J-S55016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LORENZO MILLS,

Appellant No. 58 WDA 2015

Appeal from the Judgment of Sentence Entered December 15, 2014

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0002190-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2015

Appellant, Lorenzo Mills, appeals from the judgment of sentence of 52 

to 104 months’ incarceration, imposed after he pled guilty to robbery. 

Appellant seeks to raise one issue challenging the discretionary aspects of 

his sentence. Additionally, his counsel, Emily M. Merski, Esq., seeks to 

withdraw her representation of Appellant pursuant to Anders v. California, 

386 U.S. 738 (1967), and Commonwealth v Santiago, 978 A.2d 349 (Pa. 

2009). After careful review, we affirm Appellant’s judgment of sentence and 

grant counsel’s petition to withdraw.

On November 4, 2014, Appellant (who was then represented by Maria 

Jean Krupicz, Esq., of the Erie County Office of the Public Defender) entered 

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* Retired Senior Judge assigned to the Superior Court.
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an open guilty plea to robbery, based on his involvement in a bank robbery 

in Erie, Pennsylvania, during which he told an employee of the bank that he 

had a gun. N.T. Plea, 11/4/14, at 9. On December 15, 2014, Appellant was 

sentenced to a term of 52 to 104 months’ incarceration for that offense. He 

did not file a post-sentence motion. However, Appellant filed a timely notice 

of appeal. The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. 

On May 29, 2015, Attorney Merski, also an Erie County public 

defender, entered her appearance with this Court on Appellant’s behalf. On 

June 25, 2015, she filed with this Court a petition to withdraw from 

representing Appellant. She has also filed an Anders brief, asserting that 

Appellant’s sentencing issue is frivolous, and that he has no other nonfrivolous issues he could assert on appeal. 

This Court must first pass upon counsel's petition to withdraw 

before reviewing the merits of the underlying issues presented 

by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 

287, 290 (Pa. Super. 2007) (en banc).

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
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(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.” Commonwealth v. Nischan, 928 A.2d 349, 

353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 

(2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014). 

After determining that counsel has satisfied these technical requirements of 

Anders and Santiago, this Court must then “conduct an independent 

review of the record to discern if there are any additional, non-frivolous 

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

In this case, Attorney Merski’s Anders brief complies with the abovestated requirements. Namely, she includes a summary of the relevant 

factual and procedural history, she refers to portions of the record that could 

arguably support Appellant’s sentencing claim, and she sets forth her 

conclusion that Appellant’s appeal is frivolous. She also explains her reasons 

for reaching that determination, and supports her rationale with citations to 

the record and pertinent legal authority. Attorney Merski also states in her 

petition to withdraw that she has supplied Appellant with a copy of her 

Anders brief, and she attaches a letter directed to Appellant in which she 
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informs him of the rights enumerated in Nischan.

1

 Accordingly, counsel has 

complied with the technical requirements for withdrawal. We will now 

independently review the record to determine if Appellant’s sentencing issue 

is frivolous, and to ascertain if there are any other non-frivolous issues 

Appellant could pursue on appeal. 

According to Attorney Merski, Appellant avers that the sentencing 

court abused its discretion by failing to consider the factors set forth in 42 

Pa.C.S. § 9721(b), and by imposing a sentence that “conflicts with the 

objectives” of that provision. Anders Brief at 5. Section 9721(b) requires

the court to impose a sentence “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). 

Appellant’s argument implicates the discretionary aspects of his 

sentence. See Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa. 

Super. 2013). “[I]ssues challenging the discretionary aspects of a sentence 

must be raised in a post-sentence motion or by presenting the claim to the 

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1 We note, however, that in her petition to withdraw, Attorney Merski states 

that her Anders brief “addresses the issues involved in this case which 

question the sufficiency and weight of the evidence and/or the other issues 

of arguable merit in this case, if any.” Petition, 6/24/15, at 1 (unnumbered; 

emphasis added). In light of the fact that Appellant pled guilty, we assume 

that this sentence was a typographical error by counsel, and not an 

indication that Appellant sought to raise sufficiency and weight claims on 

appeal. 
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trial judge during the sentencing proceedings.” Id. at 1042. “Absent such 

efforts, an objection to a discretionary aspect of sentence is waived.” Id. 

(citation omitted). Here, the record demonstrates that Appellant did not 

assert the sentencing issue he raises herein at the time of sentencing, or in 

a post-sentence motion. Consequently, his sentencing claim is waived, and 

Appellant’s asserting this issue on appeal would be frivolous. 

We note that Attorney Merski does not discuss the waiver of 

Appellant’s sentencing issue in her Anders brief; instead, she assesses the 

underlying merits of that claim and concludes it is frivolous. Had Appellant 

not waived his sentencing challenge, we would agree with Attorney Merski’s 

assessment for the following reasons. 

It is well-settled that appeals of discretionary aspects of a 

sentence are not reviewable as a matter of right. 

Commonwealth v. McNear, 852 A.2d 401, 407 (Pa. Super. 

2004). Before a challenge to the sentence will be heard on the 

merits, an appellant, in order to invoke the Court's jurisdiction, 

must set forth in his brief a separate and concise statement of 

reasons relied upon in support of his appeal. Pa.R.A.P. 2119(f); 

see Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa. 

Super. 2003).

[W]here the appellant's Rule 2119(f) statement sufficiently 

articulates the manner in which the sentence violates 

either a specific provision of the sentencing scheme set 

forth in the Sentencing Code or a particular fundamental 

norm underlying the sentencing process, [ ] such a 

statement [will] be deemed adequate to raise a substantial 

question so as to permit a grant of allowance of appeal of 

the discretionary aspects of the sentence.

Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 

627 (2002) (plurality) (citations omitted).
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Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006).

Here, Attorney Merski has included a Rule 2119(f) statement in her 

Anders brief, asserting that Appellant’s claim that the sentencing court 

failed to consider the 9721(b) factors in fashioning his sentence constitutes 

as substantial question for our review. Anders Brief at 5. We agree. See 

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

However, we would conclude that Appellant’s argument is frivolous, as 

the record clearly demonstrates that the court considered the required 

factors and imposed a sentence within the standard range of the Sentencing 

Guidelines. At the sentencing proceeding, defense counsel informed the 

court of Appellant’s age, family history, background of military service, 

education and work history, and the circumstances of his prior criminal 

record. N.T. Sentencing, 12/15/14, at 6-8. Counsel also discussed 

Appellant’s drug addiction and mental health issues. Id. at 7-10. Defense 

counsel informed the court that “[t]he standard range guidelines ... are 48 to 

60 months” and requested that the court impose a “low end standard range 

sentence.” Id. at 9. The court then heard from Appellant, who apologized 

for his actions. Id. 10-11. The Commonwealth also presented its argument 

that, in light of Appellant’s criminal history and the seriousness of his current 

offense, the court should impose a standard range sentence in the “higher 

end.” Id. at 11.
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After hearing this testimony, the court stated that it “considered the 

presentence investigative report in its entirety,” as well as “the Pennsylvania 

Sentencing Code and all its factors, the guidelines, and the various 

statements” made to the court that day. Id. at 12. The court emphasized 

that Appellant committed a “very serious offense” which impacted the 

victim, who was employed at the bank that Appellant robbed. Id. at 12. 

The court also stated that it “considered [Appellant’s] background and 

rehabilitative needs,” his “significant prior [criminal] history,” and his “drug 

and alcohol problem....” Id. at 12-13. The court acknowledged that 

Appellant’s crime “may well have been fueled by [his] drug addiction[,]” but 

reasoned that that fact “doesn’t excuse it....” Id. at 13. The court then 

stated that Appellant has “rehabilitative potential” but must “address ... [his] 

drug usage.” Id. The court also noted that Appellant entered a guilty plea, 

which “saved the victim from having to testify, and the Commonwealth from 

having to go through the cost of a trial.” Id. “Based on all of those factors,” 

the court imposed a minimum sentence within the standard range, and only 

four months above that which defense counsel requested.

This record convinces us that the court considered the protection of 

the public, the gravity of Appellant’s offense, his rehabilitative needs, and 

other pertinent factors in fashioning a reasonable, standard range sentence. 

Therefore, even had Appellant preserved his discretionary aspects of 

sentencing challenge, we would agree with Attorney Merski that it is 
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frivolous. Additionally, our review of the record reveals no other nonfrivolous issues Appellant could assert on appeal.2

 Therefore, we affirm his 

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

Judgment of sentence affirmed. Petition to withdraw granted.

P.J.E. Ford Elliott joins this memorandum.

Judge Strassburger concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2015

____________________________________________

2 We note that on August 24, 2015, Appellant filed a pro se brief with this 

Court. Therein, he presents the exact same claims recently deemed 

meritless by this Court in Commonwealth v. Stultz, 114 A.3d 865 (Pa. 

Super. 2015), namely that: (1) “because the 1968 Pennsylvania Constitution 

contains no savings clause, he was prosecuted under criminal statutes that 

were legally inoperative upon ratification of that constitution[;]” (2) “since 

there is no express state constitutional provision providing authority to enact 

a state crimes code, the trial court lacked jurisdiction[;]” and (3) “he was 

prosecuted under statutes that lacked an enacting clause.” Id. at 873. 

Based on our holding in Stultz, it is frivolous for Appellant to assert these 

same arguments herein.