NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No WDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. TYREE DEMETERIOU ANDERSON, Appellant No WDA 2013 Appeal from the Judgment of Sentence entered August 30, 2013, in the Court of Common Pleas of Erie County, Criminal Division, at No(s): CP-25-CR BEFORE: GANTMAN, P.J., ALLEN, and STABILE, JJ. MEMORANDUM BY ALLEN, J.: FILED APRIL 25, 2014 Tyree Demeteriou Anderson ( Appellant ) appeals from the judgment of sentence entered after he plead guilty to burglary. 1 Appellant s appointed counsel seeks to withdraw, citing Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). We affirm the judgment of sentence and grant counsel s petition to withdraw. The instant case arose from the events of February 22, 2013, when Appellant entered the residence of Heidi Steavens, while she was present. Appellant was subsequently arrested and charged with burglary, criminal mischief (18 Pa.C.S.A 3304(a)(5)), criminal trespass (18 Pa.C.S.A 1 18 Pa.C.S.A. 3502(a)(1).

2 3503(a)(1)(ii)), disorderly conduct (18 Pa.C.S.A 5503(a)(4)), flight to avoid apprehension (18 Pa.C.S.A. 5126), and possession of an instrument of crime (18 Pa.C.S.A. 907(a)). On July 5, 2013, Appellant pled guilty to burglary and the remaining charges were nolle prossed. Following a hearing on August 30, 2013, Appellant was sentenced to 5 to 10 years of imprisonment. On September 4, 2013, Appellant filed a Motion to Withdraw Plea Nunc Pro Tunc which the trial court denied on September 5, This timely appeal followed. The trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On October 11, 2013, Appellant s counsel filed a statement of intention to file an Anders/McClendon brief in lieu of a concise statement. On October 14, 2013, the trial court indicated that it would not file a Pa.R.A.P opinion due to Appellant s counsel s stated intention to file an Anders/McClendon brief. Appellant presents the following issue for our review: 1. WAS THE SENTENCE IN THIS CASE MANIFESTLY EXCESSIVE AND CLEARLY UNREASONABLE, AND NOT INDIVIDUALIZED AS REQUIRED BY LAW? Anders Brief at 1. Preliminarily, we recognize that Appellant s counsel has filed a brief pursuant to Anders and its Pennsylvania counterpart, McClendon. See Anders, 386 U.S. 738; McClendon, 434 A.2d at Where an - 2 -

3 Anders/McClendon brief has been presented, our standard of review requires counsel seeking permission to withdraw pursuant to Anders to: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; (2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a no merit letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or raise any additional points that he deems worthy of the court's attention. Commonwealth v. McBride, 957 A.2d 752, 756 (Pa. Super. 2008). Counsel is required to submit to this Court a copy of any letter used by counsel to advise the appellant of the rights associated with the Anders process. Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007). Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), Appellant s counsel must state the reasons for concluding that the appeal is frivolous in the Anders brief. If these requirements are met, this Court may then review the record to determine whether the appeal is indeed frivolous. In this case, Appellant s counsel filed an appropriate petition seeking leave to withdraw on February 18, Additionally, counsel s correspondence to Appellant states that a copy of the petition and Anders brief were provided to Appellant, and informs Appellant of his rights to retain new counsel and raise additional issues. Finally, Appellant s counsel has - 3 -

4 submitted an Anders brief to this Court, with a copy provided to Appellant. We are satisfied that counsel has adhered to the technical requirements set forth in Anders and McClendon, and proceed to address the substantive issues raised in the Anders brief. Appellant argues that his sentence was manifestly unreasonable under the circumstances, and that the trial court did not give adequate reasons on the record to justify the severity of his sentence. Anders Brief at 5. However, a challenge to the discretionary aspects of a sentence is not appealable as of right. Rather, Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004). Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations omitted)

5 Here, Appellant filed a timely notice of appeal. However, he failed to file any post-sentence motions raising a challenge to the discretionary aspects of his sentence, or present his claim to the sentencing court, and thus did not preserve his discretionary claim for purposes of appeal. [I]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived. Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011). Because Appellant did not preserve his sentencing claims in a post-sentence motion, or present his claim to the trial court during sentencing, his assertion on appeal that the trial court abused its sentencing discretion is waived. Even if Appellant s claim had been preserved, his claim that the trial court abused its sentencing discretion is meritless. At the sentencing hearing, the trial court expressly stated that it had reviewed the presentence investigation ( PSI ) report. N.T., 8/30/1, at 15. When a trial court has the benefit of a PSI report, we presume that it was aware of the relevant information regarding the defendant s character and weighed those considerations along with mitigating statutory factors. Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa. 2007). Additionally, the trial court heard statements from Appellant, his counsel, and the Commonwealth, and was cognizant that Appellant was 20 years old at the time of sentencing, and

6 years old when he committed the crime. Id., at The trial court then explained that it had taken into consideration the sentencing guidelines, the victim impact statements, the circumstances and nature of the crime, Appellant s history, background and family circumstances, and the protection of the community and society. Id. at We may not re-weigh the significance placed on each sentencing factor by the trial court, and find no abuse of discretion in its sentencing determinations here. Commonwealth v. Williams, 69 A.3d 735, 742 (Pa. Super. 2013); Commonwealth v. Minott, 577 A.2d 928, 929 (Pa. Super. 1990) ( The discretion of the sentencing judge must be accorded great weight because he is in the best position to weigh various factors such as the nature of the crime, the defendant's character, and the defendant's displays of remorse, defiance, or indifference. ). Moreover, Appellant s sentence of 5 to 10 years was within the standard range of the sentencing guidelines. Appellant s claim that his sentence was manifestly excessive and did not take into account his youth is belied by the record, and lacks merit. Upon independent review of the record as required by Anders and Santiago, we find no other non-frivolous issues for review. Therefore, we affirm the judgment of sentence and grant counsel s petition to withdraw. Judgment of sentence affirmed. Petition to withdraw granted

7 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/25/