J-S16015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AMON EVANS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1341 MDA 2021

Appeal from the Judgment of Sentence Entered May 26, 2021

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

No(s): CP-06-CR-0004670-2019

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED JULY 06, 2022

Amon Evans pleaded guilty to robbery and conspiracy, and filed a notice 

of appeal from the judgment of sentence the trial court imposed following that 

plea. Appointed counsel ultimately filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), and an application to withdraw from 

representation. We agree with counsel and the trial court that Evans’s 

challenge to the discretionary aspects of his sentence is without merit, and we 

therefore affirm his judgment of sentence and grant counsel’s application to 

withdraw.

Evans and three others robbed an employee of Cupid’s Treasure Store 

in Berks County. During the robbery, Evans was armed with a BB gun that 

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* Retired Senior Judge assigned to the Superior Court.
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looked like an actual firearm. Evans was arrested and charged in connection 

with the robbery, and he ultimately entered into an open guilty plea to robbery 

and conspiracy on May 26, 2021. That same day, the trial court held a 

sentencing hearing and sentenced Evans to a concurrent term of 40 months 

to eight years’ imprisonment for each count. Counsel for Evans filed a postsentence motion, which the trial court denied. Evans then filed a pro se notice 

of appeal on October 21, 2021, and counsel who had thus far represented 

Evans withdrew from representation. The trial court appointed appellate 

counsel. Both Evans and the trial court complied with Pa.R.A.P. 1925. 

Appointed appellate counsel then filed an application to withdraw 

Evans’s appeal with this Court on the basis that the appeal was untimely and 

without merit. This Court denied the application to withdraw the appeal. 

Instead, we issued an order directing counsel to file an Anders brief and an 

application to withdraw from representation, and to provide Evans with a letter 

notifying him of his rights pursuant to Commonwealth v. Millisock, 873 

A.2d 748 (Pa. Super. 2005). 

Counsel partially complied with our order and filed an Anders brief 

which substantially complied with the requirements for the content of that 

brief. See Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 

2014) (stating that an Anders brief must: 1) provide a summary of the 

procedural history and facts; 2) refer to anything in the record that counsel 

believes arguably supports the appeal; and 3) set forth counsel’s conclusion 
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that the appeal is frivolous, and the reasons for the conclusion). Counsel also 

filed an application to withdraw. However, he did not attach a copy of a 

Millisock letter notifying Evans of his rights. See Millisock, 873 A.3d at 751-

752 (stating that counsel seeking to withdraw under Anders must attach to 

his application to withdraw a letter advising the client of his right to: 1) retain 

new counsel to pursue the appeal; 2) proceed pro se; or 3) raise additional 

points deemed worthy of the Court’s attention.)

Accordingly, this Court again issued an order to counsel, this time 

instructing counsel to provide Evans with a letter pursuant to Millisock and 

to file a copy of that letter with this Court. Although counsel responded by 

filing a notification letter he had provided to Evans, the letter offered incorrect 

advice. This Court issued yet another order, instructing counsel to file a proper 

notification letter. 

Counsel has now sent a letter properly notifying Evans of his rights and 

filed a copy of that letter with this Court. Therefore, counsel’s application and 

brief finally satisfy Anders and Millisock, and we turn to our own review of 

the appeal to determine if it is wholly frivolous. See Commonwealth v. 

Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (stating that once an appellate 

court determines that counsel’s application and brief satisfy Anders, the court 

must then conduct its own review of the appeal to determine if it is wholly 

frivolous).
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In his Anders brief, counsel maintains Evans’s claim that the trial court 

abused its discretion by sentencing him to an excessive sentence without duly 

considering mitigating factors is frivolous. Counsel contends, in the first 

instance, that Evans’s claim is not reviewable because his appeal is untimely 

and he does not raise a substantial question for review. Even if reviewable, 

counsel avers the trial court properly determined that it did not abuse its 

discretion when sentencing Evans. We disagree with counsel that the 

discretionary sentencing claim Evans wishes to raise is not reviewable, but we 

agree with counsel that Evans’s challenge to the discretionary aspects of his 

sentence is without merit. 

This Court will only review a claim challenging the discretionary aspects 

of a sentence if the appellant shows he has filed a timely notice of appeal, 

properly preserved his claim at sentencing or in a post-sentence motion, 

included a statement pursuant to Pa.R.A.P. 2119(f) in his brief, and raised a 

substantial question that his sentence is not appropriate under the Sentencing 

Code. See Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) 

(setting out these requirements and defining a substantial question as one 

where the appellant advances a colorable argument that the sentencing 

court’s actions were either inconsistent with a specific provision of the 

Sentencing Code or contrary to the fundamental norms underlying the 

sentencing process). 
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Counsel first asserts in his Anders brief that Evans’s appeal is untimely, 

which, of course, would leave this Court without jurisdiction over this appeal 

no matter what type of claim is presented. See Commonwealth v. Moir, 766 

A.2d 1253, 1254 (Pa. Super. 2000) (stating that the question of the timeliness 

of an appeal is jurisdictional). Here, counsel avers Evans’s appeal was 

untimely because the clerk of courts did not receive a paper copy of the postsentence motion filed by previous counsel until June 24, 2021, which fell 

outside the ten-day filing period for post-sentence motions. See Pa.R.Crim.P. 

720 (A)(1). According to counsel, because the post-sentence motion was 

untimely, Evans was required to file a notice of appeal within 30 days of the 

imposition of his judgment of sentence on May 26, 2021. See Pa.R.Crim.P. 

720 (A)(3). Evans did not, however, file his notice of appeal until October 21, 

2021.

In reciting this procedural history, counsel neglects to mention that 

previous counsel faxed a motion for reconsideration of the sentence, with an 

attached certification of notice of service, to the clerk of courts within the tenday period for filing post-sentence motions. The docket reflects receipt of this 

fax, along with the notation that the original post-sentence motion was being 

sent by mail. In addition, the record contains a copy of the fax, which is timestamped with the date of its receipt. Under these circumstances, we decline 

to find that the post-sentence motion was untimely filed. See 

Commonwealth v. Austin, 66 A.3d 798, 807 n. 6 (Pa. Super. 2013) (holding 
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the appellant’s post-sentence motion, which contained a certification of notice 

of service, was timely filed when it was received by fax at the clerk of courts 

within the ten-day filing period even though it was not docketed by the clerk 

of courts until after the ten-day filing period). Therefore, because Evans’s 

appeal was filed within 30 days of the trial court’s denial of the timely postsentence motion, we find the appeal to also be timely. See Pa.R.Crim.P. 

720(A)(2)(a).

Counsel also asserts Evans’s claim is not reviewable by this Court 

because it fails to raise a substantial question. However, we note that there is 

caselaw supporting the conclusion that a claim such as the one Evans wishes 

to raise on appeal - that the court failed to consider mitigating circumstances 

and imposed an excessive sentence - constitutes a substantial question. See 

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en 

banc) (stating this Court has held that a claim that the trial court imposed an 

excessive sentence, along with the claim that the court failed to consider 

mitigating factors, raises a substantial question).

For its part, the Commonwealth contends that Evans’s discretionary 

sentencing claim is not reviewable because counsel did not include a Rule 

2119(f) statement in his Anders brief. This Court, however, has previously 

held that counsel’s failure to include a Rule 2119(f) statement in an Anders

brief does not preclude review of whether an appellant’s challenge to the 

discretionary aspects of his sentence is frivolous. See Commonwealth v. 
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Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015). Therefore, we do not agree 

with Evans’s counsel or the Commonwealth that Evans’s claim is not 

reviewable at this time.

Both Evans’s counsel and the Commonwealth contend that, even if 

Evans’s claim is reviewable, the trial court properly found that Evans’s claim 

that the court abused its discretion by sentencing him to an excessive 

sentence without duly considering mitigating circumstances is without merit. 

We agree.

Sentencing is within the discretion of a trial court and this Court will not 

disturb a sentence unless we find the trial court committed a manifest abuse 

of discretion. See Commonwealth v. Lekka, 210 A.3d 343, 350 (Pa. Super. 

2019). In reviewing a record to determine whether the trial court abused its 

discretion, the Sentencing Code directs this Court to consider the nature and 

circumstances of the crime; the history and characteristics of the defendant; 

the trial court’s findings and the court’s opportunity to observe the defendant; 

and the sentencing guidelines. See 42 Pa. C.S.A. § 9781(d). 

The Sentencing Code also instructs trial courts to consider “the 

protection of the public, the gravity of the offense as it relates to the impact 

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

of the defendant.” 42 Pa. C.S.A. § 9721(b). The balancing of these sentencing 

factors is solely within the province of the trial court. See Lekka, 210 A.3d at 

353. Likewise, the weight accorded to any mitigating or aggravating factors 
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presented to the trial court is within the court’s exclusive domain. See 

Commonwealth v. Chilquist, 548 A.2d 272, 274 (Pa. Super. 1988).

Here, in rejecting Evans’s claim, the trial court stated that it had, in fact, 

considered all of the mitigating factors at the time of sentencing. See Trial 

Court Opinion, 2/1/22, at 3. The Commonwealth summarizes those mitigating 

circumstances, and the trial court’s acknowledgment of those circumstances, 

as follows: 

[D]efense counsel spoke of [Evans’s] absence of a prior 

criminal record, his remorse, his community volunteerism, the 

death of his parents and his attendance at Kutztown University, 

and she presented over 20 letters on his behalf speaking of his 

good character. Evans then presented the testimony of his friend 

[ ] and his twin sister [ ], who spoke of his good character, his 

remorse, his troubled youth in foster care and his supportiveness. 

Evans spoke on his own behalf, expressi[ng] remorse, accepting 

responsibility for his actions, and explaining that his mother was 

incarcerated because she killed his father in front of him when he 

was four years old. Evans also explained that at the time of this 

offense, his mother was suffering from stage 4 cancer, his 

adoptive aunt was suffering from liver failure, and he was in 

danger of losing his financial aid at college. ...

The record reveals that the trial court took all these factors 

into consideration when imposing sentence upon Evans. ... [T]he 

court commented that this was Evans’s first criminal offense, and 

he remained crime free while on bail. The court also recognized 

his family hardships, his mental health history and the absence of 

good parenting. 

Commonwealth’s Brief at 8-9 (citations to notes of testimony omitted). 

We add that the trial court also confirmed it had reviewed the 

presentence investigation report that had been prepared for the purpose of 

sentencing Evans. See N.T. Guilty Plea and Sentencing, 5/26/21, at 23. At 
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the same time, the court stated it had considered the seriousness of the crime 

and the testimony of the victim, who told the court he continued to suffer from 

headaches as a result of the concussion he sustained during the robbery. See 

id. at 9-10, 25, 26, 

Based on all of the above, the court decided to sentence Evans in the 

bottom of the standard range, 40 months to eight years. See id. at 27. The 

court specifically noted that the maximum sentence it imposed was well below 

the 20-year maximum that was permissible for each count to which Evans 

pleaded guilty. See Trial Court Opinion, 2/1/22, at 2-3. We simply fail to see 

how the trial court abused its discretion in sentencing Evans, either by 

imposing an excessive sentence or by failing to consider mitigating 

circumstances. We therefore agree with counsel that Evans’s claim is without 

merit. 

We have also independently reviewed the record and can discern no 

other non-frivolous issues. Accordingly, we affirm Evans’s judgment of 

sentence and grant counsel’s application to withdraw.

Judgment of sentence affirmed. Application to withdraw from 

representation granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/06/2022