J-S56035- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. STEVEN EARL ALLABAUGH, Appellant No. 24 MDA 2014

Appeal from the Judgment of Sentence November 25, 20 13 in the Court of Common Pleas of Luzerne County Criminal Division at No.: CP- 40

- CR -0000536-2013
BEFORE: PANELLA, J., WECHT, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 26, 2014 Appellant, Steven Earl Allabaugh, appeals from the j udgment of sentence entered following his guilty plea to statutory sexual assault and related offenses. Appellant’s counsel has filed a brief and a petition to withdraw under An ders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), alleging that the appeal is wholly frivolous. We affirm the judgment o f sentence and grant counsel’s request to withdraw. On July 2, 2013, Appellant entered an open guilty p lea to one count each of unlawful contact with a minor, incest, and statut ory sexual assault. 1

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* Retired Senior Judge assigned to the Superior Court.J-S56035- 14

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( See Guilty Plea, 7/02/12, at unnumbered page 1). The o ffenses involved his fourteen-year-old half-sister. Following receipt a nd review of a presentence investigation report (PSI), on November 25, 2 013, the sentencing court sentenced Appellant to a term of incarceration of not less than sixtysix months nor more than 132 months on the first coun t, to be followed by an aggregate consecutive term of probation of eight ye ars on the remaining counts with credit for time served. ( See N.T. Sentencing, 11/25/13, at 10- 11). Further, the parties stipulated that Appellant met the criteria for a sexually violent predator. ( See id. at 2-3). On December 4, 2013, Appellant filed a motion to mod ify sentence, which the trial court denied on that same date. The i nstant, timely appeal followed. On December 31, 2013, the trial court orde red Appellant to file a concise statement of errors complained of on appeal pursua nt to Pa.R.A.P. 1925(b). Following the withdrawal of trial counsel a nd the appointment of new counsel, appellate counsel filed a statement of erro rs complained of on appeal on March 20, 2014. See Pa.R.A.P. 1925(b). On April 17, 2014, the trial court filed an opinion. See Pa.R.A.P. 1925(a). On July 8, 2014, counsel filed a petition to withdraw and an Anders brief. On appeal, counsel in the Anders brief raises the following question for our review: (Footnote Continued) _______________________ 1 18 Pa. C.S.A. §§ 6318(a)(1), 4302(b)(2), and 3122( a)(1), respectively.J-S56035- 14

- 3 - Whether the [t]rial [c]ourt abused its discretion in sentencing the Appellant[?] ( Anders Brief, at 1). Appellant’s court -appointed counsel has petitioned for permission to withdraw and has submitted an Anders brief, which is procedurally proper for counsel seeking to withdraw on direct appeal. See Anders , supra . Court-appointed counsel who seeks to withdraw from rep resenting an appellant on direct appeal on the basis that the appea l is frivolous must: (1) provide a summary of the procedural history and f acts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set fo rth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appea l is frivolous. Counsel should articulate the relevant fact s of record, controlling case law, and/or statutes on point that hav e led to the conclusion that the appeal is frivolous. Santiago , supra at 361. When we receive an Anders brief, we first rule on the petition to withdraw and then review the merits of the underlying issues. See Commonwealth v. Garang , 9 A.3d 237, 240-41 (Pa. Super. 2010). In addition, “[p]art and parcel of Anders is our Court’s duty to review the record to insure no issues of arguable merit have been missed or mi sstated.” Commonwealth v. Vilsaint , 893 A.2d 753, 755 (Pa. Super. 2006). In the instant matter, counsel has substantially complied with all the requirements of Anders and Santiago . Specifically, he has petitioned this Court to withdraw because the appeal was “wholly frivol ous and that no meritorious issues exist.” (Petition for Withdraw as Co unsel, 7/08/14, atJ-S56035- 14

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unnumbered page 1). In addition, after his review o f the record, counsel filed a brief with this Court that provides a summary of the procedural history and facts with citations to the record, refers t o any facts or legal theories that arguably support the appeal, and explai ns why he believes the appeal is frivolous. ( See Anders Brief, at 3-7). Lastly, he has attached, as an exhibit to his petition to withdraw, a copy of the letter sent to Appellant giving notice of his rights, and including a copy of th e Anders brief and the petition. See Commonwealth v. Millisock , 873 A.2d 748, 749 (Pa. Super. 2005). Appellant did not respond. Because counsel has su bstantially complied with the dictates of Anders , Santiago , and Millisock , we will examine the issue set forth in the Anders brief that counsel believes has arguable merit. See Garang , supra at 240- 41. On appeal, the Anders brief challenges the discretionary aspects of his
sentence. 2 The right to appeal the discretionary aspects of a sente nce is not absolute. See Commonwealth v. McAfee , 849 A.2d 270, 274 (Pa. Super. 2004) , appeal denied , 860 A.2d 122 (Pa. 2004). When an appellant challenges the discretionary aspects of the sentence imposed, he must present “a substantial question as to the appropriateness o f the sentence[.]”

____________________________________________ 2 We note that Appellant preserved his discretionary asp ects of sentence claim by filing a timely post-sentence motion for recon sideration of sentence. ( See Motion to Modify and Reduce Sentence, 12/04/13); see also McAfee , infra at 275.J-S56035- 14

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Commonwealth v. Anderson , 830 A.2d 1013, 1017 (Pa. Super. 2003) (citations omitted). An appellant must, pursuant to Pe nnsylvania Rule of Appellate Procedure 2119(f), articulate “a colorable ar gument that the
sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing sche me. ” Commonwealth v. Kimbrough , 872 A.2d 1244, 1263 (Pa. Super. 2005) ( en banc ), appeal denied , 887 A.2d 1240 (Pa. 2005) (citation omitted). If an appellant’s Rule 2119(f) statement meets these prere quisites, we determine whether a substantial question exists. See Commonwealth v. Goggins , 748 A.2d 721, 727 (Pa. Super. 2000), appeal denied , 759 A.2d 920 (Pa. 2000) . “Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts unde rlying the appeal, which are necessary only to decide the appeal on the merits.” Id. (emphases in original). The Anders brief in the present case does not contain a Rule 2119( f)
statement. “A failure to include the Rule 2119(f ) statement does not automatically waive an appellant’s argument; however, we are precluded from reaching the merits of the claim when the Commonw ealth lodges an objection to the omission of the statement.” Commonwealth v. Roser , 914 A.2d 447, 457 (Pa. Super. 2006), appeal denied , 927 A.2d 624 (Pa. 2007) (citation omitted). Because the Commonwealth ha s not objected toJ-S56035- 14

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the absence of the Rule 2119(f) statement, we will rev iew Appellant’s claim. ( See Commonwealth’s Letter, 6/24/14, at unnumbered page 1 ). Appellant claims that his sentence was unreasonable and excessive. ( See Anders Brief, at 6). However, Appellant concedes that his sent ence was in the standard range of the Sentencing Guideline s. ( See id. ). A claim that a sentence was excessive and unreasonable can raise a substantial question. See Commonwealth v. Mouzon , 812 A.2d 617, 627 (Pa. 2002). However,

[w]hen imposing a sentence, a court is required to consider the particular circumstances of the offense and t he character of the defendant. . . . Where the sentencing court had the benefit of a presentence investigation report (“PSI ”), we can assume the sentencing court was aware of relevant inform ation regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. Further, where a sentence is within the standard range of the g uidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code. Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (some internal quotation marks and citations omitted). Her e, the sentencing court stated that it had reviewed the PSI. ( See N.T. Sentencing, 11/25/13, at 10). The sentencing court then sentenced Appellant in t he standard range; thus, under our caselaw, the sentence is not excessive or unreasonable. See Moury , supra ; see also Commonwealth v. Cruz-Centeno , 668 A.2d 536, 545-46 (Pa. Super. 1995) , appeal denied , 676 A.2d 1195 (Pa. 1996) (stating combination of PSI and standard range sentence , absent more, cannot be considered excessive or unreasonable). Therefo re, Appellant hasJ-S56035- 14

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not raised a substantial question that his sentence was e xcessive and unreasonable, and we decline to address this issue. Appellant’s issue does not merit relief. Further, thi s Court has conducted an independent review of the record as requir ed by Anders and Santiago and finds that no non-frivolous issues exist. Judgment of sentence affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2014