J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AARON JACOB SHKURATOFF

,

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1436 WDA 2019

Appeal from the Judgment of Sentence Entered August 20, 2019

i n the Court of Common Pleas of Crawford County Criminal Division at No(s): CP

- 20

- CR

- 0000046

- 2019

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 27, 2020

Aaron Jacob Shkuratoff ( “ Shkuratoff ” ) appeals from the judgment of

sentence entered following his conviction of retail theft. 1 Counsel for

Shkuratoff has filed a Petition to Withdraw from representation and a brief

pursu ant to Anders v. California , 386 U.S. 738 (1967), and

Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We grant counsel ’ s

Petition to Withdraw

, and affirm Shkuratoff ’ s judgment of se ntence.

On August 20, 2019, Shkuratoff pled guilty to retail theft

, a first

- degree

misdemeanor. On August 20, 2019, the trial court sentenced Shkuratoff to

serve four to twenty

- four months

, l ess one day

, in the Crawford County

_________________ __________ ______ ____ _______

1 See 18 Pa.C.S.A. § 3929(a)(1).J

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Correctional Facility, plus a fine and costs. 2 The trial court awarded two days

of credit for time served. Shkuratoff did not file a post

- sentence motion.

Shkuratoff timely filed the instant appeal, after which counsel filed a

Statement of her intention to file an Anders bri ef in lieu of filing a concise

statement

.

In the Anders B rief, Shkuratoff presents one claim for our review:

“ Whether [Shkuratoff ’ s] sentence is manifestly excessive, clearly

unreasonable and inconsistent with the objectives of the Sentencing Code? ”

Anders Brief at 3.

Before this Court may consider the merits of the issue raised, we must

address counsel ’ s Petition to Withdraw from representation. See

Commonwealth v. Daniels

, 999 A.2d 590, 593 (Pa. Super. 2010) (stating

that, “ [w]hen presented with an Anders brief, this Court may

not review the merits of the underlying issues without first passing on the

request to withdraw. ” ). According to Santiago , in the Anders brief that

accompanies 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

_________________ __________ ______ ____ _______

2 O n June 7, 2019, Shkuratoff appeared for his scheduled sentencing hearing. At that time, Shkuratoff expressed his desire to withdraw his guilty plea. As a result, t he trial court entered an Order directing that the sentencing date be rescheduled, and that Shkuratoff file any motion to withdraw his plea within 30 days. Trial Court Order, 6/10/19. Shkuratoff did not file a motion to withdraw his plea. At the Augus t 20, 2019, sentencing hearing, Shkuratoff indicated his desire to proceed with sentencing. N.T., 8/20/19, at 2.J

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counsel ’ s conclusion that the appeal is frivolous; and (4) state

counsel ’ s r easons 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.

In her Petition to Withdraw , counsel states that she has reviewed the

record and concluded that the appeal is frivolous. Additionally, counsel

notified Shkuratoff that she is seeking permission to withdraw, furnished

Shkuratoff with copies of the Petition to Wit hdraw and Anders Brief, and

advised Shkuratoff of his right to retain new counsel or proceed pro se , to

raise any points he believes worthy of this Court ’ s attention. See id.

Accordingly, counsel has satisfied the procedural requirements of Anders

.

We n ext determine whether counsel ’ s Anders Brief meets the

substantive dictates of Santiago

. Our review of the Anders Brief discloses

that counsel has provided the facts and procedural history of the case.

Additionally, counsel refers to one substantive claim that could arguably

support the appeal and states her conclusion t hat the issue is wholly frivolous.

Because appe llate counsel has satisfied the above requirements, we will

address the substantive issue raised in the Anders Brief. Additionally, we

m ust conduct “ a simple review of the record to ascertain if there appear on its

face to be arguably meritorious issues that counsel, intentionally or not,

missed or misstated. ” Commonwealth v. Dempster

, 187 A.3d 266, 272

(Pa. Super. 2018) ( en banc ); see also Commonwealth v. Yorgey

, 188 A.3dJ

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1190, 1197 (Pa. Super. 2018) ( en banc ) (noting that Anders requires the

reviewing court to “ review ‘ the case ’ as presented in the entire record with

consideration first of issues raised by counsel. ” ).

Shkuratoff claims that the trial court abused its discretion at sentencing.

Anders Brief at 6. Shkuratoff asserts that the sentence is manifestly

excessive, as he had “ admitted his wrongdoing and even paid for other items

in his possession at the time [that] the offense occurred. ” Id. In addition,

Shkuratoff points out his admission at sentencing that he suffers from a long

standing drug abuse problem, and that he was under the influence at the time

that he committed the offense. Id. Further, Skuratoff’s counsel indicated

that “ the majority of [Shkuratoff ’ s] significant prior criminal record ste mmed

from 2005 and 2006 [,] and a burglary conviction as a juvenile. ” Id. at 7.

Shkuratoff directs our attention to other mitigating evidence presented at the

sentencing hearing, i.e. , that he ha d obtained his electrician ’s certificate and

was in the proc ess of getting a career position, and that he is the main

breadwinner of his family. Id.

“ A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. ” Commonwealth v. Grays

,

167 A.3d 793, 815 (Pa. Super. 2017). Prior to reaching the merits of a

discretionary sentencing issue,

[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 preser ved at sentencing or in a motion to reconsider and modify sentence, seeJ

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[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 appropri ate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Grays , 167 A.3d at 815

- 16 (citation omitted).

Our review of the record discloses that, although Shkuratoff timely filed

his Notice of Appeal, he failed to preserve his sentencing challenge at

sentencing or in a motion to reconsider and modify the sentence.

See Commonwealth v. Ahmad , 961 A.2d 884, 886 (Pa. Super.

2008) (stating that “ [a] challenge to an allege d excessive sentence is a

challenge to the discretionary aspects of a sentence. Issues challenging the

discretionary aspects of a sentence must be raised in a post

- sentence motion

or by presenting the claim to the trial court during the sentencing proceed ings.

Absent such efforts, an objection to a discretionary aspect of a sentence is

waived. ” ) (citations omitted). Because Sh k uratoff did not preserve this issue

for appellate review, the claim is waived. See id. We therefore agree w ith

counsel that the claim is without merit and frivolous. 3 See Commonwealth

v. Kalichak

, 943 A.2d 285, 291 (Pa. Super. 2008) (holding that when an

issue has been waived

, “pursuing th[e] matter on direct appeal is frivolous”).

_________________ __________ ______ ____ _______

3 Even if Shkuratoff had preserved this claim, we would agree with counsel’s

assessment that the claim lacks merit and is frivolous. The tr ial court sentenced Shkuratoff in the standard range of the sentencing guidelines. In addition, the record reflects that the trial court considered the mitigating evidence presented by Shkuratoff at the sentencing hearing. See N.T., 8/20/19, at 7

- 8 (wher ein Shkuratoff’s counsel presented mitigating evidence). Thus, we would conclude that the sentence is not excessive, and we discern no abuse of discretion by the trial court.J

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Finally, we have conducted “a simple review of the record” and have

found no “arguably meritorious issues that counsel, intentionally or not,

missed or misstated.” Dempster

, 187 A.3d at 272. Accordingly, we grant

counsel’s Petition to Withdraw, and affirm the judgment of sentence.

Petition to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/27/2020