J. S31044/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JAMES LEE TRUITT, : No. 1773 MDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered March 28, 2018,

in the Court of Common Pleas of Lancaster County

Criminal Division at No. CP-36-CR-0002601-2016

BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 08, 2020

James Lee Truitt appeals1from the March 28, 2018 judgment of 

sentence imposed after he pled guilty to one count of aggravated assault.2 

Contemporaneously with this appeal, counsel has requested leave to withdraw 

in accordance with Anders v. California, 386 U.S. 738 (1967), 

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and their 

progeny. After careful review, we grant counsel’s petition to withdraw and 

affirm the judgment of sentence.

The relevant facts and procedural history of this case, as gleaned from 

the certified record, are as follows: On May 18, 2016, appellant struck the 

 

1 The Commonwealth has indicated that it will not being filing a brief in this 

matter.

2 18 Pa.C.S.A. § 2702(a)(1).
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female victim, shoved her on a bed, and choked her until she began to lose 

consciousness. (Notes of testimony, 6/14/17 at 9.) Appellant suffers from 

post-traumatic stress disorder (“PTSD”). (Id.) On June 14, 2017, appellant 

entered an open guilty plea to one count of aggravated assault in connection 

with this incident and was admitted into the Mental Health Treatment Court 

that same day. (Id. at 2, 4-8, 20.) Appellant was ultimately discharged from 

the treatment court for violating the terms of the program. (Notes of 

testimony, 1/3/18 at 3.) On March 28, 2018, the trial court sentenced 

appellant to a term of three to six years’ imprisonment, with credit for time 

served.

On April 5, 2018, appellant filed a timely post-sentence motion to modify 

his sentence, which the trial court denied on July 24, 2018. Appellant did not 

seek direct appellate review of his judgment of sentence. On March 21, 2019, 

appellant filed a timely pro se petition pursuant to the Post Conviction Relief 

Act (“PCRA”).3 The PCRA court appointed counsel, and counsel filed an 

amended PCRA petition on June 24, 2019. On September 24, 2019, the PCRA 

court granted appellant’s PCRA petition and reinstated his rights to file a direct 

appeal nunc pro tunc.

Appellant filed a timely notice of appeal on October 24, 2019. On 

November 19, 2019, the trial court subsequently ordered appellant to file a 

concise statement of errors complained of on appeal, in accordance with 

 

3 42 Pa.C.S.A. §§ 9541-9546.
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Pa.R.A.P. 1925(b). On December 9, 2019, appellant’s then-counsel, 

Randall L. Miller, Esq., filed a statement pursuant to Rule 1925(c)(4), wherein 

he indicated that he intended to request permission to withdraw, as he 

determined that there were no non-frivolous issues to raise on appellant’s 

behalf.

Thereafter, appellant’s present counsel, Daniel C. Bardo, Esq. 

(hereinafter, “Attorney Bardo”), was appointed to represent appellant. On 

March 19, 2020, Attorney Bardo appeared to file an Anders brief. (See 

appellant’s brief, 3/19/20 at 13 (concluding that “any appellate issues are 

frivolous”).) However, Attorney Bardo failed to file a contemporaneous 

petition to withdraw as counsel and failed to file the required notice letter 

addressed to appellant explaining appellant’s rights under Anders. See 

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) 

(en banc); Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.Super. 

2007), citing Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.Super. 

2005).

On August 25, 2020, we remanded this case for Attorney Bardo to either 

comply with the dictates of Anders and its progeny, or to file an advocate’s 

brief on the merits. As noted above, Attorney Bardo filed an application to 

withdraw his appearance, accompanied by an Anders brief on September 24, 

2020. Our subsequent review of Attorney Bardo’s application for leave to 

withdraw his appearance, supporting documentation, and Anders brief 
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reveals that the letter sent to appellant failed to advise him that he could raise 

any additional points worthy of this court’s attention. See Woods, 939 A.2d 

at 898. Accordingly, on October 19, 2020, we denied Attorney Bardo’s 

application to withdraw, remanded this matter, and directed Attorney Bardo 

to send appellant a letter, accompanied by the Anders brief and his 

application for leave to withdraw, that complies with the directives of Woods

and Millisock.

On October 23, 2020, Attorney Bardo complied with this court’s directive 

and filed a “Renewed Application for Leave to Withdraw,” accompanied by new 

correspondence that he sent to appellant, properly advising him, inter alia, 

that he may raise any additional points worthy of this court’s attention. 

Appellant did not respond to Attorney Bardo’s renewed application to

withdraw.

“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) (citation omitted). In order to withdraw pursuant to Anders, “counsel 

must file a brief that meets the requirements established by our Supreme 

Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).” 

Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014) (parallel 

citation omitted). Specifically, counsel’s Anders brief must comply with the 

following requisites:
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(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. (citation omitted).

Pursuant to Millisock and its progeny, “[c]ounsel also must provide a 

copy of the Anders brief to his client.” Commonwealth v. Orellana, 86 

A.3d 877, 880 (Pa.Super. 2014) (internal quotation marks and citation 

omitted). The brief must be accompanied by a letter that advises the client 

of the option 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.” Id. “Once counsel has satisfied the above requirements, it is then this 

[c]ourt’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.” Goodwin, 928 A.2d at 291 (citation and internal quotation marks 

omitted).

Instantly, we conclude that Attorney Bardo has satisfied the technical 

requirements of Anders and Santiago. Attorney Bardo has identified the 
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pertinent factual and procedural history and made citation to the record. 

Attorney Bardo has also raised discretionary sentencing claims that could 

arguably support an appeal, but ultimately concludes that these claims are

wholly frivolous. Attorney Bardo has also sent a letter to appellant, which now 

fully satisfies the notice requirements of Millisock. Accordingly, we proceed 

to conduct an independent review of the record to determine whether this 

appeal is wholly frivolous.

The crux of appellant’s argument on appeal is that his standard range 

sentence was manifestly excessive and the sentencing court failed to properly 

consider his diagnosis for PTSD in fashioning this sentence. (Anders brief at 

8-13.) 

This court has explained the following in considering an appeal 

challenging the discretionary aspects of a sentence where the appellant has 

entered an open guilty plea:

Generally, upon the entry of a guilty plea, a defendant 

waives all claims and defenses other than those 

sounding in the jurisdiction of the court, the validity 

of the plea, and what has been termed the “legality” 

of the sentence imposed. However, where a 

defendant pleads guilty without any agreement as to 

sentence, (i.e. an open plea), the defendant retains 

the right to petition this Court for allowance of appeal 

with respect to the discretionary aspects of 

sentencing.

Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa.Super. 2017) (internal 

citations omitted), appeal denied, 181 A.3d 1078 (Pa. 2018).
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Here, appellant entered an open guilty plea to one count of aggravated 

assault on June 14, 2017. (Notes of testimony, 6/14/17 at 5.) Accordingly, 

we find that appellant has not waived his claim challenging the discretionary 

aspects of sentencing.

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).

Where an appellant challenges the discretionary aspects of his sentence, 

as is the case here, the right to appellate review is not absolute. See 

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Rather, an 

appellant challenging the discretionary aspects of his sentence must invoke 

this court’s jurisdiction by satisfying the following four-part test:

(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 appeal with respect to the 

discretionary aspects of sentence; and (4) whether 

the concise statement raises a substantial question 

that the sentence is appropriate under the sentencing 

code.
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Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

Instantly, the record reveals that appellant filed a timely notice of appeal 

and preserved his claim in his post-sentence motion to modify his sentence. 

Appellant has failed to include a statement in his brief that comports with the 

requirements of Pa.R.A.P. 2119(f), but the Commonwealth has not objected 

to this omission. “[W]hen the appellant has not included a Rule 2119(f) 

statement and the [Commonwealth] has not objected, this [c]ourt may ignore 

the omission and determine if there is a substantial question that the sentence 

imposed was not appropriate.” Commonwealth v. Kiesel, 854 A.2d 530, 

533 (Pa.Super. 2004) (citation omitted). Accordingly, we must determine 

whether appellant has raised a substantial question.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d 

932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538 

(Pa. 2013). “A substantial question exists only when appellant advances a 

colorable argument that the sentencing judge’s actions were either: 

(1) inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)

(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).
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This court has recognized that a “claim that the sentence is manifestly 

excessive, inflicting too severe a punishment, . . . present[s] a substantial 

question.” Commonwealth v. Hicks, 151 A.3d 216, 227 (Pa.Super. 2016) 

(citations omitted), appeal denied, 168 A.3d 1287 (Pa. 2017). This court 

has also 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. Raven, 97 A.3d 1244, 1253 

(Pa.Super. 2014 (citation omitted), appeal denied, 105 A.3d 736 (Pa. 2014). 

Accordingly, we may review the merits of appellant’s claim.

Contrary to appellant’s contention, our review of the record in this 

matter reveals that the sentencing court considered and weighed numerous 

factors in fashioning appellant’s standard range sentence, including the fact 

that he suffered from PTSD. At the March 28, 2018 sentencing hearing, the 

sentencing court stated as follows:

I am not saying that [appellant] doesn’t have issues

he’s struggling with; however, [appellant] has been, 

despite attempts at counseling and treatment, unable 

to separate his own personal victimization from the 

accountability for his actions and, therefore, fails to 

take any accountability for those actions, excuses 

them by the fact that he has issues that have caused 

him trauma in the past. . . .

. . . .

. . . . But the bottom line is, [appellant], while you 

need help, you are an extremely violent, dangerous 

individual, and it is up to you to choose whether you 

will comply with help, regardless of the setting. You 

chose not to comply with it within the setting of Mental 
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Health Court. Your violations are such that they were 

willful, they were knowing, they were childish, and 

they continued to show disregard, disrespect, and 

resentment of authority and structure. . . . Having 

the benefit of observing your demeanor in the 

program, the lack of accountability you’ve taken for 

any of the violations that have occurred or, I should 

say in fairness, in some case, limited accountability 

for the violations that have occurred, I believe that 

the state programs available to you will be able to 

provide you with any level of psychiatric treatment 

that you require, whether it be for post-traumatic

stress or anything else.

You say you need help, you need therapy, you need

treatment, you need PTSD classes. You didn’t seem 

to run up at the VA and get into a PTSD class while 

you were here.

Notes of testimony, 3/28/18 at 14-15.

Additionally, we note that the sentencing court was in possession of a 

presentence investigation (“PSI”) report in this matter and indicated that it

reviewed it. (See id. at 3.) Where the trial court has the benefit of a PSI 

report, “we shall . . . presume that the sentencing judge was aware of relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.” Commonwealth v. 

Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citation omitted), appeal 

denied, 95 A.3d 275 (Pa. 2014). Accordingly, we find that appellant’s 

challenge to the discretionary aspects of his sentence must fail.

Based on the forgoing, we agree with Attorney Bardo that this appeal is 

wholly frivolous. After our own independent review of the record, we further 

discern no additional issues of arguable merit. Accordingly, we grant 
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Attorney Bardo’s petition to withdraw and affirm the March 28, 2018 judgment 

of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/8/2020