J-S50023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RAYMOND W. SHELTON

Appellant No. 1343 MDA 2015

Appeal from the Judgment of Sentence entered June 29, 2015

In the Court of Common Pleas of Adams County

Criminal Division at No: CP-01-CR-0000732-2014; CP-01-CR-0001196-2014

BEFORE: MUNDY, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 22, 2016

Appellant, Raymond W. Shelton, appeals from the judgment of 

sentence entered in the Court of Common Pleas of Adams County, following 

his convictions of theft by deception and bad check.1 Appellant’s counsel 

has filed a petition to withdraw, alleging that this appeal is wholly frivolous, 

and has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1968) 

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, 

we affirm Appellant’s judgment of sentence, and grant counsel’s petition to 

withdraw. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Respectively, 18 Pa.C.S.A. § 3922(a)(1), graded as a felony of the third 

degree, and 18 Pa.C.S.A. § 4105(a)(1), graded as a misdemeanor of the 

second degree.
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The trial court summarized the relevant background information as 

follows. 

On April 6, 2015, Appellant appeared before the [c]ourt with 

counsel and entered pleas of guilty to theft by deception and bad 

check. The pleas were entered and accepted by the [c]ourt 

without any sentencing agreement. A pre-sentence investigation 

was ordered. Sentencing ultimately occurred on June 29, 2015. 

Based on the information contained in the pre-sentence 

investigation and the comments of the Appellant and counsel, 

Appellant was sentenced on the theft by deception conviction to 

serve no less than one and a half nor more than five years in a 

state correctional institution. On the bad check conviction, the 

Appellant was sentenced to serve no less than one year nor 

more than two years in a state correctional institution. The 

sentences were imposed consecutively to each other and 

consecutive to a sentence the Appellant was serving in the state 

of Maryland. 

Prior to imposing sentence, the sentencing court noted relevant 

information in the pre-sentence investigation which indicated 

Appellant had been convicted on at least 45 prior occasions for 

similar conduct. At that time, the Court opined that efforts at 

rehabilitation have obviously proved to be unsuccessful. 

Nevertheless, the sentencing court exercised restraint as the 

sentences which were imposed fell within the sentencing 

guidelines. Specifically, the pre-sentence investigation revealed 

that the theft conviction carried an offense gravity score of five 

and a prior record score of five which provided for a standard 

minimum range of 12 to 18 months.[2] The bad check conviction 

carried an offense gravity score of two which, when coupled with 

a prior record score of five, revealed a standard minimum 

sentencing range of 1 to 9 months with an aggr[av]ated range of 

up to 12 months.

Trial Court Opinion (T.C.O.), 11/19/15, at 1-2. 

____________________________________________

2 A third degree felony has a maximum of seven years. 18 Pa.C.S.A. 

§ 1103(3). 
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Appellant timely filed a post-sentence motion for modification of his 

sentence, which the trial court denied. On July 31, 2015, Appellant timely 

filed a notice of appeal. The trial court and Appellant complied with 

Pa.R.A.P. 1925. 

Appellant’s counsel filed in this Court a motion to withdraw as counsel 

along with an Anders brief, wherein counsel raises one issue for our review: 

“Whether the lower court abused its discretion in sentencing Appellant to the 

aggravated range on one case and the top of the standard guidelines on the 

other, for an aggregate of two and a half (2 1⁄2) to seven (7) years in state 

prison.” Anders Brief at 6. 

We must first address counsel’s petition to withdraw before reviewing 

the merits of Appellant’s appeal. Commonwealth v. Goodwin, 928 A.2d 

287, 290 (Pa. Super. 2007) (en banc). It is well-established that, in 

requesting a withdrawal, counsel must satisfy the following procedural 

requirements: 1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has determined 

that the appeal would be frivolous; 2) provide a copy of the brief to the 

defendant; and 3) advise the defendant that he or she has the right to retain 

private counsel, proceed pro se, or raise additional arguments that the 

defendant considers worthy of the court’s attention. Commonwealth v. 

Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

Instantly, counsel’s petition to withdraw from representation provides 

that counsel reviewed the record and concluded that the appeal is frivolous. 
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Furthermore, counsel notified Appellant that he was seeking permission to 

withdraw and provided Appellant with copies of the petition to withdraw and 

his Anders brief. Counsel also advised Appellant of his right to retain new 

counsel, proceed pro se, or raise any additional points he deems worthy of 

this Court’s attention. Accordingly, we conclude that counsel has satisfied 

the procedural requirements of Anders. 

We next must determine whether counsel’s Anders brief complies with 

the substantive requirements of Santiago, wherein our Supreme 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.

Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates 

that he has complied with the briefing requirements of Santiago. We, 

therefore, conclude that counsel has satisfied the minimum requirements of 

Anders/Santiago.

Once counsel has met his obligations, “it then becomes the 

responsibility of the reviewing court to make a full examination of the 

proceedings and make an independent judgment to decide whether the 
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appeal is in fact wholly frivolous.” Id. at 355 n.5. Thus, we now turn to the 

merits of Appellant’s appeal. 

Appellant challenges only discretionary aspects of his sentence. 

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa. Super. 2011). As this Court explained in Allen, 

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: (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.

Id.

As Appellant has satisfied the first three requirements, we must 

determine whether Appellant has presented a substantial question that the 

sentence appealed from is not appropriate under the Sentencing Code. “The 

determination of what constitutes a substantial question must be evaluated 

on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. 

Super. 2011). “An appellant making an excessiveness claim raises a 

substantial question when he sufficiently articulates the manner in which the 

sentence violates either a specific provision of the sentencing scheme set 

forth in the Sentencing Code or a particular fundamental norm underlying 

the sentencing process.” Commonwealth v. Raven, 97 A.3d 1244, 1253 
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(Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (internal 

citations and quotations omitted). However, 

[i]f the sentence imposed is within statutory limits, there is no 

abuse of discretion, unless the sentence is manifestly excessive 

as to inflict too severe a punishment. Absent an abuse of 

discretion, a sentence imposed by the trial court will not be 

disturbed on appeal.[3] In imposing sentence, the sentencing 

court must consider the particular circumstances of the offense 

and the character of the defendant in reaching its determination.

Commonwealth v. Martin, 477 A.2d 555, 557 (Pa. Super. 1984) (citations 

omitted). 

Appellant argues his sentences, although within the guidelines, were 

based primarily on his prior record, which was already factored into the 

guidelines. Anders Brief at 10. Appellant also argues there were mitigating 

circumstances and he took responsibility for actions so he “should have 

received some benefit for not going to trial.” Id. at 11. Appellant also 

points out the Commonwealth only requested a sentence of one to three 

years in state prison. Id. Appellant further argues he raises a substantial 

question, asserting “the aggregate sentence of two and a half (21⁄2) to seven 

____________________________________________

3

“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. Zirkle, 107 A.3d 

127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa. 2015).
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(7) years is not consistent with the gravity of the violation, the need for 

public protection, and the defendant’s needs for rehabilitation.” Id. 

As Appellant acknowledges, he was sentenced within the guidelines on 

both of his convictions. In sentencing him, the trial court based its 

sentencing scheme on Appellant’s threat to public safety and his history of 

repeated failures at rehabilitation, stating, “Your claims of you’re tired of 

breaking the law really are hollow. A number jumps off the sheet, quite 

frankly, I’ve never seen one so high as 45 criminal convictions,” and 

“[Appellant] has 45 prior convictions for similar conduct. Efforts at 

rehabilitation have obviously proved to be unsuccessful.” N.T. Sentencing, 

6/29/15, at 6-7; T.C.O., 11/19/15, at 1-4. Accordingly, Appellant’s sentence 

was not “manifestly excessive as to inflict too severe a punishment” and 

Appellant has not demonstrated an abuse of the trial court’s discretion. See 

Martin, 477 A.2d at 557-58 (Sentence not manifestly excessive when within 

guidelines and trial court considered case’s circumstances, gravity of 

offense, appellant’s rehabilitative needs, and protection of public.) As such, 

Appellant fails to raise a substantial question for our review. 

We have conducted an independent review of the record and 

addressed Appellant’s arguments on appeal. Based on our conclusions 

above, we agree with counsel that the issue Appellant seeks to litigate in this 

appeal is wholly frivolous. Also, we do not discern any non-frivolous issues 

that Appellant could have raised. We, therefore, grant counsel’s petition to 

withdraw and affirm the judgment of sentence.
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Judgment of sentence affirmed. Petition to withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2016