there had been any discussion with the Commonwealth prior to the hearing. 

N.T., 4/20/16, at 2. 
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[Appellant’s counsel:] Yes, there has, Your Honor. I think 

we have a deal and I’d actually like [Appellant] to be 

sworn in just so we can take his testimony. 

 * * *

Your Honor, specifically I believe the agreement that’s 

been reached with the Attorney General’s Office is on 4435 

of 2013, delivery of heroin, where a mandatory minimum 

was imposed.

It is agreed that pursuant to the more recent case law, 

the mandatory minimum would be unconstitutional and 

therefore it is [Appellant’s] desire that he be resentenced 

as to that count.

As it relates to anything else that he may have 

otherwise raised in any paperwork he filed, he would want 

to withdraw any other arguments or issues that he brought 

up.

And I just want to make sure I’m correct with that.

[Appellant:] Yes, sir.

The Court: And . . . you have been counseled by [your 

Attorney] and had an opportunity to speak with him?

[Appellant:] Yes. 

 * * *

[Appellant’s counsel:] So it is my understanding that the 

standard range for the delivery of heroin would again be a 

six month to 14 month standard range, and ask only that 

count be resentenced within that standard range.

The Court: Deputy Attorney General Abraham, at this point 

what is your position?

[Deputy Attorney General:] . . . The Commonwealth has 

no opposition to granting [Appellant’s] PCRA request . . . 

to be resentenced on Count 1 of docket 4435 of 2013 to 
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reflect a sentence within the standard range of six to 14 

months.

The Court: So both parties are stipulating to the standard 

range of sentencing on Count 1 . . . .

 * * *

The Court: Assistant DA Violi, do you care to be heard at 

this point?

[Assistant DA:] Just with regard to the sentencing, I would 

restate my position from the original sentencing that the 

cases run consecutive to each other.

 * * *

The Court: Counsel, as I have indicated to you, I will grant 

a resentencing. And it will be as to the entire information, 

4435 of ‘13, Count 1, [PWID] and Count 2, conspiracy.

Commonwealth in agreement?

[The Commonwealth:] Yes, Your Honor.

The Court: And [counsel for Appellant]?

[Counsel for Appellant:] Yes.

The Court: So noted.

I will incorporate the [PSI] that was prepared in this 

matter August 12, of 2014, and I will ask whether there 

are any additional statements to be made by either party 

at this particular juncture.

[Counsel for Appellant:] Yes, Your Honor, [Appellant] 

would like to give you an update since he’s been 

incarcerated.

The Court: [Appellant] is sworn.

[Appellant:] Yes, Your Honor.
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I’ve been incarcerated two and a half years, I did my PC 

program and two other programs, I have no write ups. 

And I’m asking you just to have a reconsideration.

I have to justify myself that I did cooperate with the 

Commonwealth of Pennsylvania with my aggravated 

assault and I did plea [sic] guilty.[13] I know I am guilty. I 

wasn’t on the right path in my life. I’ve got four kids out 

there and I really want to be the father that they deserve 

when I get out.

 * * * 

The Court: . . . I grant the PCRA relief as to resentencing 

on information 4435 of ’13 in accordance with the case 

law.

 

13 As to the aggravated assault counts, Appellant pled guilty to the following:

The Commonwealth: Your Honor, this took place on 

November 19th of 2013, in the early morning hours. 

[Appellant] was staying with the victim who is his girlfriend 

and mother of his children. They were in the same bed 

sleeping together. [Appellant] with no warning then 

inserted his arm repeatedly into her anus up to his elbow 

and he caused significant damage. She required hours of 

surgery and has permanent damage which will require the 

lifelong use of colostomy bag.

When the police arrived at the scene, [Appellant] also 

head butted Trooper Foux, F-O-U-X, causing damage to his 

not.

The Court: So noted. Are you pleading guilty to those 

charges?

[Appellant:] Yes.

N.T. Guilty Plea Hr’g, 6/9/14, at 6-7.
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[Appellant] has withdrawn all other requests in the 

PCRA petition and as such they are moot. I have 

incorporated the [PSI], I take into account also the 

statements of [Appellant, the Attorney General, the 

Assistant DA, and Appellant’s counsel,] I’ve considered the 

nature of the offenses and the voluntariness of the plea.

The sentence of the [c]ourt on 4435 of ’13, Count 1, 

possession with intent to deliver, I sentence you to a term 

of imprisonment in state prison for a period of not less 

than 12 months, no more than 24 months.

On Count 2, conspiracy, I sentence you to 

imprisonment in a state prison for a period of not less than 

12 months, no more than 24 months, which shall be 

concurrent to the sentence imposed at Count 1.

 * * *

Furthermore, today’s sentence is consecutive to the 

sentence imposed by the [c]ourt at information 321 of ’14.

Id. at 2-6, 8-9.

We discern no abuse of discretion in the trial court’s conclusions. 

Fullin, 892 A.2d 843. The court imposed a standard-range sentence with 

the benefit of a PSI. Therefore, Appellant’s sentence of twelve to twentyfour months was not manifestly excessive. See Corley, 31 A.3d at 298; 

Moury, 992 A.2d at 171. We agree with Counsel that this claim is frivolous.

The next claim identified by Counsel is that there was a negotiated 

guilty plea agreement of three to six years’ imprisonment which was not 

honored. Anders Brief at 27. Our review of the record does not support 

this claim. We agree with Counsel that this claim is also frivolous. 
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Lastly, the Anders brief and Appellant’s pro se response to the 

Anders brief raise issues of the ineffective assistance of counsel. “[C]laims 

of ineffective assistance of counsel will not be entertained on direct appeal.” 

Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (citation 

omitted). We acknowledge that there are exceptions to this rule; however, 

they do not apply in the case at bar. See Commonwealth v. Holmes, 79 

A.3d 562 (Pa. 2013) (discussing the continued viability and limited scope of 

the exception enunciated in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 

2003)). We will not address Appellant’s ineffective assistance of counsel 

claims. See Liston, 977 A.2d at 1094. Therefore, we dismiss these claims 

without prejudice to Appellant’s right to raise his ineffective assistance of 

counsel claims on collateral review. See id. at 1094-95. 

A review of the record reveals no other meritorious issue that could 

provide relief.

Judgment of sentence affirmed. Counsel’s petition to withdraw 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2017