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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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, 2013 

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 judgment 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 Anders 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 of sentence and grant 

counsel’s request to withdraw.

On July 2, 2013, Appellant entered an open guilty plea to one count 

each of unlawful contact with a minor, incest, and statutory sexual assault.1

 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.
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(See Guilty Plea, 7/02/12, at unnumbered page 1). The offenses involved 

his fourteen-year-old half-sister. Following receipt and review of a presentence investigation report (PSI), on November 25, 2013, the sentencing 

court sentenced Appellant to a term of incarceration of not less than sixtysix months nor more than 132 months on the first count, to be followed by 

an aggregate consecutive term of probation of eight years 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 modify sentence, 

which the trial court denied on that same date. The instant, timely appeal 

followed. On December 31, 2013, the trial court ordered Appellant to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Following the withdrawal of trial counsel and the appointment of 

new counsel, appellate counsel filed a statement of errors 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. 

 
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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 representing an 

appellant on direct appeal on the basis that the appeal is frivolous 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 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, 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 misstated.” 

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 frivolous and that no 

meritorious issues exist.” (Petition for Withdraw as Counsel, 7/08/14, at 
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unnumbered page 1). In addition, after his review of 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 to any facts or legal 

theories that arguably support the appeal, and explains 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 the Anders brief and the 

petition. See Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 

2005). Appellant did not respond. Because counsel has substantially 

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 sentence 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 of the sentence[.]” 

____________________________________________ 

2

 We note that Appellant preserved his discretionary aspects of sentence 

claim by filing a timely post-sentence motion for reconsideration of 

sentence. (See Motion to Modify and Reduce Sentence, 12/04/13); see 

also McAfee, infra at 275. 
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Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) 

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of 

Appellate Procedure 2119(f), articulate “a colorable argument that the 

sentence violates a particular provision of the Sentencing Code or is contrary 

to the fundamental norms underlying the sentencing scheme.”

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 prerequisites, 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 underlying 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 Commonwealth 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 has not objected to 
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the absence of the Rule 2119(f) statement, we will review 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 sentence 

was in the standard range of the Sentencing Guidelines. (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 the 

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 information 

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 guidelines, 

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). Here, 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 the 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). Therefore, Appellant has 
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not raised a substantial question that his sentence was excessive and 

unreasonable, and we decline to address this issue. 

Appellant’s issue does not merit relief. Further, this Court has 

conducted an independent review of the record as required 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