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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES K. COLLINS, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3021 EDA 2017

Appeal from the Judgment of Sentence August 4, 2017

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

No(s): CP-23-CR-0006827-2016

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COMMONWEALTH OF PENNSYLVANIA

v.

JAMES K. COLLINS, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3022 EDA 2017

Appeal from the Judgment of Sentence August 4, 2017

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

No(s): CP-23-CR-0000997-2017

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 23, 2019
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James K. Collins appeals from a judgment of sentence, entered in the 

Court of Common Pleas, after pleading guilty in two separate cases. 1 In CP23-CR-6827-2016, Collins pled guilty to delivery of a controlled substance (2 

counts),2 criminal use of a communication facility (2 counts),3 and resisting 

arrest.4In CP-23-CR-887-2017, Collins pled guilty to drug delivery resulting 

in death,5 delivery of a controlled substance,

6 and involuntary manslaughter.7

 

Counsel has petitioned this Court to withdraw from his representation of 

Collins pursuant to Anders and Santiago.

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 Upon review, we find Collins’

appeals frivolous; we affirm Collins’ judgments of sentence and grant 

counsel’s petitions to withdraw.

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1 This Court has opted to consolidate both appeals. When the same question 

is involved in two or more appeals in different cases, the appellate court may, 

in its discretion, treat them as a single appeal. Pa.R.A.P. 513. Briefs for both 

appeals raise the same issue and have near identical paginations; they will be 

cited to collectively as “Appellant’s Briefs.”

2 35 P.S. § 780-113(a)(30).

3 18 Pa.C.S.A. § 7512.

4 18 Pa.C.S.A. § 5104.

5 18 Pa.C.S.A. § 2506(a).

6 35 P.S. § 780-113(a)(30).

7 18 Pa.C.S.A. § 2504(a).

8 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).
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On October 1, 2016, Collins sold 3-methylfentanyl9to Mathew Ettien. 

On October 2, 2016, Ettien was found dead in in his bathroom due to a drug 

overdose. On October 3, 2016, Collins sold 3-methylfentanyl to an undercover 

officer. Collins was arrested on October 4, 2016. He was charged with the 

above mentioned crimes. On June 2, 2017, Collins entered open guilty pleas 

in both cases to the above offenses. On August 4, 2017, the trial court entered 

its sentencing order, which it then amended on August 9, 2017. The 

aggregate sentence for both cases was 191⁄4 to 381⁄2 years’ incarceration. On 

August 14, 2017, Collins filed a motion for reconsideration of sentence in each 

case. The motions were denied and these appeals followed in which counsel 

has sought permission to withdraw from his representation of Collins.

In order to withdraw pursuant to Anders, counsel must: (1) petition the 

Court for leave to withdraw, certifying that after a thorough review of the 

record, counsel has concluded the issues to be raised are wholly frivolous; (2) 

file a brief referring to anything in the record that might arguable support an 

appeal; and (3) furnish a copy of the brief to the appellant and advise him of 

his right to obtain new counsel or file a pro se brief raising any additional 

points that the appellant deems worthy of review. Commonwealth v. 

Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001). In addition, counsel must 

also state his reasons for concluding his client’s appeal is frivolous. Santiago, 

978 A.2d at 361.

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9 3-methylfentanyl is an opioid between 300 to 6,000 times more powerful 

than morphine. N.T. Sentencing, 8/4/17, at 49.
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Here, counsel’s petitions state that he has made an examination of the 

record and concluded the appeals are wholly frivolous. For each case, counsel 

indicates that he supplied Collins with a copy of the brief and a letter 

explaining his rights to proceed pro se, or with privately retained counsel, and 

to raise any other issues he believes might have merit.10 Counsel has also 

submitted briefs, setting out the issues raised by Collins and, pursuant to the 

dictates of Santiago, and explained why he believes the appeals to be 

frivolous. Thus, counsel has substantially complied with the requirements for 

withdrawal.

Counsel having satisfied the above requirements, this Court must 

conduct its own review of the proceedings and render an independent 

judgment as to whether the appeal is, in fact, wholly frivolous. 

Commonwealth v. Wright, 846 A.2d 730, 737 (Pa. Super. 2004).

Collins claims that, “the judgment of sentence is harsh and excessive 

where the lower court sentenced entirely in consecutive fashion when all the 

mitigating evidence called for a concurrent scheme.” Appellant’s Briefs, at 3 

(unnecessary capitalization removed).

Collins’ claim represents a challenge to the discretionary aspects of his 

sentence. An appeal from a discretionary aspects of sentencing claim is not 

guaranteed of right; rather, a defendant’s appeal is considered a petition for 

permission to appeal. Commonwealth v. Williams, 562 A.2d 1385, 1386-

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10 Collins has not submitted any additional or supplemental filings to this 

Court.
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87 (Pa. Super. 1989) (en banc). An objection to a discretionary aspect of 

sentencing is waived if it is not raised at the sentencing hearing or in a motion 

to modify sentencing. Commonwealth v. Anderson, 830 A.2d 1013, 1013 

(Pa. Super. 2003). An appellant who challenges the discretionary aspects of 

his sentence must include in his brief a concise statement of the reasons relied 

upon for allowance of appeal. Pa.R.A.P. 2119(f). In addition, appellate review 

will only be granted if the appellant raises a substantial question. 42 Pa.C.S.A. 

§ 9781(b); Commonwealth v. Byrd, 657 A.2d 961, 963 (Pa. Super. 1995); 

Williams, 562 A.2d at 1387. The existence of a substantial question must be 

determined on a case-by-case basis. Commonwealth v. Cruz-Centeno, 

668 A.2d 536, 545 (Pa. Super. 1995).

Here, Collins filed post-sentence motions to reconsider his sentence, 

followed by timely notices of appeal. Additionally, he has included in each of 

his briefs a concise statement of reasons relied upon for appeal pursuant to 

Rule 2119(f). Accordingly, we must now determine whether Collins has raised 

a substantial question for our review.

In his Rule 2119(f) statement, Collins asserts that “the lower court 

manifestly abused [its] discretion when it ran all the sentences imposed 

consecutive to each other even though the myriad [] mitigating factors put 

forth by [Collins] suggested a concurrent scheme.” Appellant’s Briefs, at 7. 

Specifically, Collins argues the mitigating factors “include the fact that he 

expressly accepted his responsibility for committing the crimes for which he 
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was sentenced, his clearly stated motivation to be rehabilitated and his 

genuine remorse.” Appellant’s Briefs, at 8. 

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. See Commonwealth v. Raven, 97 A.3d 1244 (Pa. 

Super. 2013); see also Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. 

Super. 2012) (finding trial court’s failure to consider “acceptance of 

responsibility, expression of remorse, and amenability to rehabilitation” raises 

a substantial question). Accordingly, we will consider Collins’ claim.

Our standard of review of the discretionary aspects of a sentence 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). 

Additionally, our review of the discretionary aspects of a sentence is confined 

by the statutory mandates of 42 Pa.C.S.A. §§ 9871(c) and (d).

We must vacate a sentence if the trial court erroneously applied the 

guidelines, if the circumstances would cause the application of the guidelines 

to be clearly unreasonable, or if the court sentenced outside the guidelines in 
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an unreasonable manner. 42 Pa.C.S.A. § 9871(c). In reviewing the record 

we consider:

1) The nature and circumstances of the offense and the history and 

characteristics of the defendant.

2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

3) The findings upon which the sentence was based.

4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9871(d).

Collins concedes that the sentences are legal and within the standard 

range. Appellant’s Briefs, at 8. Therefore, he must demonstrate that the 

application of the guidelines was clearly unreasonable. 42 Pa.C.S.A. § 

9871(c)(2). He has failed to do so.

The Honorable John P. Capuzi sentenced Collins within the standard 

range. He also chose for those sentences to run consecutively instead of 

concurrently. At the sentencing hearing, Judge Capuzi had access to a presentence investigation report. When a sentencing court has the benefit of a 

pre-sentence, we “presume that the court was aware of relevant information 

regarding the defendant’s character and weighed those considerations along 

with any mitigating factors.” Commonwealth v. Seagraves, 103 A.3d 839, 

842 (Pa. Super. 2014). Furthermore, imposing a consecutive rather than a 

concurrent sentence is within the sound discretion of the sentencing court. 
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Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (citations 

omitted).

The court had informed Collins of the maximum sentence during the 

plea but noted that he did not know how severe the sentence would be. N.T. 

Sentencing, 8/4/17, at 48. The court also believed that Collins was expressing 

remorse. Id. at 49. However, the court found these factors outweighed by 

other circumstances. Id. at 48. Specifically, the court noted that: Collins 

had been selling drugs since he was a juvenile, id. at 49; Collins should have 

been aware of the risk in which he was placing others, id. at 48-49; Collins 

had been provided treatment for drug addiction but did not take advantage of 

it, id. at 49; and Collins had a high risk of reoffending. Id. at 51.

The decision to impose a consecutive sentences was well within the 

discretion of the sentencing court. See Zirkle, 107 A.3d at 133. In light of 

the foregoing, we cannot conclude that the sentence is clearly unreasonable 

or that the sentencing court failed to consider Collins’ mitigating 

circumstances. We find no abuse of discretion. See Shugars, 895 A.2d at 

1275.

Judgments of sentence affirmed; petitions to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/19