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

v.

PETER M. BENNETHUM , JR.,

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

PENNSYLVANIA

No. 1636 MDA 2018 Appeal from the Judgment of Sentence Entered August 31, 2018

i n the Court of Common Pleas of Berks County Criminal Division at No(s): CP

- 06

- CR

- 0005108

- 2017 BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED MAY 09, 2019 Peter M. Bennethum, Jr. (“Bennethum”), appeals from the judgment of sentence imposed following his conviction of criminal trespass. See 18 Pa.C.S.A. § 3503(a)(1)(ii). Additionally, Samuel J. Mills, Esquire (“Attorney Mills”), has filed a Petition to Withdraw as counsel, and an accompanying brief pursuant to Anders v. California , 386 U.S. 738 (1967). We grant Attorney Mills’s Petition to Withdraw, and affirm Bennethum’s judgment of sentence. On August 31, 2018, following a be nch trial, Bennethum was convicted of criminal trespass. The trial court sentenced Bennethum to time served (339 days) to 23 months in prison, followed by 4 years of probation. Bennethum filed a timely post

- sentence Motion, seeking , inter alia , modificat ion of his
sentence. The trial court denied Bennethum’s post

- sentence Motion. Bennethum filed a timely Notice of Appeal and a court

- ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. On JanuaryJ

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13, 2019, Attorney Mills filed a Petition to Withdraw as counsel, and an accompanying Anders Brief.
In the Anders Brief, Attorney Mills presents the following issue for our
review: Whether the trial court erred and abused its discretion in imposing a sentence which included four (4) years of consecutive probation following a sentence of time[]served (339 days) to twenty

- three (23) months and is excessive in nature, where the trial co urt failed to consider [Bennethum’s] rehabilitative needs and the protection of society?
Anders Brief at 7. We must first determine whether Attorney Mills has complied with the dictates of Anders in petitioning to withdraw from representation. See
Commo nwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) ( en banc ) (stating that “[w]hen faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel’s request to withdraw.”) (ci tation omitted). Pursuant to Anders , when an attorney believes that an appeal is frivolous and wishes to withdraw as counsel, he or she must (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record a nd interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counse l or to raise any additional points that he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the [appellate] court.J

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Commonwealth v. Burwell , 42 A.2d 1077, 1083 (Pa. Super. 2012) (citations omitted). Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief 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 suppo rts 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. Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009). In the instant case, Attorney Mills has complied with the requirements set forth in Anders by indicating that he reviewed the record and determined that Bennethum’s appeal would be wholly frivolous. Further, the record contains a copy of the letter that Attorney Mills sent to Bennethum, informing him of Attorney Mills’s intention to withdraw, and advising h im of his right to proceed pro se , retain counsel, and file additional claims. 1 Finally, Attorney Mills’s Anders Brief meets the standards set forth in Santiago . Because Attorney Mills has complied with the procedural requirements for withdrawing from re presentation, we will independently review the record to determine whether Bennethum’s appeal is, in fact, wholly frivolous.

_________________ __________ ______ ____ _______ 1 Bennethum did not file a pro se appellate brief, nor did he retain alternate counsel for this appeal.J

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Bennethum argues that the trial court imposed an excessive sentence by directing Bennethum to serve a consecutive 4

- year probation ary sentence, without considering his rehabilitative needs and the protection of the public. See Anders Brief at 18

- 19. Bennethum challenges the discretionary aspects of his sentence, from which there is no absolute right to appeal. See Commonwealth v. Hill , 66 A.3d 359 , 363 (Pa. Super. 2013)

. Prior to reaching the merits of a discretionary sentencing issue, [this Court conducts] a four

- part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appell ant ’ s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b ). Commonwealth v. Moury , 992 A.2d 162, 170 (quotation marks and some citations omitted). Here, Bennethum filed a timely Notice of Appeal, preserved his sentencing claim in a timely post

- sentence Motion, and included a separate Rule 2119(f) Statement in the Anders Brief. Additionally, Bennethum’s claim raises a substantial question for our review. See Commonwealth v.
Caldwell , 117 A.3d 763, 770 (Pa. Super. 2015) (c oncluding that a challenge to the imposition of consecutive sentences as unduly excessive, together with a claim that the trial court failed to consider an appellant’s rehabilitativeJ

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needs, presents a substantial question). Thus, we will consider the meri ts of
his claim. Our standard of review of a challenge to the discretionary aspects of a
sentence is well settled: 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 l aw, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Robinson , 931 A.2d 15, 26 (Pa. Super. 2007). The Sentencing Code provides that “the [trial] court shall fol low 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 the victim and on the community, and the rehabilitat ive needs of the defendant.” 42 Pa.C.S.A. § 9721(b). The trial court must also consider the Sentencing Guidelines. See id. ; see also Commonwealth v. Sheller , 961 A.2d 187, 190 (Pa. Super. 2008) (stating that “[w]hen imposing a sentence, the [trial] cour t is required to consider the sentence ranges set forth in the Sentencing Guidelines....”). Further, regarding probation, “Section 9754 of the Sentencing Code only mandates that a sentencing court keep a term of probation under the maximum term a defendant could be confined.” Commonwealth v. Crump , 995 A.2d 1280, 1284 (Pa. Super. 2010); see also 42 Pa.C.S.A. § 9754.J

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Here, at the time of sentencing, Bennethum’s counsel stated that Bennethum had been receiving mental health treatment since approximately 2003 , and argued that Bennethum could continue with treatment without
court supervision. See N.T., 8/31/18, at 30. Bennethum also exercised his right of allocution, at which time he stated that the court could “trust [him] on not having to have a probationary tail and to actually do extraordinary things for the community and also for [himself] and [his] family.” Id. at 31. Moreover, the trial court indicated, on the record, that it had considered the Sentencing Guidelines, 2 the Commonwealth’s recommendation, and statements made by Bennethum and his counsel. See id. at 31

- 32. In its Opinion, the trial court noted that “by his own admission[, Bennethum] broke into the home of the victim ..., which is a very serious crime.” Trial Court Opinion, 11/16/18, at 3. Further, the trial court determined that the consecutive probationary term “best provided for the protection of the public and the rehabilitative needs of [Bennethum].” Id. Our review confirms that the trial court properly considered al l of the relevant statutory factors before sentencing Bennethum. See 42 Pa.C.S.A. § 9721(b); see also Sheller , supra . Additionally, Bennethum’s probationary term is well below the statutory maximum sentence for criminal trespass, a

_________________ __________ ______ ____ _______ 2 Although Bennethum does not specifically challenge his sentence o f time served, we note that t he offense gravity score for criminal trespass is 4, and Bennethum’s prior record score was 0. Thus, the Sentencing Guidelines recommend a standard

- range sentence of restorative sanctions to 3 months in prison, plus or minus 3 months for the aggravated/mitigated range. See 204 Pa. Code § 303.16(a).J

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second

- degree felony. See 42 Pa.C.S.A. § 9754; see also 18 Pa.C.S.A. § 1103(2) (authorizing a maximum sentence of 10 years in prison for a second

- degree felony). Accordingly, we conclude that the trial court did not abuse its discretion by ordering Bennethum to serve a 4

- ye ar probationary term, consecutive to his sentence of time served. Thus, Bennethum’s sentencing challenge fails. Finally, our independent review of the record discloses no additional

non - frivolous issues that Bennethum could raise on appeal. We therefore grant Attorney Mills’s Petition to Withdraw, and affirm Bennethum’s judgment of sentence. Petition to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/09/2019