J-A15022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY CHARLES GUTIERREZ 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1711 MDA 2017

Appeal from the Judgment of Sentence October 6, 2017

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0001007-2017

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED JULY 12, 2018

Anthony Charles Gutierrez (Appellant) appeals from the judgment of 

sentence imposed following the entry of his negotiated guilty plea to 

possession with intent to manufacture or deliver a controlled substance.1 

Appellant’s appellate counsel (“Counsel”) seeks to withdraw from 

representation pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 

1396 (1967) and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 

2009). Upon review, we grant Counsel’s petition to withdraw and affirm 

Appellant’s judgment of sentence.

The pertinent facts and procedural history of this case are as follows. 

On August 22, 2017, Appellant pled guilty to one count of possession with 

intent to manufacture or deliver a controlled substance pursuant to a 

____________________________________________

1 35 P.S. 780-113(a)(30).
J-A15022-18

- 2 -

negotiated plea agreement. The plea agreement, however, was open with 

respect to Appellant’s sentence. On October 6, 2017, the trial court sentenced 

Appellant to 24 to 48 months of incarceration. The court ordered this sentence 

to run consecutively to a sentence Appellant was already serving in an 

unrelated matter.

Appellant did not file any post-sentence motions. Rather, on October 

31, 2017, Appellant timely appealed to this Court. On November 2, 2017, the 

trial court ordered Appellant to file a concise statement of errors complained 

of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate 

Procedure. On November 21, 2017, Counsel filed a statement of intent to file 

an Anders brief. See Pa.R.A.P. 1925(c)(4). On April 6, 2018, Counsel 

petitioned for leave to withdraw with this Court.

There are particular mandates that counsel seeking to withdraw 

pursuant to Anders must follow. These mandates and the significant 

protection they provide to an Anders appellant arise because a criminal 

defendant has a constitutional right to a direct appeal and to counsel on that 

appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). 

We have summarized these requirements as follows: 

Direct appeal counsel seeking to withdraw under Anders must file 

a petition averring that, after a conscientious examination of the 

record, counsel finds the appeal to be wholly frivolous. Counsel 

must also file an Anders brief setting forth issues that might 

arguably support the appeal along with any other issues necessary 

for the effective appellate presentation thereof.
J-A15022-18

- 3 -

Anders counsel must also provide a copy of the Anders petition 

and brief to the appellant, advising the appellant of the right to 

retain new counsel, proceed pro se or raise any additional points 

worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of 

Anders, this Court will deny the petition to withdraw and remand 

the case with appropriate instructions (e.g., directing counsel 

either to comply with Anders or file an advocate’s brief on 

Appellant’s behalf).

Id. (citations omitted).

Additionally, there are requirements as to precisely what an Anders 

brief must contain:

[T]he Anders brief that accompanies court-appointed counsel’s 

petition to withdraw ... 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. When faced with a purported Anders brief, we 

may not review the merits of the underlying issues without first deciding 

whether counsel has properly requested permission to withdraw. 

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation 

omitted). If counsel has met these 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 appeal 

is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.
J-A15022-18

- 4 -

Instantly, we conclude that Counsel has complied with the requirements 

outlined above. Counsel has filed a petition with this Court stating that after 

reviewing the record, he finds this appeal to be wholly frivolous. Petition for 

Leave to Withdraw as Counsel, 4/6/18, at ¶ 2. In conformance with Santiago, 

Counsel’s brief includes summaries of the facts and procedural history of the 

case and discusses the only issue he believes might arguably support 

Appellant’s appeal. See Anders Brief at 2-8. Counsel’s brief sets forth his 

conclusion that the appeal is frivolous and includes citation to relevant 

authority. See id. at 5-8. Finally, Counsel has attached to his petition to 

withdraw the letter that he sent to Appellant, which enclosed Counsel’s 

petition and Anders brief and advised Appellant of his right to proceed pro se 

or with private counsel and to raise any additional issues that he deems worthy 

of this Court’s consideration.

The lone issue presented by Counsel in the Anders brief is “whether the 

imposition of a 24 month to 48 month sentence in a state correctional 

institution is harsh and excessive when [Appellant] took responsibility by 

pleading guilty.” Anders Brief at 2. This issue challenges the discretionary 

aspects of Appellant’s sentence. Our standard of review when considering 

discretionary aspects of sentencing claims is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge. The standard employed when reviewing the 

discretionary aspects of sentencing is very narrow. We may 

reverse only if the sentencing court abused its discretion or 

committed an error of law. A sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this context, an 
J-A15022-18

- 5 -

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. We must accord 

the sentencing court’s decision great weight because it was in the 

best position to review the defendant’s character, defiance or 

indifference, and the overall effect and nature of the crime. 

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal 

quotations and citations omitted).

“The right to appellate review of the discretionary aspects of a sentence 

is not absolute, and must be considered a petition for permission to appeal.” 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014), 

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a fourpart test to invoke this Court’s jurisdiction when challenging the discretionary 

aspects of a sentence.” Id. We conduct this four-part test to determine 

whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant 

raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a 

substantial question when he sets forth a plausible argument that the 

sentence violates a provision of the sentencing code or is contrary to the 

fundamental norms of the sentencing process.” Commonwealth v. Dodge, 
J-A15022-18

- 6 -

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted), 

appeal denied, 91 A.3d 161 (Pa. 2014).

Importantly, “[i]ssues challenging the discretionary aspects of a 

sentence must be raised in a post-sentence motion or by presenting the claim 

to the trial court during the sentencing proceedings. Absent such efforts, an 

objection to a discretionary aspect of a sentence is waived.” Commonwealth 

v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006) (citation and 

quotations omitted).

Appellant has waived his discretionary aspects of sentencing claim. Our 

review of the certified record reveals that Appellant never filed a postsentence motion challenging the discretionary aspects of his sentence. 

Additionally, the transcript of the sentencing proceedings reveals that 

Appellant did not challenge the discretionary aspects of his sentence during 

sentencing. See N.T., 10/6/17, at 1-5. Thus, Appellant has waived his

discretionary aspects of sentencing claim. See Shugars, 895 A.2d at 1273-

1274. Counsel is correct that raising this issue on appeal would be frivolous.

Moreover, even if Appellant had properly preserved his discretionary 

aspects of sentencing claim for appellate review, we would conclude that the 

claim is frivolous. Section 9721(b) of the Sentencing Code sets forth general 

sentencing standards for trial courts and provides, in pertinent part:

(b) General standards.—. . . the court shall follow the 

general principle that the sentence imposed should call for 

confinement that is consistent with the protection of the public, 

the gravity of the offense as it relates to the impact on the life of 
J-A15022-18

- 7 -

the victim and on the community, and the rehabilitative needs of 

the defendant. . . . In every case in which the court imposes a 

sentence for a felony or misdemeanor, modifies a sentence, 

resentences an offender following revocation of probation, county 

intermediate punishment or State intermediate punishment or 

resentences following remand, the court shall make as a part of 

the record, and disclose in open court at the time of sentencing, 

a statement of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b).

The trial court did not abuse its discretion in sentencing Appellant. The 

record reflects that Appellant received a sentence in the standard guideline 

range. N.T., 10/6/17, at 1-5. Additionally, the trial court had a presentence 

investigation report and acknowledged reviewing it. Id. “[W]here the 

sentencing court imposed a standard-range sentence with the benefit of a presentence report, we will not consider the sentence excessive.” 

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). “In those 

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.” Id. (quotations and 

citations omitted). Therefore, there is no support for Appellant’s claim that 

his sentence was excessive. Accordingly, we agree with Counsel that 

Appellant’s discretionary aspects of sentencing claim is frivolous.

Finally, after conducting our own independent review of the record, we 

have determined that there are no issues of merit and agree with Counsel’s 

assessment that Appellant’s direct appeal is frivolous. We thus find this appeal 

wholly frivolous and permit Counsel to withdraw.
J-A15022-18

- 8 -

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/12/18