J-S12038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PETER M. BENNETHUM, JR.,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1636 MDA 2018

Appeal from the Judgment of Sentence Entered August 31, 2018

in 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 bench 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, modification 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 January 
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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 court 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 

Commonwealth 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.”) (citation 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 and 

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 counsel 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.
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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 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.

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 him 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 representation, we will independently review the record to determine 

whether Bennethum’s appeal is, in fact, wholly frivolous.

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1 Bennethum did not file a pro se appellate brief, nor did he retain alternate 

counsel for this appeal.
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Bennethum argues that the trial court imposed an excessive sentence 

by directing Bennethum to serve a consecutive 4-year probationary 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 appellant’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) (concluding 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 rehabilitative 
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needs, presents a substantial question). Thus, we will consider the merits 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 law, 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 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 the victim and on the community, and the 

rehabilitative 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] court 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.
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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,2the 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 all 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 

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2 Although Bennethum does not specifically challenge his sentence of time 

served, we note that the 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).
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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-year 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