J-S64037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. SHANE ALLEN DIETRICH Appellant No. 795 WDA 2014

Appeal from the Judgment of Sentence April 11, 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000987-2011

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. SHANE ALLEN DIETRICH Appellant No. 796 WDA 2014

Appeal from the Judgment of Sentence April 11, 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003793-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J. MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 24, 2014 Appellant, Shane Allen Dietrich, appeals from the judgment of sentence entered in the Erie County Court of Common Pleas, following revocation of his probation at No. 987 of 2011. Ap pellant also appeals from the judgment of sentence entered in the Erie County Court of CommonJ-S64037-14

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Pleas, following his open guilty plea to burglary a t No. 3793 of 2013. 1 We affirm and grant counsel’s petition to withdraw. The relevant facts and procedural history of this appeal are as follows. On June 30, 2011, Appellant entered an open guilty plea to theft by unlawful taking and criminal trespass at No. 987 of 2011. O n August 8, 2011, the court sentenced Appellant to three (3) years’ proba tion for the theft by unlawful taking conviction. The court sentenced Ap pellant to a concurrent term of three (3) years’ probation for the criminal trespass conviction. Appellant did not file a notice of appeal. Appellant subsequently violated the terms of his p robation by committing a burglary in November 2013. On Februar y 27, 2014, Appellant entered an open guilty plea to burglary at No. 3793 of 2013. With the benefit of a pre-sentence investigation (“PSI”) rep ort, the court conducted Appellant’s sentencing hearing on April 11, 2014. At the conclusion of the hearing, the court sentenced Appellant to three (3) to six (6) years’ imprisonment for the burglary conviction. 2 The court also revoked probation at No. 987 of 2011, re-sentencing Appellant to an a ggregate term of one (1) to two (2) years’ imprisonment. The court ordered the sentence at No. 987

____________________________________________ 1 18 Pa.C.S.A. § 3502.

2 With a prior record score of “RFEL” and an offense gravity score of seven (7), the standard range for Appellant’s burglary co nviction was thirty-five (35) to forty-five (45) months. Appellant’s burgla ry sentence fell within the standard range.J-S64037-14

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of 2011 to run consecutive to the sentence at No. 3 793 of 2013. Appellant did not file post-sentence motions. Appellant timely filed notices of appeal at both d ocket numbers on Monday, May 12, 2014. That same day, counsel filed statements of intent to file briefs pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On July 29, 2014, this Cour t consolidated the appeals sua sponte

. As a preliminary matter, appellate counsel seeks t o withdraw her representation pursuant to Anders and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifyin g that after a thorough review of the record, counsel has concluded the iss ues to be raised are wholly frivolous; 2) file a brief referring to anyt hing in the record that might arguably support the 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 to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compli ance with these requirements is sufficient. Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa.Super. 2007). “After establish ing that the antecedent requirements have been met, this Court must then ma ke an independent evaluation of the record to determine whether the a ppeal is, in fact, wholly frivolous.” Commonwealth v. Palm , 903 A.2d 1244, 1246 (Pa.Super.J-S64037-14

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2006) (quoting Commonwealth v. Townsend , 693 A.2d 980, 982 (Pa.Super. 1997)).
In Santiago, supra , our Supreme Court addressed the briefing requirements where court-appointed appellate counse l seeks to withdraw representation:

Neither Anders nor McClendon [3] requires that counsel’s brief provide an argument of any sort, let alone th e type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arg uably support the appeal. * * * Under Anders

, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal. Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Cour t held:

[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (1) p rovide a summary of the procedural history and facts, with c itations 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 frivo lous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the releva nt facts of record, controlling case law, and/or statutes on po int that have led to the conclusion that the appeal is frivo lous. Id. at 178-79, 978 A.2d at 361.

____________________________________________ 3 Commonwealth v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981).J-S64037-14

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Instantly, appellate counsel filed a petition for leave to withdraw. The petition states counsel reviewed the record and con cluded the appeal would be wholly frivolous. Counsel also supplied Appella nt with a copy of the withdrawal petition, the brief, and a letter explai ning Appellant’s right to proceed pro se or with new privately retained counsel to pursue a ny additional arguments Appellant deems worthy of this Court’s consideration. In her Anders brief, counsel provides a summary of the procedura l history of the case. Counsel refers to facts in the record that might arguably support the issue raised on appeal and offers citat ions to relevant law. The brief also provides counsel’s reasons for her concl usion that the appeal is wholly frivolous. Thus, counsel has substantially complied with the requirements of Anders and Santiago

. As Appellant has filed neither a pro se brief nor a counseled brief with new privately retained counsel, we review this appe al on the basis of the issue raised in the Anders brief:

WAS THE SENTENCE IN THIS CASE MANIFESTLY EXCESSIVE AND CLEARLY UNREASONABLE AND NOT INDIVIDUALIZED AS REQUIRED BY LAW? ( Anders Brief at 1). Appellant contends the court failed to consider mi tigating factors at sentencing. Specifically, Appellant emphasizes his mental health issues, which require him to take medication. Appellant al so claims he quit using cocaine and marijuana in 2010, he has no history of violence, and heJ-S64037-14

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supports nine (9) individuals living in his house, including his bedridden mother and developmentally disabled uncle. In ligh t of these facts, Appellant insists the court imposed sentences incon sistent with the protection of the public, the gravity of the offens e as it relates to the impact on the life of the victim and on the community, and Appellant’s rehabilitative needs. Appellant concludes the court abused its di scretion by imposing a manifestly excessive and clearly unreasonable sente nce. Appellant’s challenge is to the discretionary aspects of his se ntence. 4 See Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) (stating claim

____________________________________________ 4 “[W]hile a guilty plea which includes sentence negotiation ordinarily precludes a defendant from contesting the validity of his...sentence other than to argue that the sentence is illegal or that the sentencing court did not have jurisdiction, open plea agreements are an exception in which a defendant will not be precluded from appealing the discretionary aspects of the sentence.” Commonwealth v. Tirado , 870 A.2d 362, 365 n.5 (Pa.Super. 2005) (emphasis in original). “An ‘open ’ plea agreement is one in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea was “open” as to sentencing, so he can challen ge the discretionary aspects of his sentence. To the extent Appellant challenges the sentence imp osed following the revocation of probation at No. 987 of 2011, this Co urt is generally limited to determining the validity of the revocation proceedi ng and the legality of the judgment of sentence imposed. Commonwealth v. Heilman , 876 A.2d 1021 (Pa.Super. 2005). Notwithstanding the stated scope of review suggesting only the legality of a sentence is revie wable, an appellant may also challenge the discretionary aspects of a sente nce imposed following revocation. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). See also Commonwealth v. Cappellini , 690 A.2d 1220 (Pa.Super. 1997) (addressing discretionary aspects of sentence impos ed following revocation of probation).J-S64037-14

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that sentence is manifestly excessive challenges di scretionary aspects of sentencing). Challenges to the discretionary aspects of sentenc ing do not entitle an appellant to an appeal as of right. Sierra, supra . Prior to reaching the merits of a discretionary sentencing issue:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appe al, see Pa.R.A.P. 902 and 903; (2) whether the issue was pr operly preserved at sentencing or in a motion to reconside r and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 211 9(f); and (4) whether there is a substantial question that th e sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied , 589 Pa. 727, 909 A.2d 303 (2006) (internal citati ons omitted). Objections to the discretionary aspects of a senten ce are generally waived if they are not raised at the sentencing hearing or ra ised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788 (Pa.Super. 2003), appeal denied , 574 Pa. 759, 831 A.2d 599 (2003). 5 When appealing the discretionary aspects of a sent ence, an appellant must invoke the appellate court’s jurisdiction by i ncluding in his brief a

____________________________________________ 5 Here, Appellant failed to raise his discretionary aspects claim at the sentencing hearing or in post-sentence motions. Du e to counsel’s petition to withdraw, however, we proceed with our analysis of Appellant’s issue. See Commonwealth v. Lilley , 978 A.2d 995, 998 (Pa.Super. 2009) (explaining Anders requires review of issues otherwise waived on appe al).J-S64037-14

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separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an appell ant separately set forth the reasons relied upon for allowance of appeal ‘fu rthers the purpose evident in the Sentencing Code as a whole of limiting any c hallenges to the trial court’s evaluation of the multitude of factors impi nging on the sentencing decision to exceptional cases.’” Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied , 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) ( en banc ) (emphasis in original)). The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the appellant advances a colorable argument that the se ntencing judge’s actions were either: (1) inconsistent with a specific provi sion of the Sentencing Code; or (2) contrary to the fundamental norms whic h underlie the sentencing process.” Sierra, supra at 912-13 (quoting Commonwealth v.
Brown , 741 A.2d 726, 735 (Pa.Super. 1999) ( en banc ), appeal denied , 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that a sentence is manifestly excessive mig ht raise a substantial question if the appellant’s Rule 2119(f ) statement sufficientlyJ-S64037-14

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articulates the manner in which the sentence impose d violates a specific provision of the Sentencing Code or the norms under lying the sentencing
process. Mouzon, supra at 435, 812 A.2d at 627. Nevertheless, “[a]n allegation that a sentencing court ‘failed to consi der’ or ‘did not adequately consider’ certain factors does not raise a substant ial question that the sentence was inappropriate.” Commonwealth v. Cruz-Centeno , 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied , 544 Pa. 653, 676 A.2d 1195 (1996) (quoting Commonwealth v. Urrutia , 653 A.2d 706, 710 (Pa.Super. 1995), appeal denied , 541 Pa. 625, 661 A.2d 873 (1995)). Instantly, Appellant’s assertion that the court fa iled to consider the mitigating factors does not raise a substantial que stion under the circumstances of this case. See Cruz-Centeno, supra . The court had the benefit of a PSI report. ( See N.T. Sentencing and Probation Revocation Hearing, 4/11/14, at 6, 22.) Therefore, we can pre sume the court considered the relevant sentencing factors. See Tirado, supra at 366 n.6 (stating where sentencing court had benefit of PSI, law presumes court was aware of and weighed relevant information regarding defendant’s character and mitigating factors). The court also imposed a standard range sentence at No. 3793 of 2013. Thus, Appellant’s sentence at No. 3793 of 2013 is presumptively valid. See Cruz-Centeno, supra (explaining that combination of PSI and standard range sentence, abs ent more, cannot be considered excessive or unreasonable). We note the Sentencing GuidelinesJ-S64037-14

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do not apply to the sentence imposed following the revocation of probation at No. 987 of 2011. See Commonwealth v. Ferguson , 893 A.2d 735, 739 (Pa.Super. 2006), appeal denied , 588 Pa. 788, 906 A.2d 1196 (2006). Moreover, the record belies Appellant’s assertion t hat the court did not adequately consider his mental health history and t he circumstances of his family life. At the sentencing/revocation hearing, Appellant presented testimony from Yanette Barnes, his mental health ca se manager. Ms. Barnes indicated that Appellant attends outpatient treatment for his various conditions, but he does not always follow the recom mendations of the healthcare professionals. Ms. Barnes informed the court that outpatient treatment will continue to help Appellant, but “it’ s all up to him.” ( See N.T. Sentencing and Probation Revocation Hearing at 9.) Ms. Barnes also conceded that Appellant’s lack of impulse control i s “something [Appellant] would need to work on in therapy and actively parti cipate.” ( Id. at 10). The court also received testimony from Christine Co oper, the burglary victim at No. 3793 of 2013. Ms. Cooper, who is App ellant’s mother-in-law, denied Appellant’s assertion that he supports the f amily members living at his house. Ms. Cooper testified, “[E]verybody in t hat household all receive their own stipends of SSI. It is not [Appellant’s] income that they are relying on.” ( Id. at 13). Regarding Appellant’s mental health, Ms. Cooper stated that Appellant understood the difference bet ween right and wrong. Moreover, Ms. Cooper testified that Appellant commi tted the burglary on aJ-S64037-14

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date when he knew Ms. Cooper would be out of town f or the Thanksgiving holiday. In light of this testimony, the court made the foll owing on-the-record statement in support of the sentences imposed:

The starting point for analysis of this case is a m ental health diagnosis with [Appellant] and psychiatric evaluation, which I have, which is complemental wit h what the caseworker said. And there are in the diagnosi s some significant factors, some of which indicate that [A ppellant] is a victim of some events beyond his control, and I’ve looked at that. I’m trying to determine and naviga te to what degree we have things that [Appellant] may not be responsible for.... But here there’s enough evidence from talking to the victim that [Appellant] has the capa city to plan, connive, and take advantage of people. So ev en allowing for his mental health [diagnosis]...he still bears culpability for much of his conduct and I’m going t o hold him to account for that. ( Id. at 22-23). Here, the record indicates the court w as aware of the relevant sentencing considerations and weighed them in a meaningful fashion. Based upon the foregoing, we conclude App ellant’s sentences should remain undisturbed. Accordingly, we affirm the judgment of sentence and grant counsel’s petition to withdraw. Judgment of sentence affirmed; counsel’s petition to withdraw is granted.

Judgment Entered.J-S64037-14

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Joseph D. Seletyn, Esq. Prothonotary

Date: 10/24/2014