J-S24035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWIN COLON-RODRIGUEZ

Appellant No. 1475 MDA 2015

Appeal from the Judgment of Sentence July 27, 2015

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0004468-2014;

CP-06-CR-0004472-2014; CP-06-CR-0004473-2014;

CP-06-CR-0004477-2014; CP-06-CR-0004478-2014

BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 13, 2016

Appellant, Edwin Colon-Rodriguez, appeals from the judgment of 

sentence entered in the Berks County Court of Common Pleas, following his 

open guilty plea to six counts of delivery of a controlled substance and two 

counts of conspiracy.1 We affirm and grant counsel’s petition to withdraw. 

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

Appellant sold drugs to an undercover police officer on July 17, 2013, 

December 12, 2013, December 19, 2013, January 22, 2014, and February 4, 

2014. Police arrested Appellant for the five drug transactions, and the 

Commonwealth charged him with various drug-related crimes at five 

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1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(a)(1), respectively. 
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separate dockets. Specifically, the Commonwealth charged Appellant with 

the following offenses: at docket # CP-06-CR-0004478-2014, delivery of a 

controlled substance, possession with intent to deliver a controlled substance 

(“PWID”), and possession of a controlled substance, in connection with the 

July 17, 2013 drug transaction; at docket # CP-06-CR-0004468-2014, 

delivery of a controlled substance, PWID, and possession of a controlled 

substance, in connection with the December 12, 2013 drug transaction; at 

docket # CP-06-CR-0004472-2014, one count each of delivery of a 

controlled substance, PWID, and possession of a controlled substance, and 

three counts of conspiracy, in connection with the December 19, 2013 drug 

transaction; at docket # CP-06-CR-0004477-2014, two counts each of 

delivery of a controlled substance, PWID, and possession of a controlled 

substance, and six counts of conspiracy, in connection with the January 22, 

2014 drug transaction; and at docket # CP-06-CR-0004473-2014, delivery 

of a controlled substance, PWID, and possession of a controlled substance, 

in connection with the February 4, 2014 drug transaction. 

On July 27, 2015, Appellant entered an open guilty plea to six counts 

of delivery of a controlled substance and two counts of conspiracy, in 

exchange for the Commonwealth’s request that the court dismiss the 

remaining charges against Appellant. With the benefit of a pre-sentence 

(“PSI”) report, the court immediately sentenced Appellant to an aggregate 

term of eight (8) to twenty (20) years’ imprisonment. The court imposed 
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some of the sentences for Appellant’s convictions consecutively. At 

Appellant’s sentencing hearing, trial counsel objected to the court’s use of 

Appellant’s prior PWID conviction to increase his prior record score because 

the prior PWID conviction also subjected Appellant to a discretionary 

sentencing enhancement under 35 P.S. § 780-115(a). The court overruled 

trial counsel’s objection. The court, however, did not invoke the 

discretionary sentencing enhancement and used Appellant’s prior PWID 

conviction only in the calculation of Appellant’s prior record score. The 

sentence imposed was substantially less than the statutory maximum 

without consideration of the discretionary sentencing enhancement. 

On July 28, 2015, Appellant filed a post-sentence motion in which he 

complained the court improperly double counted his prior PWID conviction 

when it imposed his sentence. The court denied the motion on July 29, 

2015. On August 19, 2015, trial counsel filed a petition to withdraw, which 

the court granted on August 20, 2015. When the court granted trial 

counsel’s petition to withdraw, the court appointed new counsel to represent 

Appellant on direct appeal. Appellate counsel timely filed a notice of appeal 

on August 27, 2015. On September 4, 2015, the court ordered Appellant to 

file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b), and Appellant timely complied on September 24, 2015. 

On December 21, 2015, appellate counsel filed a petition for leave to 

withdraw and Anders brief with this Court. 
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As a preliminary matter, counsel seeks to withdraw her representation 

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 

493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 

(2009). Anders and Santiago require counsel to: 1) petition the Court for 

leave to withdraw, certifying that after a thorough review of the record, 

counsel has concluded the issues to be raised are wholly frivolous; 2) file a 

brief referring to anything in the record that might arguably support the 

appeal; and 3) furnish a copy of the brief to the appellant and advise him of 

his right to obtain new counsel or file a pro se brief to raise any additional 

points the appellant deems worthy of review. Santiago, supra at 173-79, 

978 A.2d at 358-61. Substantial compliance with these requirements is 

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 

2007). 

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw 

representation:

Neither Anders nor McClendon2requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To 

repeat, what the brief must provide under Anders are 

references to anything in the record that might arguably 

support the appeal. 

* * *

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2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
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Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that 

arguably supports the appeal. 

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[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 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. 

Id. at 178-79, 978 A.2d at 361. 

Instantly, appellate counsel filed a petition to withdraw. The petition 

states counsel conducted a conscientious review of the record and 

determined the appeal is wholly frivolous. Counsel also supplied Appellant 

with a copy of the brief and a letter explaining Appellant’s right to retain new 

counsel or to proceed pro se to raise any additional issues Appellant deems 

worthy of this Court’s attention. (See Letter to Appellant, dated 12/21/16, 

attached to Petition for Leave to Withdraw as Counsel.) In the Anders brief, 

counsel provides a summary of the facts and procedural history of the case. 

Counsel’s argument refers to relevant law that might arguably support 

Appellant’s issues. Counsel further states the reasons for her conclusion 

that the appeal is wholly frivolous. Therefore, counsel has substantially 

complied with the requirements of Anders and Santiago. 
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Counsel raises the following issue on Appellant’s behalf:

WHETHER THE SENTENCING COURT ABUSED ITS 

DISCRETION WHEN IT IMPOSED AN EXCESSIVE 

SENTENCE THAT IMPROPERLY DOUBLE COUNTED A PRIOR 

CONVICTION UNDER 35 [P.S.] § 780-113(A)(30), WHERE: 

FIRST, THE SENTENCING COURT ERRONEOUSLY 

UTILIZED [APPELLANT’S] PRIOR CONVICTION 

UNDER 35 [P.S.] § 780-113(A)(30) TO INCREASE 

HIS PRIOR RECORD SCORE TO FIVE (5), WITHOUT 

THAT INCLUSION, [APPELLANT’S] PRIOR RECORD 

SCORE WOULD BE A THREE (3) PURSUANT TO THE 

SENTENCING GUIDELINES. 

SECOND, THE SENTENCING COURT UTILIZED 

[APPELLANT’S] PRIOR CONVICTION UNDER 35 [P.S.] 

§ 780-113(A)(30) TO IMPOSE A SENTENCING 

ENHANCEMENT UNDER 35 P.S. § 780-115(A) THAT 

INCREASED THE MAXIMUM PENALTY, CONSIDERING 

THE PRIOR CONVICTION AS AN ELEMENT OF THE 

CURRENT OFFENSES. 

(Anders Brief at 12). 

Appellant argues the court improperly double counted his prior PWID 

conviction under 35 P.S. § 780-113(a)(30), when it imposed Appellant’s 

sentence. Appellant asserts the court first used his prior PWID conviction to 

increase his prior record score to five, which increased the sentencing 

guideline ranges for Appellant’s convictions. Appellant also avers the court 

used his prior PWID conviction to impose a discretionary sentencing 

enhancement under 35 P.S. § 780-115(a), which doubled the statutory 

maximum sentence for each of Appellant’s delivery of a controlled substance 

convictions. Appellant further complains the court considered Appellant’s 

prior PWID conviction again when it chose to impose some of Appellant’s 
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sentences consecutively. Appellant concludes the court’s erroneous 

consideration of his prior PWID conviction multiple times at sentencing made 

his sentence excessive, and we should vacate and remand for resentencing. 

As presented, Appellant challenges the discretionary aspects of his 

sentence.3 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) 

(stating claim that sentence is manifestly excessive challenges discretionary 

aspects of sentencing). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary 

aspects of 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 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see [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 appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b). 

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3

“[W]hile a guilty plea which includes sentence negotiation ordinarily 

precludes a defendant from contesting the validity of his...sentence other 

than to argue that the sentence is illegal or that the sentencing court did not

have jurisdiction, open plea agreements are an exception in which a 

defendant will not be precluded from appealing the discretionary aspects of 

the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 

(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one 

in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s 

guilty plea included no negotiated sentence. 
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary 

aspects of sentence are generally waived if they are not raised at the 

sentencing hearing or raised in a motion to modify the sentence imposed at 

that hearing. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating that there is a substantial 

question as to the appropriateness of the sentence under the Sentencing 

Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); 

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth 

the reasons relied upon for allowance of appeal furthers the purpose evident 

in the Sentencing Code as a whole of limiting any challenges to the trial 

court’s evaluation of the multitude of factors impinging on the sentencing 

decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 

112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), 

cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009). 

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the 

appellant advances a colorable argument that the sentencing judge’s actions 
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were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the 

sentencing process.” Sierra, supra at 913. A claim of excessiveness can 

raise a substantial question as to the appropriateness of a sentence under 

the Sentencing Code, even if the sentence is within the statutory limits. 

Mouzon, supra at 430, 812 A.2d at 624. Importantly, a claim that the 

court double-counted a defendant’s prior record raises a substantial 

question. Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa.Super. 

2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000). 

Additionally: 

Pennsylvania law affords the sentencing court discretion to 

impose [a] sentence concurrently or consecutively to other 

sentences being imposed at the same time or to sentences 

already imposed. Any challenge to the exercise of this 

discretion does not raise a substantial question. In fact, 

this Court has recognized the imposition of consecutive, 

rather than concurrent, sentences may raise a substantial 

question in only the most extreme circumstances, such as 

where the aggregate sentence is unduly harsh, considering 

the nature of the crimes and the length of imprisonment.

Commonwealth v. Austin. 66 A.3d 798, 808 (Pa.Super. 2013), appeal 

denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation 

marks omitted). 

Here, Appellant properly preserved his discretionary aspects of 

sentencing claim in his post-sentence motion and Rule 2119(f) statement; 

and his claim that the court double counted his prior PWID conviction 

appears to raise a substantial question as to the discretionary aspect of his 
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sentence. See Goggins, supra. 

Our standard of review of a challenge to the discretionary aspects of 

sentencing is as follows: 

Sentencing 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. In this 

context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, 

by reference to the record, that the sentencing court 

ignored or misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or arrived at 

a manifestly unreasonable decision. 

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal 

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v. 

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)). 

Pursuant to Section 9721(b), “the court shall follow the general 

principle that the sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of the offense as it 

relates to the impact on the life of the victim and on the community, and the 

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he 

court shall make as part of the record, and disclose in open court at the time 

of sentencing, a statement of the reason or reasons for the sentence 

imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a 

lengthy discourse for its reasons for imposing a sentence or specifically 

reference the statute in question....” Commonwealth v. Crump, 995 A.2d 

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 
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(2010). Rather, the record as a whole must reflect the sentencing court’s 

consideration of the facts of the case and the defendant’s character. Id. “In 

particular, the court should refer to the defendant’s prior criminal record, his 

age, personal characteristics and his potential for rehabilitation.” 

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal 

denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148, 

125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). As a general rule, “a sentencing 

court may not ‘double count’ factors already taken into account in the 

sentencing guidelines.” Goggins, supra at 732. Nevertheless, “courts are 

permitted to use prior conviction history and other factors included in the 

guidelines if, they are used to supplement other extraneous sentencing 

information.” Commonwealth v. Shugars, 895 A.2d 1270, 1275 

(Pa.Super. 2006). 

Instantly, the record belies Appellant’s contentions. At sentencing, the 

court determined Appellant’s prior record score was five based partially on 

Appellant’s prior PWID conviction. The court then proceeded to sentence 

Appellant to an aggregate term of eight (8) to twenty (20) years’ 

imprisonment. Significantly, Appellant’s sentence at each count was within 

the recommended sentencing guidelines and well below the statutory 

maximum penalty without consideration of the discretionary sentencing 

enhancement under 35 P.S. § 780-115(a). Thus, the record demonstrates 

the court considered Appellant’s prior PWID conviction once to calculate 
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Appellant’s prior record score. 

Additionally, there is no merit to Appellant’s claim that the court 

improperly considered Appellant’s prior PWID conviction when the court 

imposed some of Appellant’s sentences consecutively. The court had the 

benefit of a PSI report at sentencing. Therefore, we can presume it 

considered the relevant factors when it sentenced Appellant. See Tirado, 

supra at 368 (holding where sentencing court had benefit of PSI, law 

presumes court was aware of and weighed relevant information regarding 

defendant’s character and mitigating factors). The court also stated on the 

record that it considered the information in the PSI report, the fact that 

Appellant pled guilty, the sentencing guidelines, Appellant’s prior record, 

Appellant’s statement at sentencing, and trial counsel’s statement at 

sentencing, when it imposed Appellant’s sentences. The court further 

indicated it imposed some of Appellant’s sentences consecutively to hold 

Appellant accountable for his actions and to provide Appellant access to the 

drug and alcohol treatment programs in prison. Thus, the court relied on 

many factors other than Appellant’s prior PWID conviction when it imposed 

some of Appellant’s sentences consecutively. 

Therefore, the court did not erroneously consider Appellant’s prior 

PWID conviction multiple times at sentencing, and Appellant’s claim that the 

court double counted his prior PWID conviction merits no relief. See 

Shugars, supra. Accordingly, we affirm the judgment of sentence and 
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grant counsel’s petition to withdraw.

Judgment of sentence affirmed; counsel’s petition to withdraw 

granted. 

Judge Musmanno joins this memorandum.

Judge Bowes files a concurring statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/13/2016