Com. v. Gales, A. ( 2017 )

J-S18011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTONIO GALES
Appellant No. 3102 EDA 2016
Appeal from the Judgment of Sentence September 1, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005615-2007
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J. 
MEMORANDUM BY PANELLA, J. FILED APRIL 10, 2017
Appellant, Antonio Gales, appeals from the judgment of sentence
entered on September 1, 2016 in the Philadelphia County Court of Common
Pleas. Additionally, Appellant’s appointed counsel, Stephen O’Hanlon,
Esquire, has filed a petition to withdraw from representation, and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s
petition to withdraw and affirm.
This case returned to the trial court after a panel of this Court vacated
the mandatory minimum sentence imposed for aggravated indecent assault
of a child and remanded for resentencing. See Commonwealth v. Gales,
____________________________________________

Retired Justice assigned to the Superior Court.
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127 EDA 2015 (Pa. Super., filed Jan. 2016) (unpublished memorandum)
(affirming trial court’s order designating of appellant as a sexually violent
predator, vacating mandatory minimum sentence of five to ten years for
aggravated indecent assault of a child pursuant to the holding in Alleyne v.
United States, 133 S.Ct. 2151 (2013)).
On remand, the trial court resentenced Appellant to a period of
imprisonment of five to ten years for aggravated indecent assault of a child,
without regard to the mandatory minimum as set forth in 42 Pa.C.S.A. §
9718. Attorney O’Hanlon filed a post-sentence motion on Appellant’s behalf,
which was later denied by the trial court. This timely appeal follows.
As noted, Attorney O’Hanlon has requested to withdraw and has
submitted an Anders brief in support thereof contending that Appellant’s
appeal is frivolous. The Pennsylvania Supreme Court has articulated the
procedure to be followed when court-appointed counsel seeks to withdraw
from representing an appeal on direct appeal.
[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 arguably believes
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.
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Attorney O’Hanlon has substantially complied with all of the
requirements of Anders as articulated in Santiago. Additionally, Attorney
O’Hanlon confirms he sent a copy of that Anders brief as well as a letter
explaining to Appellant that he has the right to proceed pro se or the right to
retain new counsel. A copy of the letter is appended to Attorney O’Hanlon’s
petition. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.
2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.
2005). Appellant did not file a response to Attorney O’Hanlon’s brief.
We will now proceed to examine the sole issue on appeal. In his Rule
1925(c)(4) statement, Appellant contends that the trial court abused its
discretion by imposing a five to ten year sentence on his aggravated
indecent assault of a child conviction. See Rule 1925(c)(4) Statement,
10/8/16, at 1. Appellant concedes that his argument challenges the
discretionary aspects of the trial court’s sentence. See Anders Brief, at 8.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).
As this Court has explained,
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[t]o reach the merits of a discretionary sentencing issue, we
conduct a fourt-part analysis to determine: (1) whether
appellant filed a timely notice of appeal; (2) whether the issue
was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant’s brief
has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code[.]
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citations
omitted.
Here, Appellant filed a timely notice of appeal and properly preserved
his claims in a post-sentence motion. However, Attorney O’Hanlon does not
include the requisite Rule 2119(f) concise statement or indicate through the
statement of questions presented that Appellant desires to challenge the
discretionary aspects of his sentence in his Anders brief. See, e.g.,
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)
(“[W]e cannot look beyond the statement of questions presented and the
prefatory 2119(f) statement to determine whether a substantial question
exists.”)
Ordinarily, we would find this sentencing claim waived. See, e.g.,
Commonwealth v. Gambal, 561 A.2d 710, 713 (Pa. 1989). Further, we
would have noted that this claim would not have even raised a substantial
question for our review. See, e.g., Commonwealth v. Fisher, 47 A.3d
155, 159 (Pa. Super. 2012) (“[A] bald allegation that a sentence is excessive
does not by itself raise a substantial question.”). However, in the context of
counsel’s petition to withdraw, we must address Appellant’s contention. See
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Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating
that where counsel files an Anders brief, this Court will review discretionary
aspects of sentencing claims that were otherwise not preserved).
Our standard of review for challenges to discretionary aspects of
sentencing is well settled:
[S]entencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias
or ill will. It is more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa. Super. 2006)
(citation omitted).
Here, Attorney O’Hanlon correctly notes that the trial court imposed a
sentence within the standard range of the sentencing guidelines. A sentence
within the standard range is considered presumptively reasonable. See
Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006). To
succeed on a challenge to a standard range sentence, Appellant must show
that “the case involves circumstances where the application of the guidelines
would be clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). Appellant does
not, and cannot, do so. As counsel notes “Appellant’s crimes were egregious
given his repeated violent and sexual contact with an eight-year old.”
Anders Brief, at 10. We agree. The sentence imposed by the trial court is in
no way excessive under these circumstances. Thus, Appellant’s challenge to
the discretionary aspects of his sentence fails.
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After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2017
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