J-S43034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIE ANDRAE DELEON

Appellant No. 1100 MDA 2015

Appeal from the Judgment of Sentence March 17, 2015

in the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0001136-2014

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED JUNE 14, 2016

Appellant Willie Andrae Deleon (“Appellant”) appeals from the March 

17, 2015 judgment of sentence entered in the Lackawanna County Court of 

Common Pleas following his guilty plea convictions for criminal solicitation 

(involuntary deviate sexual intercourse of a person less than 16 years of 

age)1and unlawful contact with a minor.2 Appellant’s counsel has filed an 

Anders3 brief, together with a petition to withdraw as counsel. We affirm 

the judgment of sentence and grant counsel’s petition to withdraw.

____________________________________________

1 18 Pa.C.S. § 902(a) (§ 3127(a)(7)).

2 18 Pa.C.S. § 6318(a)(1).

3 Anders v. California, 386 U.S. 738 (1967).
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On August 25, 2014, Appellant pleaded guilty to the aforementioned 

charges. On March 17, 2015, after the preparation of a presentence 

investigation report and a sexual offenders assessment board evaluation, the 

trial court sentenced Appellant to 48-96 months’ incarceration followed by 

four years’ probation on the criminal solicitation conviction and two years’ 

probation on the unlawful contact with a minor conviction to be served 

consecutively to the solicitation sentence. On March 27, 2015, Appellant 

filed a motion for reconsideration arguing the sentence was excessive, which 

the trial court denied on May 26, 2015, after conducting a hearing.

Appellant filed a notice of appeal on June 25, 2015, and a Pa.R.A.P. 

1925(b) statement on July 24, 2015. The trial court filed its Pa.R.A.P. 

1925(a) opinion on February 11, 2016.

As previously noted, Appellant’s counsel has filed an application 

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.

4

 Before 

addressing the merits of Appellant’s underlying issue presented, we must 

first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin, 

928 A.2d 287, 290 (Pa.Super.2007) (en banc). 

____________________________________________

4 978 A.2d 349 (Pa.2009).
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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 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 must also provide the appellant with a 

copy of the Anders brief, together with a letter that advises the appellant of 

his or her 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.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super.2007). 

Substantial compliance with these requirements is sufficient. 

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After 

establishing that the antecedent requirements have been met, this Court 

must then make an independent evaluation of the record to determine 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm, 

903 A.2d 1244, 1246 (Pa.Super.2006).

Instantly, counsel contemporaneously filed a petition to withdraw as 

counsel with the Anders brief. The petition states counsel’s determination 

that Appellant’s appeal is without merit. See Petition to Withdraw As 
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Counsel, ¶ 7. The petition further explains that counsel notified Appellant of 

the withdrawal request and sent Appellant a letter explaining his right to 

proceed pro se or with new, privately-retained counsel to raise any 

additional points or arguments that Appellant believed had merit.5 See id.

at ¶¶ 6-7; see also Letter to Appellant, March 2, 2016. In the Anders

brief, counsel provides a summary of the facts and procedural history of the 

case with citations to the record, refers to evidence of record that might 

arguably support the issue raised on appeal, provides citations to relevant 

case law, and states her conclusion that the appeal is wholly frivolous and 

her reasons therefor. See Anders Brief, pp. 5-13. Accordingly, counsel has 

substantially complied with the requirements of Anders and Santiago.

As Appellant filed neither a pro se brief nor a counseled brief with new, 

privately-retained counsel, we review this appeal based on the issue of 

arguable merit raised in the Anders brief:

(A) Whether the lower court imposed a harsh and unreasonable 

sentence on the criminal solicitation-involuntary deviate sexual 

intercourse – person less than 16 years old offense?

Anders Brief, p. 4 (unnecessary capitalization omitted).

This claim raises a challenge to the discretionary aspects of Appellant’s 

sentence. “Challenges to the discretionary aspects of sentencing do not 

entitle a petitioner to review as of right.” Commonwealth v. Allen, 24 

____________________________________________

5 The letter further makes clear that counsel supplied Appellant with a copy 

of the Anders brief. See Letter to Appellant, March 2, 2016.
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A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a 

discretionary challenge, an appellant must comply with the following 

requirements:

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: (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.

Allen, 24 A.3d at 1064.

Here, Appellant filed a timely notice of appeal and preserved his 

discretionary aspects of sentencing issue in a motion for reconsideration of 

sentence. Further, Appellant’s brief includes a concise statement of the 

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). 

See Anders Brief, pp. 8-9. Accordingly, we now determine whether 

Appellant has raised a substantial question for review and, if so, proceed to 

a discussion of the merits of the claim. See Pa.R.A.P. 2119(f); 

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).

“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 [sentencing] code or is contrary to the fundamental 

norms which underlie the sentencing process.” Commonwealth v. 

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see 

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a 
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substantial question on a case-by-case basis.” Id. A bald or generic 

assertion that a sentence is excessive does not, by itself, raise a substantial 

question justifying this Court’s review of the merits of the underlying claim. 

Id.; see also Commonwealth v. Harvard, 64 A.3d 690, 701 

(Pa.Super.2013). Further, “[t]his Court has held on numerous occasions 

that a claim of inadequate consideration of mitigating factors does not raise 

a substantial question for our review.” Commonwealth v. Disalvo, 70 

A.3d 900, 903 (Pa.Super.2013); see also Commonwealth v. Ratushny, 

17 A.3d 1269, 1273 (Pa.Super.2011) (“argument that the sentencing court 

failed to adequately consider mitigating factors in favor of a lesser sentence 

does not present a substantial question appropriate for our review.”); 

Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa.Super.2006) 

(“[A]ppellant’s contention that the trial court did not adequately consider a 

mitigating circumstance when imposing sentence does not raise a 

substantial question sufficient to justify appellate review of the merits of 

such claim.”). 

“[A] substantial question exists when a sentencing court imposed a 

sentence in the aggravated range without considering mitigating factors.” 

Rhoades, 8 A.3d at 919 n.12 (citing Commonwealth v. Felmlee, 828 

A.2d 1105, 1107 (Pa.Super.2003)) (emphasis in original). However, “where 

a sentence is within the standard range of the guidelines, Pennsylvania law 

views the sentence as appropriate under the Sentencing Code.” 

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super.2010).
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In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial 

court abused its discretion by sentencing him in the high end of the 

sentencing guidelines without considering certain mitigating factors. See

Anders Brief, p. 9.6 The claim does not allege that the sentencing court 

departed from the standard range and sentenced Appellant in the 

aggravated range of the sentencing guidelines. It alleges merely that 

Appellant received a sentence at the higher end of the standard range. 

Therefore, this claim does not present a substantial question for this Court’s 

review. See Moury, supra.

____________________________________________

6 Appellant’s Pa.R.A.P. 2119(f) statement reads, in pertinent part, as 

follows:

The Appellant asserts that the sentencing court stated that 

it was imposing a sentence in [the] standard range, which for 

solicitation for IDSI is 36 to 54 months. The Appellant believes 

that the lower court imposed a harsh and unreasonable 

sentence, given the facts that he is a first time offende[r], that 

he had voluntarily enrolled himself in a therapeutic counseling 

program, and that he had posted his ad in the adult section of 

Craig’s [L]ist, he was not soliciting sex with a minor.

The Appellant asserts that given the circumstances 

presented herein, this sentence was inconsistent with the 

Sentencing Guidelines. The Appellant contends that the 

Sentencing Guidelines had considered the age of the victim since 

the offense involves the solicitation for IDSI – child less than 16 

years of age. He submits that the sentencing judge’s focus on 

the fact the age of the child was in error. As such, the Appellant 

urges this Court to review his sentence.

Anders Brief, p. 9.
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Further, even had Appellant stated a substantial question for review, 

we would affirm on the merits. We review discretionary aspects of sentence

claims under the following standard of review:

[S]entencing is vested in the discretion of the trial court, and will 

not be disturbed absent a manifest abuse of that discretion. An 

abuse of discretion involves a sentence which was manifestly 

unreasonable, or which resulted from partiality, prejudice, bias 

or ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006) 

(citations omitted).

Initially, where a sentencing judge had the benefit of a presentence 

investigation report, it is presumed that the judge was aware of all relevant 

information regarding the defendant’s character and weighed those 

considerations along with any mitigating factors. Commonwealth v. 

Boyer, 856 A.2d 149, 154 (Pa.Super.2004).

Additionally, the sentencing guidelines are merely advisory in nature. 

See Commonwealth v. Walls, 926 A.2d 957, 964 (Pa.2007) (“[T]he 

guidelines have no binding effect, create no presumption in sentencing, and 

do not predominate over other sentencing factors – they are 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.”). “[I]t is well-established that a 

sentencing court can impose a sentence that is the maximum period 

authorized by the statute, 42 Pa.C.S. § 9756(a).” Commonwealth v. 

Saranchak, 675 A.2d 268, 277 n. 17 (Pa.1996).
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Our review of the sentencing transcript reveals that the lower court did 

not abuse its discretion. See generally N.T. 3/17/2015. Instead, the trial 

court imposed a sentence that was consistent with the protection of the 

public, took into account the gravity of the offense as it related to the impact 

on the life of the victim and on the community, and considered the 

Appellant’s rehabilitative needs, as required by 42 Pa.C.S. § 9721(b). Id. 

The trial court explained the imposition of Appellant’s sentence thusly:

In this case, prior to imposing sentence, this [c]ourt had 

the benefit of a presentence investigative report, which was 

reviewed in its entirety. As such, this [c]ourt was aware of and 

weighted relevant information regarding the Appellant’s 

character as well as any mitigating factors. This [c]ourt was 

aware of Appellant’s prior record score of zero and that he was 

not deemed a sexually violent predator. This [c]ourt also heard 

testimony from Appellant and his pastor. This [c]ourt also 

addressed Appellant’s attitude toward his responsibility for his 

actions, particularly his statement “It wasn’t my intent to lure an 

underage person” despite the fact that appellant continued to 

exchange messages of a sexual nature with an individual he 

believed to be a minor child. This [c]ourt further stated on the 

record that it considered the punishment, rehabilitation, 

deterrence, and incapacitation purposes of sentencing. 

Appellant’s steps toward rehabilitation do not completely negate 

the fact that he sent graphic, sexually explicit messages to a 

person he believed to be a fourteen year old girl over three (3) 

days. Appellant further made plans to have sexual relations with 

this child and travelled from the Allentown area to Scranton to 

engage in intercourse. There is nothing in the record to suggest 

that, had it not been law enforcement at the meet location, 

Appellant would [not] have engaged in deviate sexual 

intercourse with a minor child. In Appellant’s own words, his 

“desire to want to have sexual relations at that moment was 

greater than me understanding between right and wrong.” This 

sort of behavior, the inability to discern between what is right, 

wrong, and illegal based on one’s own wants and impulses, is 

the type of conduct that fits squarely into the sentencing 

purposes. This [c]ourt clearly considered the particular 
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circumstances of the offenses committed, the impact on the 

community, the need to deter Appellant and others from 

committing this type of offense, and the protection of the 

community at large. Appellant was then sentenced within the 

guidelines for the offenses committed. Appellant was sentenced 

to forty-eight (48) to ninety-six (96) months’ imprisonment. The 

maximum sentence for Solicitation for Involuntary Deviate 

Sexual Intercourse with a Person Less than 16 years old is two 

hundred and forty (240) months.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed February 11, 2016, pp. 9-10 

(internal record citations omitted); see also N.T. 3/17/2015, pp. 4-8.

We find no abuse of discretion in the trial court’s imposition of 

Appellant’s standard range sentence. Accordingly, Appellant’s excessiveness 

claim fails on the merits.

We agree with counsel that Appellant’s claim is wholly frivolous. 

Moreover, our independent review of the record has revealed no other 

preserved issues of arguable merit. Accordingly, we affirm the judgment of 

sentence.

Judgment of sentence affirmed. Counsel’s petition to withdraw 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/14/2016