J-S90028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AARON GARDNER

Appellant No. 1481 EDA 2016

Appeal from the Judgment of Sentence Dated April 8, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0006452-2015

BEFORE: OTT, J., SOLANO, J., and JENKINS, J. 

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 12, 2016

Appellant Aaron Gardner appeals from the judgment of sentence of 2 

to 5 years’ incarceration, followed by 5 years’ probation, imposed after he 

pled guilty to Criminal Solicitation1to commit Involuntary Deviate Sexual 

Intercourse with a complainant less than 16 years of age.2 With this appeal, 

Appellant’s counsel has filed a petition to withdraw and an Anders3 brief, 

stating that the appeal is wholly frivolous. After careful review, we affirm 

and grant counsel’s petition to withdraw.

____________________________________________

1 18 Pa.C.S. § 902.

2 18 Pa.C.S. § 3123(a)(7).

3 Anders v. California, 386 U.S. 738 (1967).
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On August 12, 2015, Appellant was charged with Involuntary Deviate 

Sexual Intercourse (complainant less than 16 years of age) and related 

offenses. On March 14, 2016, the Commonwealth moved to amend Count I 

of the information to charge Appellant with Criminal Solicitation to commit 

Involuntary Deviate Sexual Intercourse. Appellant did not object to the 

amendment, and the trial court allowed it. Immediately thereafter, 

Appellant entered an open plea of guilty to Count I of the amended 

information. The Commonwealth withdrew the remaining charges pursuant 

to the plea. Trial Ct. Op., 7/12/16, at 1-2; N.T., 3/14/16, at 8-9.

On April 8, 2016, the trial court held a sentencing hearing, where it 

noted Appellant’s criminal history score was zero and his offense gravity 

level was eleven. Consequently, the sentencing guidelines recommended a 

standard range sentence of 36-54 months’ incarceration. N.T., 4/8/16, at 3-

4. By way of mitigation, Appellant’s counsel discussed Appellant’s mental 

health issues, including bipolar disorder, schizophrenia, and depression, and 

noted Appellant’s acceptance of responsibility. Id. at 4-8. Appellant’s 

counsel requested a sentence that would allow Appellant “to get the 

treatment he needs” and stay close to his family. Id. at 9. The 

Commonwealth requested a sentence with a minimum period of 

incarceration no lower than the bottom of the standard guideline range of 36 

months. Id. at 15. 
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At the end of the sentencing hearing, the trial court imposed a 

sentence of 2 to 5 years’ incarceration, followed by 5 years’ probation. The 

court explained its reasoning for imposing this sentence on the record as 

follows:

Before this morning[,] I had an opportunity to review the 

presentence investigation as well as the diagnostic reports 

attached to the presentence investigation, notably the 

psychosexual evaluation from Dr. Surbeck as well as the 

psychological evaluation of Dr. Germadagez. Such is made part 

of the case record. Given my review of these materials, I think 

mitigation has been offered to the Court. Mr. Gardner has 

suffered from mental health challenges for an appreciable period 

of time. I was frankly somewhat surprised by the number of 

hospitalizations that he’s had to date particularly given his age. 

I think somewhere these mental health challenges play the role 

in what brings Mr. Gardner to Court today. To what extent, I’m 

not certain. That’s not my area of expertise. I’m also mindful 

that this is Mr. Gardner’s first criminal Court contact, but 

recognize as I pointed out the guidelines do reflect a prior record 

score of zero, yet the sentencing commission has set a standard 

range of 36 to 54 months. I also think Mr. Gardner’s in dire 

need of offense specific treatment. I think that treatment is 

going to be made a bit more of a challenge than perhaps usual 

because of the overlay of [] mental health issues that Mr. 

Gardner, unfortunately is going to be facing a multitask 

situation. He’s going to have to deal with the mental health 

issue, stabilize the mental health issues and get those squared 

away as reasonably possible, probably before the offense specific 

treatment will be effective. While finding mitigation, I don’t find 

that I’ve been presented that which would warrant a complete 

deviation from the guidelines. I’m also mindful of the difference 

between the offense specific treatment programs offered at 

Delaware County Prison and the state system, most notably the 

length. I think the length of that offered at the state level of the 

18 months is more appropriate in these circumstances for the 

reasons indicated. 

N.T., 4/8/16, at 20-21.
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On April 15, 2016, while still represented by plea counsel, Appellant 

filed a pro se petition for reconsideration of sentence. On April 18, 2016, 

the trial court dismissed Appellant’s petition because “a defendant’s pro se

lodging when represented of-record by an attorney is a legal nullity which a 

court cannot adjudicate.” Order, 4/18/16, at 2 n.3 (citing Commonwealth 

v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007), appeal denied, 936 

A.2d 40 (Pa. 2007)). 

On April 21, 2016, Appellant’s plea counsel filed a petition to withdraw. 

At the hearing on that petition, Appellant stated that he did not object to the 

relief sought in plea counsel’s petition, and the court granted it. N.T., 

5/4/16, at 4-5. 

On May 9, 2016, Appellant, represented by new counsel, filed a timely 

notice of appeal.4 On May 11, 2016, the trial court ordered Appellant to file a 

Concise Statement of Matters Complained of on Appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b). On May 27, 2016, 

Appellant’s counsel timely filed the following statement: “In accordance with 

____________________________________________

4 Regardless of whether Appellant’s pro se motion for reconsideration of 

sentence tolled the time for filing a notice of appeal, the appeal was timely. 

At the earliest, Appellant was required to file a notice of appeal within 30 

days of the imposition of sentence. See Pa.R.Crim.P. 720. May 8, 2016, the 

30th day following the date of sentencing, was a Sunday. When computing a 

filing period, “[if] the last day of any such period shall fall on Saturday or 

Sunday . . . such day shall be omitted from the computation.” 1 Pa.C.S. § 

1908. Therefore, Appellant’s notice of appeal, which was filed on Monday, 

May 9, was timely.
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Pennsylvania Rule of Appellate Procedure 1925(c)(4), counsel informs the 

Court that he intends to file an Anders brief with the Superior Court.” In its 

subsequent opinion, the trial court set forth the procedural history of the 

case and then stated, “After reviewing this matter’s salient record and in 

light of defense counsel’s stated intent to lodge an Anders brief with the 

Superior Court, further exposition by this court regarding Defendant 

Gardner’s conviction is unnecessary.” Trial Ct. Op. at 5 (footnote and 

citations omitted).

In the Anders brief, counsel raises a single issue for our review:

Whether the prison term of 2 to 5 years is harsh and 

excessive under the circumstances? 

Anders Brief at 1.

“When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 

2010). An Anders brief shall comply with the requirements set forth by the 

Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d 

349 (Pa. 2009):

[W]e hold that in 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, 
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and/or statutes on point that have led to the conclusion 

that the appeal is frivolous.

Id. at 361.

Counsel seeking to withdraw on direct appeal must meet the following 

obligations to his or her client:

Counsel also must provide a copy of the Anders brief to 

his client. Attending the brief must be a letter that advises 

the client of his right to: (1) retain new counsel to pursue 

the appeal; (2) proceed pro se on appeal; or (3) raise any 

points that the appellant deems worthy of the court[’]s 

attention in addition to the points raised by counsel in the 

Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal 

quotation marks and citation omitted). “Once counsel has satisfied the 

above requirements, it is then this Court’s duty to conduct its own review of 

the trial court’s proceedings and render an independent judgment as to 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting 

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally, 

“this Court must 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) 

(footnote and citations omitted).

In this appeal, counsel’s September 8, 2016 letter to Appellant 

indicates that counsel provided a copy of the Anders brief to Appellant and 

advised Appellant of his right to either retain new counsel or proceed pro se
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on appeal, and to raise any issues he wished to bring to this Court’s 

attention.5Further, counsel’s Anders brief complies with prevailing law in 

that counsel has provided a procedural and factual summary of the case with 

references to the record. Counsel additionally advances relevant portions of 

the record that arguably support Appellant’s claim on appeal. Ultimately, 

counsel cites his reasons and conclusion that this appeal is frivolous. 

Anders Brief at 4-7.

Appellant challenges the discretionary aspects of his sentence, which 

are not appealable as of right. Commonwealth v. Colon, 102 A.3d 1033, 

1042 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).6 Before 

we exercise jurisdiction to reach the merits of Appellant’s issue, we must 

determine: 

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

preserved his issue; (3) whether Appellant's brief includes a 

concise statement of the reasons relied upon for allowance of an 

appeal with respect to the discretionary aspects of his sentence; 

and (4) whether the concise statement raises a substantial 

____________________________________________

5 Appellant did not file an additional pro se or counseled brief with this Court.

6

 “Upon entry of a guilty plea, a defendant generally waives all defects and 

defenses except those concerning the validity of the 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.) (citations omitted), appeal denied, 743 A.2d 915 

(Pa. 1999).
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question regarding the sentence’s impropriety under the 

Sentencing Code. 

Id. at 1042-43 (citation omitted). Only if the appeal satisfies each of these 

four requirements may we proceed to decide the substantive merits of the 

case. Id. at 1043.

In the current case, Appellant filed a timely notice of appeal. He also 

filed a post-sentence motion seeking reconsideration of his sentence. 

Although he filed that pro se motion while represented by counsel, his 

attorney filed a motion to withdraw less than a week later and never filed a 

post-sentence motion on Appellant’s behalf. Moreover, by the time of the 

hearing on counsel’s motion to withdraw, the period for filing a postsentence motion had expired. Under these circumstances, we decline to find 

waiver. See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super. 

2015) (declining to find waiver where appellant filed pro se post-sentence 

motion, counsel did not file one, and court did not appoint new counsel until 

after deadline for filing post-sentence motion).

 Additionally, counsel’s Anders brief contains a concise statement of 

the reasons for which Appellant seeks allowance of an appeal, in compliance 

with Rule 2119(f) of the Rules of Appellate Procedure. See Anders Brief at 

4-5.7 The statement sets forth the claim that the sentence is “harsh and 

____________________________________________

7 Although the statement is labeled “Petition for Allowance of Appeal from 

the Discretionary Aspects of the Judgement of Sentence,” without reference 

(Footnote Continued Next Page)
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excessive under the circumstances.” Id. at 4. As counsel recognizes, “[a] 

bald assertion that a sentence is ‘harsh and excessive’” does not raise a 

substantial question. Id. (citing Commonwealth v. Giordano, 121 A.3d 

998, 1008 (Pa. Super. 2015), appeal denied, 131 A.3d 490 (Pa. 2016)).8 

Appellant’s statement therefore fails to raise a substantial question under 

our case law.

Even if Appellant had raised a substantial question, however, we would 

find his claim to be meritless. We apply the following standard of review:

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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation 

omitted), appeal denied, 117 A.3d 297 (Pa. 2015). 

This Court has held that “where the sentencing court imposed a 

standard-range sentence with the benefit of a pre-sentence report, we will 

(Footnote Continued) _______________________

to Rule 2119(f), we conclude that Appellant substantially complied with the 

rule. See Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 

2011) (finding substantial compliance although the statement was not 

labeled as a Rule 2119(f) statement).

8 Counsel notes that a claim that a sentence is “so manifestly excessive as to 

constitute too severe a punishment” does raise a substantial question. 

Counsel concludes, however, “[t]hat is not the case here.” Anders Brief at 

5. We agree.
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not consider the sentence excessive.” Commonwealth v. Corley, 31 A.3d 

293, 298 (Pa. Super. 2011); see also Commonwealth v. Moury, 992 A.2d 

162, 171 (Pa. Super. 2010) (“where a sentence is within the standard range 

of the guidelines, Pennsylvania law views the sentence as appropriate under 

the Sentencing Code”). Under such circumstances, “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.’” Corley, 31 A.3d at 298 (quoting 

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).

Here, Appellant’s sentence is in the mitigated range of the Sentencing 

Guidelines. Further, in imposing the sentence, the trial court considered a 

presentence report. N.T. 4/8/16, at 20. In light of these circumstances, we 

conclude that Appellant’s sentence was not excessive. See Corley, 31 A.3d 

at 298.

Based on the foregoing, we agree with appellate counsel that the 

sentencing issue raised by Appellant lacks merit. In addition, we have 

reviewed the certified record consistent with Flowers, 113 A.3d at 1250, 

and have discovered no additional arguably meritorious issues. 

Accordingly, we grant appellate counsel’s petition to withdraw and affirm the 

trial court’s judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2016