J-S10042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

KRISTOPHER JAMES COLELLO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2474 EDA 2017

Appeal from the Judgment of Sentence September 29, 2014

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

No(s): CP-09-CR-0004300-2014

BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED APRIL 24, 2018

Appellant Kristopher James Colello appeals from the judgment of 

sentence1following his convictions for three counts each of furnishing a 

controlled substance to confined persons, criminal conspiracy to furnish a 

controlled substance to confined persons, and criminal use of a communication 

facility.2 Appellant’s counsel has filed a petition to withdraw from 

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1 We note that Appellant’s notice of appeal purports to appeal from the July 

14, 2017 order denying his post-sentence motion for reconsideration. 

However, the appeal properly lies from the judgment of sentence. See 

Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa. Super. 2007) 

(“An appeal from an order denying a post-trial motion is procedurally improper 

because a direct appeal in a criminal proceeding lies from the judgment of

sentence. . . . Therefore, this appeal properly lies from the judgment of

sentence and not from any post-trial order.” (citation omitted)).

2 18 Pa.C.S. §§ 5123(a), 903(a), and 7512(a), respectively. 
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representation and a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), and its Pennsylvania counterpart, Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.

On September 29, 2014, Appellant appeared before the trial court for 

guilty plea and sentencing proceedings on three cases.3 The trial court 

summarized the facts relevant to the instant appeal as follows:

In [No. 4300], on September 29, 2014, Appellant pled guilty to 

three counts of Furnishing Controlled Substance Contraband to 

Confined Persons, three counts of Criminal Conspiracy to Furnish 

Controlled Substance Contraband to Confined Persons, and three 

counts of Criminal Use of a Communication Facility. These 

charges arose when, in October 2013, the Bucks County 

Correctional Facility received three greeting cards soaked in 

methadone that were addressed to the Appellant, who was an 

inmate at the time. Appellant had previously agreed with a codefendant, [Dana Kutschera,] through numerous telephone 

conversations on the prison phone system, that she would send 

him these greeting cards for his own personal use [or] for 

distribution to other inmates. This [c]ourt sentenced Appellant to 

[an aggregate] four to ten years’ incarceration on Counts 1 

through 6, with no further penalty imposed for Counts 7 through 

9.

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3 See Docket Nos. CP-09-CR-4715-2014 (No. 4715), CP-09-CR-4300-2014 

(No. 4300), and CP-09-CR-2184-2014 (No. 2184). Appellant is only appealing 

from the judgment of sentence at No. 4300. See Notice of Appeal, 7/28/17. 

We note that at No. 4715, Appellant pled guilty to burglary, receiving 

stolen property, theft by unlawful taking, and criminal mischief by tampering 

with tangible property. Trial Ct. Op., 9/26/17, at 2. The trial court sentenced 

Appellant to one to two years’ incarceration. Id. At No. 2184, Appellant pled 

guilty to access device fraud and forgery, and the trial court sentenced 

Appellant to one to two years’ imprisonment. Id. The sentences in No. 4715 

and 2184 were ordered to run concurrently to each other and the sentence in 

the instant case. Id. at 3.
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Trial Ct. Op., 9/26/17, at 1-2 (footnotes and citations omitted).

Appellant did not file a post-sentence motion or a direct appeal. Id. at 

4. On April 8, 2015, Appellant filed a pro se petition pursuant to the PostConviction Relief Act4 (PCRA) claiming ineffective assistance of trial counsel in 

not informing Appellant of his appellate rights. Id. On December 15, 2015, 

the PCRA court held a hearing and, on May 18, 2017, reinstated Appellant’s 

post-sentence and appellate rights. Id.

On May 30, 2017, Appellant filed a post-sentence motion to reconsider 

his sentence. Id. On July 5, 2017, the trial court held a hearing and, on July 

14, 2017, the trial court denied Appellant’s motion. Id.

On July 28, 2017, Appellant filed his notice of appeal and a Pa.R.A.P. 

1925(b) statement of matters complained of on appeal. On September 26, 

2017, the trial court filed its Pa.R.A.P. 1925(a) opinion.

Counsel’s Anders brief identifies the following questions on appeal:

1. Did the lower [c]ourt fail to state adequate reasons for imposing 

a sentence higher than that recommended by the Sentencing 

Guidelines?

2. Did the lower court fail to take the Sentencing Guidelines into 

account when imposing the sentence?

Anders Brief at 3.5 Appellant has not filed a pro se brief or a counseled brief 

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4 42 Pa.C.S. §§ 9541-9546.

5 Counsel also included as his first issue whether counsel should be permitted 

to withdraw from representation, however, because we have already 

addressed this issue, we have removed it from the “Issues Presented.”
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with new, privately-retained counsel.

Because counsel has filed a petition to withdraw pursuant to Anders, 

we must first address counsel’s petition before reviewing the merits of the 

appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007). 

To be permitted to withdraw, 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 the defendant; and 3) advise 

the defendant that he or she has the right to retain private 

counsel or raise additional arguments that the defendant 

deems worthy of the court’s attention. 

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en 

banc) (citation omitted).

Here, counsel has stated that after a thorough review of the record, he 

believes this appeal would be wholly frivolous. Pet. to Withdraw, 12/13/17, 

at ¶ 3. Counsel furnished a copy of the Anders brief to Appellant, as well as 

a letter advising Appellant that he has “the right to immediately retain new 

counsel, or proceed pro se (that is, represent yourself) to raise any additional 

points that you deem worthy of the Court’s attention.”6 Ltr. to Appellant, 

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6 On March 2, 2018, this Court directed counsel to provide documentation 

demonstrating that it had served on Appellant the Anders brief and the letter 

notifying Appellant of counsel’s application to withdraw and Appellant’s right 

to proceed pro se or with private counsel.

On March 5, 2018, counsel filed a certificate of service indicating that 

on December 13, 2017, it had provided the aforementioned documents to

Appellant. Counsel further stated “that this Certification of service is being 
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12/13/17. We conclude that counsel’s petition to withdraw complies with the 

procedural dictates of Anders.

We next address whether counsel’s Anders brief meets the 

requirements established by the Pennsylvania Supreme Court in Santiago. 

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’s brief provided a summary of the procedural history and the 

facts with appropriate citations to the record. Anders Brief at 5-8. Counsel’s 

brief states that he conducted a thorough review of the record and determined 

that any appeal would be frivolous, and set forth his reasons for that 

conclusion. Id. at 10. Accordingly, counsel has substantially complied with 

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served on the Appellant by first class mail on March 5, 2018.” Certificate of 

Service of (1) Anders Brief, (2) Letter Describing Right to Proceed Pro Se or 

with Newly Retained, Private Counsel, and (3) Certification of Service of the 

Certification of Service, 3/5/18.

Also, on March 5, 2018, counsel filed an application to correct his 

previous filing because he had “misstated the address to which the 

certification was sent to the Appellant on March 5, 2018.” Appl. to Correct 

March 5, 2018 Filing and Substitution with Correct Filing, 3/5/18.
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the requirements of Anders and Santiago. We, therefore, review the issues

raised in the Anders brief.

The two issues identified by counsel relate to the discretionary aspects 

of sentencing, and we address them jointly. The first issue identified by 

counsel is that the trial court erred in imposing a sentence in excess of that in 

the aggravated range of the Sentencing Guidelines. Counsel notes that the 

trial court arguably gave inadequate consideration to Appellant’s remorse, his 

drug addiction, his failed attempts to get help for his addiction, and his 

newborn, who provided him with motivation to quit using drugs. Appellant 

further argues that the trial court failed to take into consideration his 

rehabilitative needs pursuant to 42 Pa.C.S. § 9721(b).7

The second issue identified by counsel is that the trial court did not give 

adequate consideration to the Sentencing Guidelines. Counsel notes that the 

trial court “mentioned the guidelines during the colloquy, [but] did not 

mention them when imposing Appellant’s sentence.” Anders Brief at 16.

Before addressing the merits of a challenge to the discretionary aspects 

of sentencing, we must determine:

(1) whether the appeal is timely; (2) whether [a]ppellant 

preserved his issue; (3) whether [a]ppellant’s brief includes a 

concise statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of sentence; and 

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7 Section 9721(b) provides that “the sentence imposed should call for 

confinement 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 the defendant.” 42 Pa.C.S. § 

9721(b).
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(4) whether the concise statement raises a substantial question 

that the sentence is appropriate under the [S]entencing [C]ode.

Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017) (citation 

omitted). 

The determination of whether a petitioner has raised a substantial 

question is made on a case-by-case basis. Id. “A substantial question exists 

where a defendant raises a plausible argument that the sentence violates a 

provision of the sentencing code or is contrary to the fundamental norms of 

the sentencing process.” Id. (citation omitted).

Appellant has filed a timely notice of appeal, has preserved his claim in 

a post-sentence motion to reconsider his sentence, and has included in the 

Anders brief a Pa.R.A.P. 2119(f) statement setting forth his statement of 

reasons relied upon for allowance of appeal. Further, Appellant’s claim that 

the trial court failed to take into consideration certain mitigating and 

rehabilitative factors in imposing a sentence outside the aggravated range of 

the Sentencing Guidelines raises a substantial question.

8

 See 

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en 

banc) (holding that “an excessive sentence claim—in conjunction with an 

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8 The suggested standard range for furnishing a controlled substance to 

confined persons and criminal conspiracy to furnish a controlled substance to 

confined persons was twenty-four to thirty months and, in the aggravated 

range, thirty-six months. N.T., 9/29/14, at 21. Therefore, the four to ten 

year sentence constituted an upward departure for any single offense.
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assertion that the court failed to consider mitigating factors—raises a

substantial question” (citation omitted)). 

However, his claim that the trial court did not mention the Sentencing 

Guidelines in imposing its sentence does not raise a substantial question for 

our review. See Rush, 162 A.3d at 543 (finding that the appellant “cited no 

case law holding that his claim that the trial court failed to state the guideline 

ranges at sentencing raises a substantial question, nor does our research 

reveal any”).9 Therefore, we may only review the merits of Appellant’s 

discretionary aspects of sentencing claim with regards to his first issue. 

“Sentencing is a matter vested within the discretion of the trial court 

and will not be disturbed absent a manifest abuse of discretion.” Id. at 544 

(citation omitted). “An abuse of discretion requires the trial court to have 

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9 Even if Appellant’s second issue raised a substantial question, his claim would 

be meritless. This Court has held that the Sentencing Guidelines are “not 

mandatory” and trial courts “retain broad discretion in sentencing matters, 

and therefore, may sentence defendants outside the [g]uidelines.” 

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citation 

omitted). The guidelines are not binding, they are merely “advisory 

guideposts that are valuable, may provide an essential starting point, and that 

must be respected and considered; they recommend, however, rather than 

require a particular sentence.” Rush, 162 A.3d at 543 n.10 (citing 

Commonwealth v. Walls, 926 A.2d 957, 964–65 (Pa. 2007)). Moreover, 

this Court has held that as long as “the record demonstrates that the [trial] 

court was aware of the guideline ranges,” then “we will not reverse merely 

because the specific ranges were not recited.” Commonwealth v. Griffin, 

804 A.2d 1, 8 (Pa. Super. 2002).

Here, however, the trial court did mention the Sentencing Guidelines 

and took them into consideration while fashioning Appellant’s sentence. See 

N.T., 9/29/14, at 21. The trial court also explained its reasoning for imposing 

the sentence it did. Id. at 52-56.
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acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, 

or such lack of support so as to be clearly erroneous.” Id. (citation omitted). 

“A sentencing court need not undertake a lengthy discourse for its reasons for 

imposing a sentence or specifically reference the statute in question, but the 

record as a whole must reflect the sentencing court’s consideration of the facts 

of the crime and character of the offender.” Id. (citation omitted).

In imposing Appellant’s sentence, the trial court stated:

I have an obligation as a judge, I believe I have some 

responsibility for the fact that we sentence people to the Bucks 

County Prison and expect them to be safe and expect them to 

have no contraband there. This required thought and planning on 

your part. And this argument that now you have a child doesn’t 

hold a lot of water with me, is that the expression, because you 

knew you were expecting a child at the time that this happened, 

regardless of where you were in life. 

You complained that you haven’t had treatment and yet you’ve 

been in a therapeutic community in the state, you have been in 

outpatient treatment in the community, and you have a short 

hospitalization, and I think having sat here you know that I believe 

I am sensitive and mindful of the fact that this is an addiction. But 

the level of criminal thinking to come up with soaking a card with 

Suboxone to bring it into the prison is amazing to me.

N.T., 9/29/14, at 45-46.

The trial court further stated:

It’s fascinating to me that you [(Appellant)] say you’ve never hurt 

anyone before. I don’t know who the victim was of the burglary, 

but somebody was victimized by the burglary. And perhaps you 

don’t see burglary as a crime that victimizes other people, even if 

it’s a business. And you have a prior simple assault and were 

given one to two years, I suspect somebody was hurt by that.

Then there’s the little matter of the possession with intent to 

deliver which means that you pled guilty to being involved in the 
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delivery of drugs. You, of all people, should understand that that 

destroys lives. And so here we are, and I am struck by the lack 

of incite and the lack of understanding of your criminal thinking. 

I am struck by the fact that this is more than somebody who has 

possessed -- who has presented with the opportunity to have

drugs and uses them. This is somebody coming up with a plan to

bring them into the prison. And while there’s an agreement for 

these sentences to run concurrent, let’s just take a look at what I 

have to work with here.

Id. at 52-53.

The court continued:

Then we look at the fact that I have three contraband cases, three

counts of conspiracy and criminal use of [a] communication 

facility, and all of those do not merge. So even if I just looked at 

the low end of the standard range for each of the contraband 

cases, that would be two years. So we’re talking six years just for 

the three contraband cases. One year if I only sentenced you at 

the low end of the burglary and one year in the standard range 

for the access device fraud. 

What I’m trying to get you to see is, yes, I do believe a lot of your 

decisions have been fueled by addiction, but I see long-term 

criminal thinking here, a long-term inability to see the impact of 

your decisions on other people. That’s what I see. And that is 

criminal thinking. And anything less than a long sentence will not 

address that in my mind.

Id. at 53-54.

In its 1925(a) opinion, the trial court added:

[O]nly a lengthy sentence would address this [c]ourt’s concern 

with safety in the prisons, the gravity and quantity of Appellant’s 

offenses, and his long history of criminal activity. While we 

acknowledged Appellant’s deep-rooted struggle with addiction and 

his attempts to rehabilitate himself, this [c]ourt noted that the 

level of criminal thinking involved in “com[ing] up with soaking a 

card with Suboxone to bring it into the prison is amazing to me.” 

N.T. 9/29/14, p. 46.
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Trial Ct. Op. at 6-7.

The trial court considered Appellant’s history of drug addiction and the 

motivation of having a new child; however, the trial court also took into 

consideration Appellant’s lack of remorse for his actions, his lack of 

understanding of the impact his actions had on others, the seriousness of the 

several crimes, and the fact that case No. 4300 occurred after Appellant knew 

he was going to be a father. Thus, the trial court considered the mitigating 

factors presented by Appellant as well as Appellant’s rehabilitative needs. In 

the end, it found that any sentence lesser than that imposed would not 

address Appellant’s “criminal thinking” and his “long-term inability to see the 

impact of [his] decisions on other people.” N.T., 9/29/14, at 54. 

Therefore, the record does not support the assertion that the trial court 

failed to consider the mitigating factors raised by Appellant or Appellant’s 

rehabilitative needs. Accordingly, we agree with counsel’s assessments that 

the identified issues would be frivolous as the record contains no indication 

the trial court abused its discretion when deviating from the Sentencing 

Guidelines. Further, our independent review of the record does not reveal any 

additional, non-frivolous issues. See Commonwealth v. Schmidt, 165 A.3d 

1002, 1006 (Pa. Super. 2017).

Counsel’s “Application to Correct March 5, 2018 Filing and Substitution 

with Correct Filing” granted. Petition for leave to withdraw as counsel granted. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/24/18