J-S96024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

RANDY SCOTT STALLSMITH

Appellant No. 828 WDA 2016

Appeal from the Judgment of Sentence May 17, 2016

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000161-2016

BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 10, 2017

Randy Scott Stallsmith appeals from the judgment of sentence of three 

to six months incarceration following his guilty plea to one count of driving 

under a suspended license, his twenty-second offense of that nature. 

Counsel has filed a petition to withdraw pursuant to Anders v. California, 

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.3d 349 (Pa. 

2009). We grant counsel’s petition and affirm. 

The record reveals the following. On November 6, 2015, Appellant 

was issued a citation for driving without a valid Pennsylvania registration, 

driving without proof of financial responsibility, and driving with a suspended 

license – habitual offender. On May 4, 2016, Appellant signed a statement 

acknowledging his rights and indicating that he understood the potential 
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sentence for the charges he faced, including thirty-days to six-months 

incarceration for driving with a suspended license. He entered an open 

guilty plea to one count of driving with a suspended license, his twentysecond offense. The court conducted the mandated colloquy, accepted 

Appellant’s plea, and nolle prossed the remaining charges. 

On May 17, 2016, the court held a sentencing hearing. At that 

hearing, the court reviewed Appellant’s extensive criminal history and heard 

testimony in support of Appellant’s character and willingness to change. The 

court emphasized that Appellant had twenty-one prior offenses for driving 

with a suspended license. As a result, the court imposed a guideline range 

sentence of three months to six months incarceration. The court then 

denied Appellant’s entreaty for work release. 

Appellant filed a timely motion for reconsideration requesting that the 

court modify his sentence to permit work release. The court denied 

Appellant’s motion, and Appellant filed a timely notice of appeal. In 

response to the court’s order to file a Rule 1925(b) statement of errors 

complained of on appeal, counsel noted her intent to seek to withdraw on 

appeal pursuant to Anders, supra. Before we can proceed to the merits of 

the issues raised herein, we first must address counsel’s request to 

withdraw. In order to withdraw during direct appeal, 

First, counsel must petition the court for leave to withdraw and 

state that after making a conscientious examination of the 

record, she has determined that the appeal is frivolous; second, 
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she must file a brief referring to any issues in the record of 

arguable merit; and third, she must furnish a copy of the brief to 

the defendant and advise him of his right to retain new counsel 

or to himself raise any additional points he deems worth of the 

Superior Court’s attention. 

Santiago, supra at 351. In Santiago, the Court outlined the following 

specific requirements for an Anders brief: 

[I]n 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 arguable 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. 

Id. at 361. Once counsel has satisfied the above requirements: 

The court – not counsel – then proceeds, after a full 

examination of all the proceedings, to decide whether the case 

is wholly frivolous. If it so finds it may grant counsel’s request 

to withdraw and dismiss the appeal insofar as federal 

requirements are concerned, or proceed to a decision on the 

merits, if state law so requires. On the other hand, if it finds 

any of the legal points arguable on their merits (and therefore 

not frivolous) it must, prior to decision, afford the indigent the 

assistance of counsel to argue the appeal. 

Id. at 354 (quoting Anders, supra at 744). 

In her petition to withdraw, counsel averred that she reviewed the 

record and relevant case law and believed that were no non-frivolous issues 

to be raised on appeal. Counsel also filed with this Court a brief raising one 

issue she felt might arguably support the present appeal. Counsel notified 
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Appellant of her request to withdraw and provided a copy of the brief and

petition to withdraw. Counsel advised Appellant that he had a right to retain 

private counsel or proceed pro se to submit any additional arguments to this 

Court. Hence, counsel has complied with the procedural mandates of 

Anders/Santiago. 

We turn now to counsel’s Anders brief. Counsel’s brief sets forth the 

complete factual and procedural summary of Appellant’s case, with citation 

to his plea hearing. Counsel included the mandated statement pursuant to 

Pa.R.A.P. 2119(f) and presented one issue that she believes might arguably 

support this appeal. Counsel set forth that issue as follows: “Was the 

sentence in this case manifestly excessive and clearly unreasonable, and not 

individualized as required by law?” Appellant’s brief at 1. After a review of 

the relevant case law, counsel concluded this issue lacked merit. 

Appellant’s issue assails the discretionary aspects of his sentence. At 

the outset, we are mindful of our standard of review: “[s]entencing 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.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 

2014) (citation omitted). We observe that “the right to appellate review of 

the discretionary aspects of a sentence is not absolute, and must be 

considered as a petition for permission to appeal.” Id. In order to invoke 

this Court’s jurisdiction: 
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[W]e conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal; (2) whether the 

issue was properly preserved at sentencing or in a motion to 

reconsider and modify sentence; (3) whether appellant’s brief 

has a fatal defect; and (4) whether there is a substantial 

question that the sentence appeal from is not appropriate under 

the Sentencing Code.

Id. 

Appellant contends that his sentence was manifestly excessive and 

clearly unreasonable since the court did not grant him work release as a 

condition of his sentence. In addition, he maintains that he should have 

received a lighter sentence since he took responsibility for his actions, 

expressed remorse, and presented testimony supporting him. Thus, 

Appellant concludes that his sentencing was not appropriate under the 

sentencing codes. 

As noted above, there is no absolute right to an appeal to the 

discretionary aspects of a person’s sentence. Rather, an “[a]ppeal is 

permitted only after this Court determines that there is a substantial 

question that the sentence was not appropriate under the sentencing code.” 

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (citation 

omitted). Generally, whether an issue raises a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Swope, 123 A.3d 

333, 338 (Pa.Super. 2015). Moreover, 

A substantial question exists only when the appellant advances a 

colorable argument that the sentencing judge’s actions were 

either: (1) inconsistent with a specific provision of the 
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Sentencing Code; or (2) contrary to the fundamental norms 

which underlie the sentencing process.

Id. 

In determining whether a substantial question exists as to the 

excessiveness of a sentence, we do not examine the merits of whether the 

sentence is excessive, but rather, “we look to whether the appellant has 

forwarded a plausible argument that the sentence, when it is within the 

guideline ranges, is clearly unreasonable.” Dodge, supra at 1260. 

Instantly, the trial court reviewed Appellant’s extensive criminal 

history, and heard testimony from Appellant and from witnesses supporting 

Appellant. Upon hearing this testimony, including statements as to 

Appellant’s remorse, the court curbed Appellant’s sentence for a conviction 

unrelated to this matter. N.T. Sentencing, 5/17/16, at 20. With regard to 

this conviction, the court emphasized that Appellant had twenty-one 

previous citations for driving with a suspended license, and determined that 

Appellant’s history provided no indication that his aberrant conduct would 

cease. As such, it sentenced Appellant to a standard range sentence of 

three-months to sixth months incarceration for that offense and denied his 

request for work release. We find that Appellant has not advanced a 

plausible argument that his sentence is clearly unreasonable, and hence, he 

has not presented a substantial question for our review. 
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After an independent review of the record, we concur with counsel’s 

assessment that this appeal is wholly frivolous and that there are no 

preserved issues that could arguably support this appeal. Thus, we conclude 

that counsel may withdraw. 

Petition of Tina M. Fryling, Esquire, to withdraw as counsel is granted. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2017

 

 
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