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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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. Appellant also appeals from 

the judgment of sentence entered in the Erie County Court of Common 
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Pleas, following his open guilty plea to burglary at 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. On August 8, 2011, the 

court sentenced Appellant to three (3) years’ probation for the theft by 

unlawful taking conviction. The court sentenced Appellant 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 probation by 

committing a burglary in November 2013. On February 27, 2014, Appellant 

entered an open guilty plea to burglary at No. 3793 of 2013. With the 

benefit of a pre-sentence investigation (“PSI”) report, 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 aggregate 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 conviction was thirty-five 

(35) to forty-five (45) months. Appellant’s burglary sentence fell within the 

standard range. 
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of 2011 to run consecutive to the sentence at No. 3793 of 2013. Appellant 

did not file post-sentence motions. 

 Appellant timely filed notices of appeal at both docket 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 Court consolidated the 

appeals sua sponte. 

 As a preliminary matter, appellate counsel seeks to 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, certifying that after a thorough 

review of the record, counsel has concluded the issues to be raised are 

wholly frivolous; 2) file a brief referring to anything 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 compliance 

with these requirements is sufficient. Commonwealth v. Wrecks, 934 

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent 

requirements have been met, this Court must then make an independent 

evaluation of the record to determine whether the appeal is, in fact, wholly 

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 
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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 counsel seeks to withdraw 

representation: 

Neither Anders nor McClendon[3] requires that counsel’s 

brief provide an argument of any sort, let alone the 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 arguably 

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 Court held: 

[I]n the Anders brief that accompanies court-appointed 

counsel’s petition to withdraw, counsel 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. 

Id. at 178-79, 978 A.2d at 361. 

____________________________________________ 

3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
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 Instantly, appellate counsel filed a petition for leave to withdraw. The 

petition states counsel reviewed the record and concluded the appeal would 

be wholly frivolous. Counsel also supplied Appellant with a copy of the 

withdrawal petition, the brief, and a letter explaining Appellant’s right to 

proceed pro se or with new privately retained counsel to pursue any 

additional arguments Appellant deems worthy of this Court’s consideration. 

In her Anders brief, counsel provides a summary of the procedural history 

of the case. Counsel refers to facts in the record that might arguably 

support the issue raised on appeal and offers citations to relevant law. The 

brief also provides counsel’s reasons for her conclusion 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 appeal 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 mitigating factors at 

sentencing. Specifically, Appellant emphasizes his mental health issues, 

which require him to take medication. Appellant also claims he quit using 

cocaine and marijuana in 2010, he has no history of violence, and he 
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supports nine (9) individuals living in his house, including his bedridden 

mother and developmentally disabled uncle. In light of these facts, 

Appellant insists the court imposed sentences inconsistent 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 Appellant’s rehabilitative 

needs. Appellant concludes the court abused its discretion by imposing a 

manifestly excessive and clearly unreasonable sentence. Appellant’s 

challenge is to the discretionary aspects of his sentence.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 challenge the discretionary 

aspects of his sentence. 

To the extent Appellant challenges the sentence imposed following the 

revocation of probation at No. 987 of 2011, this Court is generally limited to 

determining the validity of the revocation proceeding 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 reviewable, an appellant may 

also challenge the discretionary aspects of a sentence 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 imposed following revocation 

of probation). 
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that sentence is manifestly excessive challenges discretionary aspects of 

sentencing). 

 Challenges to the discretionary aspects of sentencing 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 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

Objections to the discretionary aspects of a sentence are generally waived if 

they are not raised at the sentencing hearing or raised 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 sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

____________________________________________ 

5

 Here, Appellant failed to raise his discretionary aspects claim at the 

sentencing hearing or in post-sentence motions. Due 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 appeal). 
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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 appellant separately set forth 

the reasons relied upon for allowance of appeal ‘furthers the purpose evident 

in the Sentencing Code as a whole of limiting any challenges to the trial 

court’s evaluation of the multitude of factors impinging 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 sentencing judge’s actions 

were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which 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 might raise a 

substantial question if the appellant’s Rule 2119(f) statement sufficiently 
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articulates the manner in which the sentence imposed violates a specific 

provision of the Sentencing Code or the norms underlying the sentencing 

process. Mouzon, supra at 435, 812 A.2d at 627. Nevertheless, “[a]n 

allegation that a sentencing court ‘failed to consider’ or ‘did not adequately 

consider’ certain factors does not raise a substantial 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 failed to consider the 

mitigating factors does not raise a substantial question 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 presume 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, absent more, cannot be 

considered excessive or unreasonable). We note the Sentencing Guidelines 
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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 that the court did not 

adequately consider his mental health history and the circumstances of his 

family life. At the sentencing/revocation hearing, Appellant presented 

testimony from Yanette Barnes, his mental health case manager. Ms. 

Barnes indicated that Appellant attends outpatient treatment for his various 

conditions, but he does not always follow the recommendations 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 is “something [Appellant] 

would need to work on in therapy and actively participate.” (Id. at 10). 

The court also received testimony from Christine Cooper, the burglary 

victim at No. 3793 of 2013. Ms. Cooper, who is Appellant’s mother-in-law, 

denied Appellant’s assertion that he supports the family members living at 

his house. Ms. Cooper testified, “[E]verybody in that 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 between right and wrong. 

Moreover, Ms. Cooper testified that Appellant committed the burglary on a 
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date when he knew Ms. Cooper would be out of town for the Thanksgiving 

holiday. 

In light of this testimony, the court made the following on-the-record 

statement in support of the sentences imposed: 

The starting point for analysis of this case is a mental 

health diagnosis with [Appellant] and psychiatric 

evaluation, which I have, which is complemental with what 

the caseworker said. And there are in the diagnosis some 

significant factors, some of which indicate that [Appellant] 

is a victim of some events beyond his control, and I’ve 

looked at that. I’m trying to determine and navigate 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 capacity to 

plan, connive, and take advantage of people. So even 

allowing for his mental health [diagnosis]...he still bears 

culpability for much of his conduct and I’m going to hold 

him to account for that. 

(Id. at 22-23). Here, the record indicates the court was aware of the 

relevant sentencing considerations and weighed them in a meaningful 

fashion. Based upon the foregoing, we conclude Appellant’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. 
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Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/24/2014