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

v.

CHRISTOPHER MYERS

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 846 EDA 2021
Appeal from the Judgment of Sentence Entered April 8, 2021 , i n the Court of Common Pleas of Philadelphia County , Criminal Division at No(s): CP

- 51

- CR

- 0009678

- 2016

.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J. MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 25, 2022 Christopher Myers appeals from the judgment of sentence imposed after a jury found him guilty of robbery and related offenses. Additionally, Myers ’ counsel filed a petition to withdraw representation and an accompanying brief pursuant to Anders v. California , 386 U

. S. 738, 744 (1967)

. Upon review,

we grant counsel’s petition, and affirm the judgment of sentence.
On September 25, 2016, Myers approached Melvin Williams on 15th Street and Belfield Avenue in Philadelphia

. Myers demanded money from Williams that he allegedly owed Myers

. Myers pushed Williams to the ground, kicked him several times, and took his iPhone (valued at $400) and $90 cash. Upon investigation, Myers admitted to police that he was in a fight with Williams over money and knocked him down. As a result of Myers’ actions, Williams s ustained a facial fracture, eye injury, and a concussion and neededJ

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sur gery for his facial injuries and front teeth. Myers was arrested and charged with multip le offenses. On September 21, 2017, a jury f ound Myers guilty of simple assault, robbery

-- threat of immediate serious injury, and theft by unlawful taking

— movable property. 1 Myers was acquitted of several other offenses

. On January 3, 2018, the trial court sentenced Myers to 5 to 10 years ’ incarceration for robbery, 2 years ’ probation for theft, and 2 years ’ probation for simple assault. Myers filed a post

- sentence motion, which t he court denied. Following an amended Post

- Conviction Relief Act 2 p etition , the court

r einstated Myers ’ direct appellate rights on September 18, 2019

. Myers appealed. Thereafter, t his Court affirmed his convictions , but fo u nd that the trial court should have merged the theft charge with the robbery charge , and remanded the case for resentencing. On April 8, 2021, the trial court resentenced Myers to 5 to 10 years’
incarceration followed by 2 years’ probation on the rob bery conviction. Myers filed this timely appeal. Counsel filed a petition to withdraw from representati on and an Anders brief with this Court. Myers did not retain independent counsel or file a pro se response to the Anders brief.

_________________ __________ ______ ____ _______ 1 18 Pa.C.S.A. §§ 2701( a ), 3701( a )(ii), and 3921 ( a )

.
2 42 Pa.C.S. A. § § 954 1

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Before we may consider the issues raised in the Anders brief, we must first consider counsel’s petition to withdraw from representation. See Commonwealth v. Garang , 9 A.3d 237, 240 (Pa. Super. 2010) (holding that, when presented with an Anders brief, this Court may not review the merits of the underlying iss ues without first passing on the request to withdraw). Pursuant to Anders , when counsel believes an appeal is frivolous and wishes to withdraw from representation, counsel must do the following: (1) petition the court for leave to withdraw stating that af ter making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no

- merit letter; and (3) furnish a co py of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se , or raise any additional points [counsel] deems worthy of this Court's attention.
Commonwealth v. Edwards , 906 A.2d 1225, 1227 (Pa. Super. 2006) (citation om itted). In Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the second requirement of Anders , i.e ., the contents of an Anders brief, and required that the brief: (1) provide a summary of the procedural history and facts, wit h 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.J

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Santiago , 978 A.2d at 361. Once counsel has satisfied the Anders requirements , it is then this Court’s responsibility “to conduct a simple review of the record to ascertain if there appear on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated.” Commonwealth v. Dempster , 187 A.3d 266, 272 (Pa. Super. 2018). Here, counsel has complied with each of the requirements of Anders

. Counsel indicated that he reviewed the record and concluded that Myers ’ appeal is frivolous. Further, the Anders brief substantially comports with the requirements set forth by our Supreme Court in Santiago . Finally, the record included a copy of the letter that counsel sent to Myers stating counsel’s intention to seek permission to withdraw and advising Myers of h is right to proceed pro se or retain new counsel and file additional claims. Accordingly, as counsel has complied with the procedural requirements for withdrawing from representation, we will conduct an independent review to determine
whether Myers ’ appea l is wholly frivolous.
In the Anders brief, counsel sets forth one issue that Myers wishes to
raise: Whether Myers’ sentence for his robbery conviction was unduly harsh?
Anders Brief at 8. This issue challenges the discretionary aspects of Myers’

sen tence

. “ Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right.” Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). This Court has explained that, to reach the meritsJ

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of a discretionary sentencing issue, we must conduct a four

- part analysis to
determine: (1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]pellant's brief includ es a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropria te under the sentencing code. . . . [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.
Commonwealth v. Colon , 102 A.3d 1033, 1042

– 43 (Pa. Super. 2014) (quoting Commonwealth v. Austi n , 66 A.3d 798, 808 (Pa. Super. 2013)). Here, Myers satisfied the first two requirements under Colon

. However , Myers did not “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionar y aspects of a sentence” as required. See Pa.R.A.P. 2119(f). W here counsel files an Anders brief, this Court has reviewed the matter even absent a separate Pa.R.A.P.
2119 ( f ) statement

. See Commonwealth v. Wilson , 578 A.2d 523 ( Pa. Super. 1990); see also Commonwealth v. Lilley , 978 A.2d 995 (Pa. Super. 2009). Therefore, counsel's failure to submit a Rule 2119(f) statement does not preclude our review of whether Myers ’ issue is frivolous. See Com mowealth v. Zeigler , 112 A.3d 656, 661 ( Pa. Super. 2015)

. Accordingly , we consider whether Myers raised a substantial question. In his Anders brief, counsel makes no argument as to why the sentence imposed by the lower court was excessive . However, in Myers’ post

- sentence motion, he claimed t h at various mitigating factors and his rehabilitative needsJ

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warranted a lesser sentence

. Specifically, Myers argue d that he had a troubled childhood involving domestic violence , and he himself was abused as a child. Additionally, he asserted that he suffer s from depression and anxiety, bi

- polar disorder , and post

- traumatic stress disorder. Myers further claimed that a 5 to 10 year sentence was not needed to rehabilitate him. He already started the rehabilitation process by completin g v iolen ce prevention program and attending various course s , including anger management , parenting , and arts and crafts. Myers also expressed remorse over how he dealt with Williams

. Consequently, according to Myers, the trial court abused its discretion when it sentenced him. Generally, a bald excessiveness claim does not raise a substantial question. See id. , at 662 (Pa. Super. 2015). Additionally,
t his Court has held on numerous occasions that a claim of inadequate consideration of mitigating facto rs does not raise a substantial question for our review. However, prior decisions from this Court involving whether a substantial question has been raised by claims that the sentencing court “failed to consider” or “failed to adequately consider” sentencin g factors has been less than a model of clarity and consistency. ... This Court has ... held that an excessive sentence claim

— in conjunction with an assertion that the court failed to consider mitigating factors

— raises a substantial question.
Commonwealth v. Caldwell , 17 A.3d 763, 769

– 70 (Pa. Super. 2015) (internal quotation marks and citations omitted). Here, M yers essentially claim s that the trial court did not adequately consider certain mitigating factors , including his rehabilitative needs

. As such,J

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we conclude that this argument does not raise a substantial question, and do not consider the merits of his sentencing claim. But, e ven if we were to consider the merits, we wou l d agree with counsel that Myers’ sentencing claim
i s frivolous

. 3 In sentencing Myers, we first note that the trial court had the pre sentence investigation report from the previous sentencing and re - reviewed
it

. N.T., 4/8/21, at 7. “[W]here the trial court is informed by a pre

- sentence report, it is presumed that th e court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed.” Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted). Furthe rmore, t he trial court observed that, based upon a prior record score of 5 and an offense gravity score of 12, the sentencing guidelines recommended a minimum sentence of 7 to 8 1⁄2 years’ incarceration, plus or

_________________ __________ ______ ____ _______

3 Our standard of review of a sentencing claim 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. Shugars , 895 A.2d 1270, 1275 (Pa. Super. 2006).J

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minus 1 year. N.T., 4/8/21, at 9. Notwithsta nding this, the court deviated from the guidelines ’ mitigated sentence and gave Myers 5 to 10 years ’
incarceration . The trial court specifically acknowledged the hardships Myers endured as a child and the mental health challenges he faced. Because of tho se factors , the court previously sentenced him in the mitigated range and recognized that a mitigated sentence was still appropriate

. Id. at 16. The trial court also acknowledged Myers’ accomplishments since he was in custody and his adherence to the court’s recommendation s that he complete his education and par t ic i pate in program ming

. Id. 15. T he court further observed that this was a second strike case, but because the Commonwealth failed to give Myers notice , it did not seek a more severe sentence. Thus, despite Myers’ progress, the court was unwilling to reduce his sentence anymore, given the severity of the incident with Williams

. Id. at 16

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B ased upon our review of the sentencing transcript, it is evident that the tr ial court thoughtfully weighed all of the relevant factors in this case. On appeal, “[w]e cannot re

- weigh the sentencing factors and impose our judgment in place of the sentencing court.” Commonwealth v. Macias , 968 A.2d 773, 778 (Pa. Super. 2009). Ther efore, we would conclude that the trial court did not abuse its discretion in sentencing Myers. For the foregoing reasons, we conclude that Myers’ issue is wholly frivolous. Furthermore, as required by Anders , we have independently reviewed the record to determine whether there are any non

- frivolous issuesJ

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present in this case. Our review of the record discloses no other non

- frivolous issues that Myers could raise that counsel overlooked. See Dempster , supra . Having concluded that there are no non - frivolous issues, we grant counsel’s petition to withdraw, and affirm the judgment of sentence. Petition to withdraw as counsel granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/25/2022