J-S35045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY DALE REEVE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1908 MDA 2017

Appeal from the Judgment of Sentence October 23, 2017

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

No(s): CP-08-CR-0000261-2017

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED JUNE 29, 2018

Timothy Dale Reeve (Appellant) appeals from the judgment of sentence 

imposed after he pled guilty to corruption of minors.1 Appellant’s counsel 

(“Counsel”)2 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 affirm Appellant’s 

judgment of sentence and grant Counsel’s petition to withdraw.

The trial court summarized the factual and procedural history as follows:

In April 2017, [Appellant] was charged with Aggravated 

Indecent Assault, 18 Pa.C.S. § 3125(a)(1), a felony of the second 

degree, Corruption of Minors, 18 Pa.C.S. § 6301(a)(1)(i), a 

misdemeanor of the first degree, and Indecent Assault, 18 Pa.C.S. 

§ 3126(a)(1), a misdemeanor of the second degree. The charges 

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1 18 C.S.A. § 6301(a)(1)(i).

2 Counsel represented Appellant both at the trial court and on appeal.
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arose out of conduct that allegedly occurred at [Appellant’s] home 

after the teenage female victim, who was babysitting [Appellant’s]

children, had gone to sleep.

On August 23, 2017, [Appellant] entered a plea of nolo 

contendere to the Corruption of Minors charge, a misdemeanor of 

the first degree. During the hearing, [Appellant] agreed that the 

Commonwealth would be able to establish the following facts, as 

recited on the record by the District Attorney:

[Appellant], at the age of 32 more or less, had indecent 

contact with the seventeen year old female whose-who [sic] 

testified at the preliminary hearing, . . . [in that he had] 

manual contact with her vaginal area and digital penetration 

of her vagina. This occurred in Wysox Township in 

[Appellant’s] home in the summer of 2016.

See Tr. 8/23/17, 4:17-24.

On October 23, 2017, [Appellant] was sentenced to total 

confinement and fines and costs, such that [Appellant] shall 

undergo an indeterminate period of incarceration, the minimum 

of which shall be nine (9) months and the maximum of which shall 

be twenty-three (23) months. The sentence was a County 

sentence and within the standard range. [Appellant] also received

a fine in the amount of Five Hundred Dollars ($500).

On October 27, 2017, [Appellant] filed a post sentence 

motion seeking reconsideration of the length of the sentence on 

the basis that “his prior record score was the result of old 

charges.” See Motion, para. 4.

On November 21, 2017, this Court denied [Appellant’s] post 

sentence motion, finding that the sentence “was appropriate given 

the nature and circumstances of the crime, the background and 

character of [Appellant], and the sentencing guidelines.” See 

Order, dated November 21, 2017. The Court also noted that the 

duration of the confinement “was consistent with the appropriate 

level of protection of the public, the gravity of the offense as it 

related to the impact on the life of the victim and the community, 

and the rehabilitative need of [Appellant].” Id.

On December 8, 2017, [Appellant] filed a timely Notice of 

Appeal.
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Trial Court Opinion, 2/26/18, at 1-2.

On December 18, 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 December 29, 2017, Counsel 

filed a statement of intent to file an Anders brief.3 On April 6, 2018, Counsel 

filed a brief with this Court, in which he petitioned for leave to withdraw from 

representation pursuant to Anders.

4

Preliminarily, we note that there are particular mandates that counsel 

seeking to withdraw pursuant to Anders must follow. These mandates and 

the significant protection they provide to an 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 

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3

In averring that Appellant’s appeal was “frivolous,” Counsel nonetheless 

indicated that Appellant wished to challenge the validity of his plea and the 

inappropriateness of his sentence.

4 Counsel did not file a separate petition to withdraw, but rather appended his 

petition to his Anders brief. While this is satisfactory, we note our preference 

that counsel file a separate petition to withdraw. See Commonwealth v. 

Fischetti, 669 A.2d 399, 400 (Pa. Super. 1995) (“Although we believe the 

more desirable practice would be to submit a separate withdrawal request to 

the court, we . . . treat counsel’s [request] in the brief as such a request.”); 

see also Commonwealth v. Green, 513 A.2d 1008, 1010 (Pa. Super. 1986).
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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.

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 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 meets these obligations, “it then becomes the 

responsibility of the reviewing court to make a full examination of the 
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proceedings and make an independent judgment to decide whether the appeal 

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

Instantly, we conclude that Counsel has complied with the technical 

requirements of Anders. Counsel has filed a petition to withdraw with this 

Court. In conformance with Santiago, Counsel has also filed a brief which 

includes the facts and procedural history of the case, and discusses the issues

which might arguably support Appellant’s appeal, i.e., whether “Appellant 

should be allowed to withdraw a plea of no contest,” and “the sentence of the 

court was excessive.” See Anders Brief at 5. Counsel’s brief additionally 

sets forth his conclusion that the appeal is frivolous and includes citation to 

relevant authority. See id. at ii, 3, 11. Finally, Counsel provided this Court 

with a copy of the letter that he sent to Appellant, which Counsel served upon 

Appellant, along with 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. 

As noted above, the issues presented by Counsel in the Anders brief is 

whether Appellant’s plea was knowingly and voluntarily entered, and whether 

the court imposed an excessive sentence. We have reviewed the written plea 

colloquy as well as the notes of testimony from the August 23, 2017 plea 

hearing, both of which indicate that Appellant entered his plea knowingly, 

intelligently, and voluntarily. Moreover, Appellant did not seek to withdraw 
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his guilty plea at the hearing, nor did he file a post-sentence motion to 

withdraw his guilty plea within ten days of sentencing. We have explained:

A defendant wishing to challenge the voluntariness of a guilty plea 

on direct appeal must either object during the plea colloquy or file 

a motion to withdraw the plea within ten days of sentencing. 

Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either 

measure results in waiver. Historically, Pennsylvania courts 

adhere to this waiver principle because it is for the court which 

accepted the plea to consider and correct, in the first instance, 

any error which may have been committed.

Commonwealth v. Lincoln, 72 A.3d 606, 609–610 (Pa. Super. 2013) 

(citations and quotations omitted).

Based on the foregoing, Appellant waived any challenge to the validity 

of his plea. In addition, our review of the record comports with the trial court’s 

determination that “a review of the transcript of the plea hearing and the 

written plea colloquy completed by [Appellant] confirms that [Appellant] is 

unable to establish that his plea of nolo contendere was anything but knowing, 

voluntary and intelligent.” Trial Court Opinion, 2/26/18, at 3 (citations 

omitted). Counsel is thus correct that raising this issue on appeal would be 

frivolous.

With regard to Appellant’s sentencing claim, we have likewise reviewed 

the record, and particularly the notes of testimony from the October 23, 2017 

hearing. The trial court stated that it reviewed the pre-sentence investigation 

report, and after further discussion, imposed a standard range sentence of 9 

to 23 months of incarceration, with eligibility for work release, stating to 

Appellant, “I hope you’re able to keep your job and keep supporting your 
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family while you’re incarcerated.” N.T., 10/23/17, at 1, 8-10. On this record, 

Appellant claims that his sentence “is excessive . . . [and] should have been 

shorter.” Anders Brief at 7.

This claim 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 

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:
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(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, 

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

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

Appellant has substantially complied with the first three prongs of the 

discretionary aspect test to invoke our jurisdiction. However, Appellant has 

failed to meet the fourth prong because he has not presented a substantial 

question. “[W]here the sentencing court imposed a standard-range sentence 

with the benefit of a pre-sentence 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). Again, our review of the record reveals no support for 

Appellant’s claim that his sentence was excessive, and we agree with Counsel 

that Appellant’s discretionary aspects of sentencing claim is frivolous.
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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.

Judgment of sentence affirmed. Petition to withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/29/2018