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

v. ANDRE MICHAEL JONES, Appellant No. 2959 EDA 2014 Appeal from the Judgment of Sentence August 15, 2014 in the Court of Common Pleas of Montgomery County Criminal Division at No.: CP

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- 0006645

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BEFORE: MUNDY, J., OLSON, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED JUNE 23, 2015 Appellant, Andre Michael Jones, appeals from the judgment of sentence imposed on August 15, 2014, following his open guilty plea to rape of a child and involuntary deviant sexual intercourse (IDSI) with a child. 1 Appellant’s coun sel 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 r equest to withdraw. On January 8, 2013, the Commonwealth filed a criminal information charging Appellant with ten counts of rape of a child, ten counts of statutory

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3121(c) and 3123(b), respectively.J

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sexual assault, thirty counts of IDSI, thirty counts of aggravated indecent assault, and on e count each of endangering the welfare of a child and corruption of minors. ( See Information, 1/08/13, at unnumbered pages 1

- 11). The charges arose from Appellant’s over five

- year sexual abuse, beginning when she was nine years old, of his stepdaughter. ( See id. ; see also Trial Court Opinion, 12/08/14, at 1

- 2). On March 12, 2014, the date scheduled for trial, after discussion with counsel, Appellant entered an open guilty plea to one count of rape of a child and one count of IDSI. ( See N.T. Guilty Plea , 3/12/14, at 3

- 6). In return for Appellant’s guilty plea, the Commonwealth agreed not to seek any mandatory minimum sentences and to nol pros the remaining counts at the time of sentencing. ( See id. at 6

- 7, 20). Appellant signed both a written guilty p lea colloquy and a special addendum to the guilty plea for sex offenders. ( See Written Guilty Plea, 3/12/14, at 9; Addendum to Guilty Plea Colloquy, 3/12/14, at unnumbered page 7). At the plea hearing, Appellant expressed his satisfaction with counsel’s stewardship and stated that he was pleading guilty of his own free will. ( See N.T. Guilty Plea, 3/12/14, at 9, 14, 19). He acknowledged that he had signed the written plea colloquy and addendum, and agreed that the plea was an open guilty plea. ( See id . at 8

- 10, 19). Appellant further agreed that he was guilty of the charges, and that he understood the possible maximum sentencing exposure. ( See id. at 13, 16).J

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At the sentencing hearing, on August 15, 2014, following a review of the Pre

- Sentence Inves tigation Report (PSI), the victim read a letter to the court and the Commonwealth presented a victim impact statement from the victim’s mother. ( See N.T. Sentencing, 8/15/14, at 3, 6

- 12). Appellant presented the testimony of a friend, one of his sisters, his brother, and submitted a letter from a second sister. ( See id. at 12

- 23). Appellant also testified on his own behalf. ( See id. at 24). The trial court imposed a sentence in the standard range of not less than twenty nor more than forty years of in carceration on the charge of rape of a child. ( See id. at 41). On the charge of IDSI, the trial court sentenced Appellant to ten years of probation; Appellant was to serve it consecutively to the sentence for rape of a child. ( See id. ). On August 22, 2014, Appellant filed a motion for reconsideration of sentence claiming that, during its argument at sentencing, the Commonwealth “made references to numerous allegations regarding the underlying crimes that were [not] specifically admitted to by [Appellan t] at his guilty plea. . . .” (Motion for Reconsideration of Sentence, 8/22/14, at unnumbered pages 1

- 2). The trial court denied the motion forJ

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reconsideration on September 15, 2014. ( See Order, 9/15/14, at 1). The instant, timely appeal followed. 2
On a ppeal, the Anders brief raises the following questions for our
review: Was Appellant’s guilty plea to rape of a child and IDSI with a child not knowingly, intelligently, and voluntarily made as a result of the ineffective representation of his trial counse l? Did the trial court abuse its discretion when it sentenced Appellant to a term of twenty (20) to forty (40) years in prison for the offence of rape of a child? ( Anders Brief, at 5). Appellant’s 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 at 744. 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.

____________________________________________ 2 Appellant has complied with all the requirements of Pa.R.A.P. 1925(b). ( See Concise Statement of Errors Complained of on Appeal, 10/28/14, at unnumbered pages 1

- 5). The trial court filed an opinion on December 8, 2014. See Pa.R.A.P. 1925(a).J

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Santiago , supra at 361. When we rec eive 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 “[t]here [are] no non

- frivolous issues to be addressed[.]” (Petition for Leave of Court to Withdraw as Appellate Counsel, 3/15/15, at unnumbered page 3). 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 friv olous. ( See Anders Brief, at 6

- 32). 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 Petition for Leav e of Court to Withdraw as Appellate Counsel, 3/15/15, at unnumbered pages 5

- 6); see also Commonwealth v. Millisock , 873 A.2d 748, 749 (Pa. Super. 2005). Appellant has not filed a response. Because counsel has substantially complied with the dictates of A nders , Santiago , and Millisock , we willJ

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examine the issues set forth in the Anders brief that counsel believes have arguable merit. See Garang , supra at 240

- 41. The Anders brief first alleges that Appellant’s guilty plea was not knowing, intelligent, and voluntary. Specifically, the Anders brief claims that Appellant received ineffective assistance of plea counsel who assured him that he would receive a lesser sentence. ( See Anders Brief, at 21). However, this claim is premature. As counsel acknowle dges in the Anders brief, ( see Anders Brief, at 22), Appellant must raise claims of ineffective assistance of counsel on collateral review. See Commonwealth v. Holmes , 79 A.3d 562, 576 (Pa. 2013). Accordingly, we dismiss this claim without prejudice for Appellant to seek collateral review under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541

- 9546, in accordance with the Pennsylvania Supreme Court’s opinion in Commonwealth v. Grant , 813 A.2d 726, 737 (Pa. 2002). See Holmes , supra at 576.
T he Anders brief next challenges the discretionary aspects of Appellant’s sentence. 3 ( See Anders Brief, at 25

- 32). The right to appeal the discretionary aspects of a sentence is not absolute. See

____________________________________________ 3 We note that Appellant preserved his discretionary aspects of sentence claim by filing timely post

- sentence motions for reconsideration of sentence. ( See Motion for Reconsideration of Sentence, 8/22/14, at unnumbered pages 1

- 2); see also McAfee , infra at 275

.J

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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[.]” Commonwealth v. And erson , 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 meet s these prerequisites, we have found that 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 c ontrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.” Id. (emphases in original). Here, counsel has included a Rule 2119(f) statement in the Anders brief. ( See Anders Brief, at 19

- 20). It states that t he trial court failed to consider mitigating circumstances such as Appellant pleading guilty to spare the victim from having to testify and the strong family support displayed at the sentencing hearing. ( See id. ). It also claims that, at sentencing, theJ

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Commonwealth improperly argued “facts relating to cases for which he was not convicted in arguing for a sentence at the top of the standard range . . . .” ( Id. at 20). However, in his Rule 2119(f) statement, the Anders brief concedes that Appellant’s sen tence was in the standard range of the Sentencing Guidelines. ( See id. at 19). It also acknowledges that the trial court had the benefit of a PSI, and that such sentences “are presumed to be reasonable.” ( Id. at 31); see also Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010). Initially, we hold that Appellant waived his claim that the sentencing court did not properly consider mitigating circumstances. Appellant did not raise this claim in his post

- sentence motion, in which he only raised the issue that the Commonwealth “made references to numerous allegations regarding the underlying crimes that were [not] specifically admitted to by [Appellant] at his guilty plea. . . .” (Motion for Reconsideration of Sentence, 8/22/14, at unnumbered pages 1

- 2). An appellant waives any discretionary aspects of sentence issue not raised in a post

- sentence motion; further, an appellant cannot raise an issue for the first time on appeal. 4 See

____________________________________________ 4 We note that Appellant did raise the issue regarding the failure to consider mitigating circumstances in his Rule 1925(b) statement. ( See Concise Statement of Errors Complained of on Appeal, 10/28/14, at unnumbered pages 1

- 5). However, an appellant cann ot raise issues for the first time in a Rule 1925(b) statement. See Commonwealth v. Coleman , 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time in Rule 1925(b) statement are waived). (Footnote Continued Next Page)J

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Commonwealth v. Mann , 820 A.2d 788, 793

- 94 (Pa. Super. 2003), appe al denied , 831 A.2d 599 (Pa. 2003) (finding claim sentencing court did not put sufficient reasons to justify sentence on record waived where issue was not raised in post

- sentence motion); see also Pa.R.A.P. 302(a); Commonwealth v. Hanford , 937 A.2d 1094, 1 098 n.3 (Pa. Super. 2007), appeal denied , 956 A.2d 432 (Pa. 2008) (new legal theories cannot be raised for first time on appeal). Thus, Appellant did not preserve this claim for our review and we deem it waived. 5
The Anders brief also alleges that the tri al court improperly allowed the Commonwealth to present evidence of uncharged crimes. ( See Anders Brief, at 28). However, as it acknowledges, ( see id. ), this Court has long held that such a claim does not raise a substantial question. See Commonwealth v

. Frank , 577 A.2d 609, 622 (Pa. Super. 1990), appeal (Footnote Continue d)

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5 Even if Appellant had preserved the claim, it is we ll settled that a claim “that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate.” Commonwealth v. Johnson , 961 A.2d 877, 880 (Pa. Super. 2008), ap peal denied , 968 A.2d 1280 (Pa. 2009) (citation omitted). Further, “[w]here 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.” Commonwealth v. Griffin , 65 A.3d 932, 937 (Pa. Super. 2013), appeal denied , 76 A.3d 538 (Pa. 2013) (quotation marks and citations omitted). Thus, Appellant’s claim that the sentencing court abused its discretion by failing to consider mitigating factors does not present a substantial question. Had Appellant preserved the claim, we would have declined to review the issue.J

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denied , 584 A.2d 312 (Pa. 1990) (reaffirming judge may consider uncharged criminal activity in determining appropriate sentence; claim did not raise substantial question). Moreover, even if we were to find that the claim raised a substantial question, we would find the claim waived. The Anders brief fails to specify which arguments made by the Commonwealth were allegedly improper, does not to cite to the record, and neglects to point to any evidence th at the trial court relied upon any uncharged crimes in imposing sentence. ( See Anders Brief, at 28

- 29). We note that it is Appellant’s responsibility to develop arguments in his brief; where he has not done so we will find the claim waived. See In re R. D. , 44 A.3d 657, 674 (Pa. Super. 2012), appeal denied , 56 A.3d 398 (Pa. 2012). Appellant’s issues do 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

- frivolou s issues exist. Judgment of sentence affirmed. Petition to withdraw as counsel granted

. Judges Mundy and Olson concur in the result.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/23/2015