J-S05024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

GREGORY MARK DUNBAR,

Appellant

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA

:

:

:

:

:

:

: No. 920 WDA 2014

Appeal from the Judgment of Sentence Entered May 23, 2014,

In the Court of Common Pleas of Erie County, 

Criminal Division, at No. CP-25-CR-0003143-2013.

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2015

Appellant, Gregory Mark Dunbar, appeals from the judgment of 

sentence entered following his convictions of robbery, attempt to commit 

burglary, and conspiracy to commit robbery. Appellate counsel has filed a 

petition to withdraw her representation and a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009), which govern a withdrawal from representation on 

direct appeal. We grant counsel’s petition to withdraw and affirm the 

judgment of sentence.

The procedural history of this case is summarized as follows. In 

relation to an incident in which Appellant and two other males attempted to 

forcibly enter a residence occupied by three people, one of whom was an 
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infant girl, Appellant was charged with one count each of robbery, attempted 

burglary, conspiracy to commit robbery, possession of a small amount 

marijuana, possession of drug paraphernalia, and three counts of recklessly 

endangering another person. On March 11, 2014, a jury convicted Appellant 

of the crimes of robbery, attempt to commit burglary, and conspiracy to 

commit robbery. On May 23, 2014, the trial court sentenced Appellant to 

consecutive terms of incarceration of sixty to 120 months for the conviction 

of robbery, twenty-one to forty-two months for the conviction of attempted 

burglary, and forty to eighty months for the conviction of conspiracy to 

commit robbery. Appellant’s aggregate sentence totaled 121 to 242 months 

of incarceration, which was to be served consecutively to a sentence 

previously imposed in Crawford County. Appellant was given credit for time 

served. That same day, Appellant filed a post-sentence motion seeking 

modification of his sentence, which the trial court denied on May 27, 2014. 

This timely appeal followed.

In lieu of filing a Pa.R.A.P. 1925(b) statement, Appellant’s counsel filed 

a statement of intent to file an Anders/McClendon brief, pursuant to 

Pa.R.A.P. 1925(c)(4). On June 16, 2014, the trial court filed a letter 

indicating it was not preparing a Pa.R.A.P. 1925(a) opinion in light of the 

notice of intent to withdraw filed by counsel under Pa.R.A.P. 1925(c)(4).
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As noted, counsel has filed a petition to withdraw from representation. 

Before we address the questions raised on appeal, we first must resolve 

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83 

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing 

requirements imposed upon an attorney who seeks to withdraw on appeal. 

The procedural mandates are that 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.

Id. at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within her petition 

to withdraw, counsel averred that she conducted a conscientious 

examination of the record. Following that review, counsel concluded that 

the present appeal is wholly frivolous. Counsel sent to Appellant a copy of 

the Anders brief and petition to withdraw, as well as a letter, a copy of 

which is attached to the petition to withdraw. In the letter, counsel advised 

Appellant that he could represent himself or that he could retain private 

counsel to represent him.

We now examine whether the brief satisfies the Supreme Court’s 

dictates in Santiago, which provide that
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in the Anders brief that accompanies court-appointed counsel’s 

petition to withdraw, counsel 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

Counsel’s brief is compliant with Santiago. It sets forth the history of 

this case and outlines pertinent case authority. We thus conclude that the 

procedural and briefing requirements for withdrawal have been met.

Counsel presents the following issue for our review:

Whether the Appellant’s sentence is manifestly excessive, clearly 

unreasonable and inconsistent with the objectives of the 

Pennsylvania Sentencing Code?

Appellant’s Brief at 3.

Appellant argues that the trial court abused its discretion in imposing 

the sentence in this case. Specifically, Appellant contends that the sentence 

imposed was harsh and excessive in light of the factors which should have 

been considered by the sentencing court.

It is well settled that there is no absolute right to appeal the 

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 

800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be 
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considered to be a petition for allowance of appeal. Commonwealth v. 

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to determine: 

(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, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)).

Whether a particular issue constitutes a substantial question about the 

appropriateness of a sentence is a question to be evaluated on a case-bycase basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001). As to what constitutes a substantial question, this Court does not 

accept bald assertions of sentencing errors. Commonwealth v. Malovich, 

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the 

reasons the sentencing court’s actions violated the sentencing code. Id. “A 

substantial question will be found where the defendant advances a colorable 
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argument that the sentence imposed is either inconsistent with a specific 

provision of the Sentencing Code or is contrary to the fundamental norms 

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d 

1128, 1133 (Pa. Super. 2009) (citations omitted).

Herein, the first three requirements of the four-part test are met; 

Appellant brought an appropriate appeal, raised the challenge in his postsentence motion, and included in his appellate brief the necessary separate 

concise statement of the reasons relied upon for allowance of appeal 

pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether 

Appellant has raised a substantial question requiring us to review the 

discretionary aspects of the sentence imposed by the trial court.

Specifically, in his Pa.R.A.P. 2119(f) statement, Appellant claims that 

the sentencing court failed to properly consider the factors set forth in 42 

Pa.C.S. § 9721(b). Appellant’s Brief at 4-6.1

Appellant claims that the trial court simply relied upon the gravity of 

the offense and failed to consider other circumstances in imposing a 

sentence upon Appellant in the standard range of the sentencing guidelines. 

Considering this claim to be an allegation that the sentencing court failed to 

consider factors set forth under 42 Pa.C.S. § 9721(b), we conclude that, in 

 

1 We note that the factors to be considered under 42 Pa.C.S. § 9721(b) 

include the protection of the public, gravity of offense in relation to impact 

on victim and community, and rehabilitative needs of the defendant.
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this instance, Appellant has raised a substantial question. See 

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

(concluding that the appellant raised a substantial question where it was 

alleged that the trial court failed to properly consider the factors set forth in 

42 Pa.C.S. § 9721(b)). Accordingly, because Appellant has stated a 

substantial question, we will address this claim on appeal.

It is undisputed that 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. Fullin, 892 A.2d at 847. In 

this context, an abuse of discretion is not shown merely by an error in 

judgment. Id. 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. Id. Appellate review with respect to a 

sentence within the guidelines is whether the sentence is “clearly 

unreasonable.” 42 Pa.C.S. § 9781(c)(2).

Indeed, the sentencing judge has broad discretion in determining the 

proper penalty, and this Court accords the sentencing court great deference, 

as it is the sentencing court that is in the best position to view the 

defendant’s character, displays of remorse, defiance, or indifference and the 

overall effect and nature of the crime. Commonwealth v. Walls, 926 A.2d 
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957, 961 (Pa. 2007) (quotations and citations omitted).2 As previously 

stated, when imposing a sentence, the sentencing court must consider “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). As we have stated, “a court is 

required to consider the particular circumstances of the offense and the 

character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 

(Pa. Super. 2002). “In particular, the court should refer to the defendant’s 

prior criminal record, his age, personal characteristics and his potential for 

rehabilitation.” Id.

 

2 The Walls Court instructed the following:

In making this “unreasonableness” inquiry, the General 

Assembly has set forth four factors that an appellate court is to 

consider:

(d) Review of the record.—In reviewing the record the appellate 

court shall have regard for:

(1) The nature of the 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 pre-sentence 

investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Id. at 963.
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Appellant asserts that, in fashioning his sentence, the sentencing court 

failed to properly consider Appellant’s relatively minor role in the commission 

of the robbery, the fact that he was not yielding the weapon during the 

crime, the fact that Appellant apologized to the victim and her family, and 

that Appellant is actively supported by his family. Appellant’s Brief at 7. 

Our review of the record reflects that, after the sentencing court 

reviewed a presentence report, heard testimony from a witness offered by 

Appellant, accepted Appellant’s allocution that included an apology, received 

a victim impact statement, and accepted letters about Appellant’s character, 

it made the following statement:

All right. Thank you. I’ve considered a number of things 

here, the presentence report in its entirety, and I’m going to 

make it a part of the record. I also received some letters in 

support of [Appellant] including a list of individuals who believe 

that he’s, in their estimation, a great man who is loved and 

missed. I’m going to make all those a part of the record and 

attach them to the presentence investigation report.

I’ve also considered the Pennsylvania Sentencing Code and 

its factors, the guidelines, and the various statements made here 

to me today. I’ve also considered of course the trial testimony 

that – in this case, and I’m familiar with the facts of the case as 

outlined at that time.

[Appellant], you’re not wasting my time. I mean, this is 

what I do. And as I looked at all this, it’s a little bit puzzling, 

because on the one hand you appear to have a lot of people that 

love and support you, and yet you have an extensive criminal 

record that indicates to me this [sic] in spite of this love and 

support, that has not been an influence on you, at least to the 

point where it’s deterred your criminal behavior.
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As to these crimes, these were extremely serious, and 

those victims were absolutely terrorized. It was a young child. 

And, again, nobody put the gun in your hand, but you were 

there. You knew better given your background.

And to say you were in the wrong place at the wrong time, 

that rings hollow, because a man with your background should 

have enough street smarts to know when you’re putting yourself 

in harm’s way. You were there because you wanted to be there. 

That’s the bottom line.

I still think, as much of a mess as you’ve made out of your 

life, there is still some rehabilitative potential, but you’ve earned 

yourself a considerable jail sentence for what you did. And 

you’re going to have to pay that price before you can return to 

your family.

Notes of Testimony, Sentencing Hearing at 12-13.

Upon review of the record, we conclude that the sentencing court 

presented adequate reasons for imposing the sentence within the standard 

range of the sentencing guidelines upon Appellant. There is no indication 

that the trial court ignored any relevant factors in fashioning the sentence. 

Accordingly, it is our determination that there was no abuse of discretion on 

the part of the sentencing court in fashioning Appellant’s sentence. Thus, 

we conclude this claim lacks merit.

We also have independently reviewed the record in order to determine 

whether there are any non-frivolous issues present in this case. 

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having 

concluded that there are no meritorious issues, we grant Appellant’s counsel 

permission to withdraw, and affirm the judgment of sentence.
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Petition of counsel to withdraw is granted. Judgment of sentence 

affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2015