J-S47017-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONN MICHAEL WALCK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 25 MDA 2019

Appeal from the Judgment of Sentence Entered August 3, 2018

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0004520-2017

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

MEMORANDUM BY NICHOLS, J.: FILED: OCTOBER 18, 2019

Appellant Donn Michael Walck appeals from the judgment of sentence 

imposed following his open guilty plea to home improvement fraud.1

Appellant’s counsel has filed a petition to withdraw and an Anders/Santiago2

brief. We affirm and grant counsel’s petition to withdraw.

The relevant facts and procedural history of this appeal are as follows. 

On April 17, 2017, a homeowner paid $3,000 to Appellant as a deposit for 

home repairs. N.T., 4/23/18, at 4. Appellant never completed the work and 

kept the money. Id. Appellant was subsequently arrested and charged.

On April 23, 2018, Appellant entered an open guilty plea to the above 

count. The trial court ordered a pre-sentence investigation report (PSI) and 

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1 73 P.S. § 517.8(a)(2).

2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009).
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scheduled a sentencing hearing. The PSI indicated that Appellant had a prior 

record score of five and an offense gravity score of five. At sentencing, the 

trial court established that the Pennsylvania Sentencing Guidelines called for 

a minimum sentence of twelve to eighteen months’ imprisonment. N.T., 

8/3/18, at 4. The trial court sentenced Appellant to eighteen to eighty-four 

months’ incarceration. The trial court also ordered the sentence to run 

consecutive to unrelated Lehigh County sentences of thirty-nine to eighty-four 

months’ imprisonment.

Appellant filed a timely post-sentence motion, requesting that his 

sentence run concurrent to his Lehigh County sentence. The trial court denied 

the motion on December 3, 2018. 

Appellant timely filed a notice of appeal. Appellant’s counsel timely filed 

a court-ordered statement pursuant to Pa.R.A.P. 1925(c)(4), in which he 

indicated his intent to file an Anders brief. The trial court filed a Rule 1925(a) 

opinion. Subsequently, Appellant’s counsel withdrew due to a conflict of 

interest. On April 10, 2019, the trial court appointed conflict counsel. 

On June 18, 2019, conflict counsel filed an Anders/Santiago brief and 

a separate petition to withdraw. Appellant has not filed a pro se response or 

a brief with new counsel.

Counsel’s Anders/Santiago brief presents one issue for our review:

1. Whether the trial court abused its discretion in running the 

sentence in this matter consecutive to the sentences received 

in Lehigh County?
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Anders/Santiago Brief at 3.3

“When faced with a purported Anders brief, this Court may not review 

the merits of any possible underlying issues without first examining counsel’s 

request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. 

Super. 2008) (citation omitted). Counsel must comply with the technical 

requirements for petitioning to withdraw by (1) filing a petition for leave to 

withdraw stating that, after making a conscientious examination of the record, 

counsel has determined that the appeal would be frivolous; (2) providing a 

copy of the brief to the appellant; and (3) advising the appellant that he has 

the right to retain private counsel, proceed pro se, or raise additional 

arguments that the appellant considers worthy of the court’s attention. See 

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en 

banc). 

Additionally, counsel must file a brief that meets the requirements 

established by the Pennsylvania Supreme Court in Santiago, namely: 

(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. 

Santiago, 978 A.2d at 361. 

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3 The Commonwealth did not submit an appellate brief in this matter.
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Only after determining that counsel has satisfied these technical 

requirements may this Court “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); accord Commonwealth v. Yorgey, 

188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

Instantly, Appellant’s counsel has complied with the procedures for 

seeking withdrawal by filing a petition to withdraw, sending Appellant a letter 

explaining his appellate rights, and supplying Appellant with a copy of the 

Anders/Santiago brief. See Goodwin, 928 A.2d at 290. Moreover, 

counsel’s Anders/Santiago brief substantially complies with the 

requirements of Santiago. Counsel includes a summary of the relevant 

factual and procedural history and concludes that the appeal is frivolous.4 

Therefore, we proceed to address the issue raised in the Anders/Santiago

brief. 

The issue identified by counsel suggests that the trial court abused its 

discretion by running Appellant’s sentence consecutive to the Lehigh County 

sentences. Anders/Santiago Brief at 7. 

Our standard of review is as follows:

Upon entry of a guilty plea, a defendant generally waives all 

defects and defenses except those concerning the validity of the 

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4 Although the Anders/Santiago brief did not cite to the record, we do not 

find that an obstacle to our review.
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plea, the jurisdiction of the trial court, and the legality of the 

sentence imposed. However, when the plea agreement is open, 

containing no bargain for a specific or stated term of sentence, 

the defendant will not be precluded from appealing the 

discretionary aspects of his sentence.

Commonwealth v. Guth, 735 A.2d 709, 710 n.3 (Pa. Super. 1999) (citations 

omitted).

“[C]hallenges to the discretionary aspects of sentencing do not entitle 

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987, 

991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits 

of such claims, we must determine: 

(1) whether the appeal is timely; (2) whether Appellant preserved 

his issues; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence; and (4) whether 

the concise statement raises a substantial question that the 

sentence is inappropriate under the sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation 

omitted). 

Here, Appellant timely appealed and properly preserved his claim in a 

post-sentence motion and his Rule 1925(b) statement. See Corley, 31 A.3d 

at 296. Counsel also substantially complied with Pa.R.A.P. 2119(f). See id. 

Accordingly, we proceed to determine if Appellant’s issue raises a substantial 

question for our review. 

By way of background,

[w]e have stated that the imposition of consecutive rather than 

concurrent sentences lies within the sound discretion of the 

sentencing court. Long standing precedent of this Court 
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recognizes that 42 Pa.C.S. § 9721 affords the sentencing court 

discretion to impose its sentence concurrently or consecutively to 

other sentences being imposed at the same time or to sentences 

already imposed. A challenge to the imposition of consecutive 

rather than concurrent sentences does not present a substantial 

question regarding the discretionary aspects of sentence.

Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008) (citations 

omitted).

Subsequently, we held that a

defendant may raise a substantial question where he receives 

consecutive sentences within the guideline ranges if the case 

involves circumstances where the application of the guidelines 

would be clearly unreasonable, resulting in an excessive sentence; 

however, a bald claim of excessiveness due to the consecutive 

nature of a sentence will not raise a substantial question. 

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (citations 

and footnote omitted). “In determining whether a substantial question exists, 

this Court does not examine the merits of whether the sentence is actually 

excessive. 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.” Id. (citation omitted).

Instantly, we note that Appellant received a consecutive sentence within 

the standard guideline range. Further, the trial court’s sentencing 

determination is supported by the record, including Appellant’s PSI and plea 
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colloquy.

5

 Under these circumstances, Appellant’s sentence is not clearly 

unreasonable or unduly harsh. See id. 

Therefore, Appellant’s intended claim does not raise a substantial 

question, and we agree with counsel’s assessment that this claim is frivolous. 

Furthermore, our review of the record reveals no non-frivolous issues for 

appeal. See Flowers, 113 A.3d at 1250.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/2019

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5 Generally, “[w]here the [trial] court had the benefit of a [PSI], we can 

assume the sentencing court was aware of relevant information regarding the 

[Appellant]’s character and weighed those considerations along with 

mitigating statutory factors.” Commonwealth v. Griffin, 65 A.3d 932, 937 

(Pa. Super. 2013) (citation and quotation marks omitted).