J-S66004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DARREN ROBINSON

Appellant No. 42 MDA 2016

Appeal from the Judgment of Sentence December 18, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0001915-2015

BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016

Darren Robinson appeals from the judgment of sentence of twelve to 

thirty months imprisonment that was imposed after he pled guilty to 

possession of a controlled substance with intent to deliver ("PWID"). 

Counsel has filed a petition to withdraw from representation and a brief 

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

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

counsel’s petition to withdraw and affirm.

On April 28, 2015, the Wilkes-Barre Anti-Crime Unit and the 

Pennsylvania State Police Troop P Vice Unit were conducting a joint drug 

interdiction in Wilkes-Barre. The police officers used a confidential informant 

("CI") to contact Appellant by phone, and listened in as he negotiated a 
J-S66004-16

- 2 -

purchase of heroin. Appellant directed the CI, who was given pre-recorded 

buy money, to the corner of Puritan Lane and South Meade Street to 

consummate the sale. Surveillance officers observed the CI meet 

momentarily with Appellant. The CI then used a pre-arranged signal to alert 

police that the exchange had occurred. Police immediately arrested 

Appellant, who was in possession of the pre-recorded currency, while the CI 

went directly to police and gave them a quantity of heroin. 

Appellant was charged with a single count of PWID, and tendered an 

open guilty plea to that charge on November 2, 2015. The matter 

proceeded to sentencing on December 18, 2015, where the court had the 

benefit of a pre-sentence report. Appellant, who was serving a jail term due 

to a probation revocation, had a prior record score of two and an offense 

gravity score of six, resulting in a standard range of nine to sixteen months 

in jail. The court imposed a standard range sentence of twelve to thirty 

months imprisonment. The court proffered that its sentence was premised 

upon the serious nature of selling heroin and Appellant's criminal history, 

which involved firearms offenses. It also observed that Appellant previously 

was given county sentences, and had failed to curb his criminal activities. 

The sentence was imposed consecutively to the revocation sentence 

Appellant was then serving. Appellant was informed of his post-sentencing 

rights. N.T. Sentencing, 12/18/15, at 7. He failed to file a post-sentence 

motion, but did file this timely appeal. 
J-S66004-16

- 3 -

As noted, counsel has moved to withdraw. Since we do not consider 

the merits of an issue raised in an Anders brief without first reviewing a 

request to withdraw, we now address counsel’s petition to withdraw. 

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). 

In order to be permitted to withdraw, counsel must meet three procedural 

requirements: 1) file a petition for leave to withdraw and state that, after 

making a conscientious examination of the record, counsel has concluded 

that the appeal is frivolous; 2) provide a copy of the Anders brief to the 

defendant; and 3) inform the defendant that he has the right to retain 

private counsel or raise, pro se, additional arguments that the defendant 

deems worthy of the court’s attention. Id.

In his motion to withdraw, counsel avers that he examined the record, 

determined the appeal was frivolous, and concluded there are no meritorious 

issues to be raised in this appeal. Counsel, as evidenced by a letter 

attached to the petition to withdraw, sent Appellant a copy of the withdrawal 

motion and brief filed herein and advised Appellant that he had the right to 

proceed pro se or with the assistance of privately retained counsel. Thus, 

the procedural aspects of Anders are satisfied. 

We now examine the briefing requirements when counsel seeks to

withdraw on direct appeal. Pursuant to Santiago, an Anders 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 
J-S66004-16

- 4 -

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, supra at 361.

Counsel herein complied with the mandates of Santiago by setting 

forth the procedural and factual history of the case. He also establishes, 

through legal citation, the lack of merit of Appellant's position raised on 

appeal: "Appellant contends that the trial court abused its discretion in 

failing to sentence him to the low-end of the Sentencing Guidelines which 

constitutes an abuse of discretion and substantial question." Appellant's 

brief at 5. 

This challenge to the discretionary aspects of Appellant’s sentence, as 

noted by counsel, has been waived. Appellant raised no objection to the 

sentence when it was imposed, and, despite being informed of his postsentence rights, he failed to file a post-sentence motion. Commonwealth 

v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003) (citation omitted) (“[I]ssues 

challenging the discretionary aspects of sentencing must be raised in a postsentence motion or by raising the claim during the sentencing proceedings. 

Absent such efforts, an objection to a discretionary aspect of a sentence is 

waived.”). Hence, we concur with counsel’s assessment that this issue 

cannot form the basis for appellate relief. 
J-S66004-16

- 5 -

We have conducted an independent review of the record, as required 

by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015), 

and have concluded that there are no preserved non-frivolous issues that 

can be raised in this appeal. Hence, we concur with counsel’s conclusion 

that this appeal is wholly frivolous and allow him to withdraw. 

Petition of Matthew P. Kelly, Esquire, to withdraw as counsel is 

granted. Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2016