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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

CHRISTOPHER DOUGLASS, : No. 729 WDA 2018

:

Appellant :

Appeal from the Judgment of Sentence, November 1, 2016,

in the Court of Common Pleas of Venango County

Criminal Division at Nos. CP-61-CR-0000196-2016,

CP-61-CR-0000197-2016

BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 04, 2019

Christopher Douglass appeals from the November 1, 2016 judgment of

sentence of the Court of Common Pleas of Venango County after he pled guilty

to 21 counts of sexual abuse of children, possession of child pornography,

criminal use of a communication facility, and indecent assault of a person with

a mental disability.1 Appellant received an aggregate sentence of 45 months

to 35 years of imprisonment. Matthew C. Parson, Esq. (“Attorney Parson”), has filed an application to withdraw, alleging that the appeal is frivolous,

1 18 Pa.C.S.A. §§ 6312(c), 6312(d), 7512(a), and 3126(a)(6), respectively.
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accompanied by an Anders brief.2 After careful review, we grant counsel’s

petition to withdraw and affirm the judgment of sentence. The relevant factual background and procedural history as found by the

trial court is as follows:

On July 25, 2016, [appellant] entered into a

negotiated guilty plea in which the Commonwealth

nolle prossed the remaining counts at criminal

docket numbers 196-2016 and 197-2016 in exchange

for his pleading guilty to the following counts: at

196-20[1]6, Counts One through Twenty-one- Distribution of Photos/Videos of Child Sex Acts, all

violations of 18 Pa.C.S.A. § 6312(c), Count

Twenty-two-Possession of Child Pornography, in

violation of 18 Pa.C.S.A. § 6312(d); and Count

Twenty-three-Criminal Use of a Communication

Facility, a violation of 18 Pa.C.S.A. § 7512(a). At

docket number 197-2016, [appellant] pled guilty to

Count Three-Indecent Assault/Person with Mental

Disability, in violation of 18 Pa.C.S.A. § 3126(a)(6).

On November 11, 2016, [appellant] was sentenced at

docket number 196-2016, at Counts One to

Twenty-one, to a term of incarceration of one (1) to

ten (10) years, at Count Twenty-two to a term of

incarceration of one (1) to ten (10) years, and at

Count Twenty-three to a term of incarceration of

nine (9) to (24) twenty-four months. That same day,

[appellant] was sentenced at Count Three of docket

number 197-2016 to a term of incarceration of

nine (9) months to five (5) years. In our November 1,

2016 Sentence Order[,] we indicated the following as

to the above-cited sentences:

The sentence imposed at C.R. 196-2016

on counts 1, 2, and 3 are intended to run

consecutive to each other. Counts 4

through 22 are intended to run concurrent

2 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).
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with each other and concurrent with the

sentence imposed at Count 3. The

sentence imposed at Count 23 is intended

to run concurrent with the sentence

imposed at Count 3. The sentence

imposed at C.R. 197-2016, Count 3, is

intended to run consecutive to the

sentence imposed at Count 3 of

C.R. 196-2016 for a total aggregate

sentence of three (3) years, nine (9)

months minimum to a maximum of

thirty-five (35) years.

11/1/2016 Sentencing Order.

On November 9, 2016, [appellant] filed a timely

post-sentence motion, which was subsequently

denied by this Court on November 17 of the same

year. On October 11, 2017, [appellant] filed a PCRA

petition with this Court and [Attorney Parson] was

appointed by Order dated October 16, 2017. On

April 16, 2018, a PCRA hearing was held, and on

April 17th, this Court ordered that [appellant’s]

appellate rights be reinstated. On April 26, 2018,

[appellant] filed his Notice of Appeal with the Superior

Court and thereafter received notice from this Court

directing compliance with Pa.R.A.P. 1925. [Appellant]

filed his Concise Statement on May 7, 2018.[3]

Trial court opinion, 5/17/18 at 1-2.

Appellant raises the following issue for this court’s review: “Whether

the Sentencing Court erred as a matter of law or abused its discretion when

the Sentencing Court ordered an excessive sentence[?]” (Appellant’s brief at

5.)

3 The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on May 17,

2018.
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On July 9, 2018, Attorney Parson filed in this court a petition for leave

to withdraw as counsel, because he found the appeal to be

“wholly frivolous.” (Petition for leave to withdraw as counsel, 7/9/18 at 1,

¶ 3 (emphasis in original).) On July 9, 2018, Attorney Parson filed an Anders

brief. This court denied the petition to withdraw due to deficiencies in the

petition and Attorney Parson’s failure to comply with Anders as it was not

clear that he sent a complete brief to appellant.

When this court denied the petition to withdraw, we remanded the case

to the trial court with instruction to counsel to file either a compliant

Anders/Santiago brief and an accurate petition to withdraw as counsel or an

advocate’s brief within 30 days of the date of this court’s memorandum.

Attorney Parson filed a new petition for leave to withdraw as counsel and a

timely Anders brief on November 21, 2018.

A request by appointed counsel to withdraw pursuant

to Anders and Santiago gives rise to certain

requirements and obligations, for both appointed

counsel and this Court. Commonwealth v. Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super. 2015). These requirements and the significant

protection they provide to an Anders

appellant arise because a criminal

defendant has a constitutional right to a

direct appeal and to counsel on that

appeal. Commonwealth v. Woods, 939

A.2d 896, 898 (Pa.Super. 2007). This

Court has summarized these

requirements as follows:

Direct appeal counsel seeking

to withdraw under Anders
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must file a petition averring

that, after a conscientious

examination of the record,

counsel finds the appeal to be

wholly frivolous. Counsel

must also file an Anders brief

setting forth issues that might

arguably support the appeal

along with any other issues

necessary for the effective

appellate presentation

thereof.

Anders counsel must also

provide a copy of the Anders

petition and brief to the

appellant, advising the

appellant of the right to retain

new counsel, proceed pro se

or raise additional points

worthy of the Court’s

attention.

Woods, 939 A.2d at 898 (citations

omitted).

There are also requirements as to the

precise requirements of an Anders brief:

[T]he Anders brief that

accompanies court-appointed

counsel’s petition to withdraw

. . . 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 appeal is
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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.

Id. at 1248. If this Court determines that appointed

counsel has met these obligations, it is then our

responsibility “to make a full examination of the

proceedings and make an independent judgment to

decide whether the appeal is in fact wholly frivolous.”

Id. at 1248. In so doing, we review not only the

issues identified by appointed counsel in the Anders

brief, but examine all of the proceedings to “make

certain that appointed counsel has not overlooked the

existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Regarding the requirements of Anders, Attorney Parson has filed a

petition that avers that, after a conscientious examination of the record, he

finds the appeal to be wholly frivolous. He has also filed a brief that attempts

to set forth the issues that might arguably support the appeal. He identifies

the issue in the statement of questions involved in the brief as: “Whether the

Sentencing Court erred as a matter of law or abused its discretion when the

Sentencing Court ordered an excessive sentence[?]” (Anders brief at 5.) The

body of the argument section of the brief addresses the issue contained in the

statement of questions involved, so the issue set forth in the brief complies
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with Anders. A review of the record reveals that Attorney Parson complied

with the requirements of Anders concerning notification.4

With respect to the requirements of Santiago, Attorney Parson has

provided a summary of the procedural history and facts. He has also set forth

his conclusion that the appeal is frivolous. Attorney Parson reaches this

conclusion because the trial court imposition of standard range minimum

sentences and maximum sentences at the statutory limit does not constitute

an abuse of discretion.

Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5. As Attorney Parson has fulfilled

the requirements of Santiago, we now turn to the merits of appellant’s

appeal.

The possible issue raised in the brief is that the trial court erred as a

matter of law or abused its discretion when it ordered an excessive sentence.

4

In Paragraph 3 of the petition to withdraw, Attorney Parson refers to the

sentence order of 45 months to 36 years. A review of the record reveals that

the Sentence Order filed on November 4, 2016, states that the aggregate

sentence is 3 years 9 months to 35 years as opposed to the 36 years listed in

the petition. (Sentence order, 11/4/16 at 3-4.) In addition, Attorney Parson

identifies appellant in the caption of the petition as “Chrisopher Douglas.”

(Petition for leave to withdraw as counsel, 11/19/18 at 1.) The record clearly

states that appellant’s name is “Christopher Douglass.” While these two

errors are not substantive, Attorney Parson should submit an accurate

petition.
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In reviewing the record, the trial court had the benefit of a pre-sentence

investigation report when it imposed the sentence on appellant. The trial court

imposed minimum sentences within the sentencing guidelines. The trial court

imposed statutory maximums. However, many of the counts ran concurrent

to one another such that the aggregate maximum sentence totaled 35 years.

The trial court explained the basis for the sentence: “My sentence is based

on the conduct. My sentence is based on the conduct since this has occurred,

the plea and everything that is in front of me and in considering everything

that is presented in the presentence investigation.” (Notes of testimony,

11/1/16 at 24.)

Attorney Parson states correctly that a discretionary aspect of

sentencing can only be overturned if the sentencing court abused its

discretion. See Commonwealth v. Raybuck, 915 A.2d 212 (Pa.Super.

2000).

We note that:

Sentencing is a matter vested in the sound discretion

of the trial court and the lower court’s judgment of

sentence will not be disturbed by an appellate court

absent an abuse of discretion. To constitute an abuse

of discretion, a sentence must either exceed the

statutory limits or be patently excessive. When

reviewing sentencing matters, we must accord the

sentencing court great weight as it 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.
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Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa.Super. 1990) (citations

omitted).

Here, the trial court explained its reasoning behind the sentence, the

sentence was within the standard range for minimum sentences, and no

sentence exceeded the statutory maximum. There is nothing the record that

suggests the sentence was either excessive or unreasonable.

Further, where a sentence is within the standard

range of the guidelines, Pennsylvania law views the

sentence as appropriate under the Sentencing Code.

See Commonwealth v. Cruz-Centeno, 447

Pa.Super. 98, 668 A.2d 536 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating

combination of PSI and standard range sentence,

absent more, cannot be considered excessive or

unreasonable).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).

Attorney Parson is correct when he determined the issue on appeal was

frivolous. This court agrees with Attorney Parson that the trial court did not

commit a manifest abuse of discretion.

Additionally, our independent review of the entire record has not

disclosed any potentially non-frivolous issues. Consequently, we grant

counsel’s petition to withdraw, and we affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/4/2019