Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

TREY GUNTER,

Appellant No. 830 WDA 2016 Appeal from the Judgment of Sentence entered February 9, the Court of Common Pleas Erie County,

Criminal Division, at No(s): CP-25-CR-0003499-2014. BEFORE: OLSON and RANSOM, JJ., and STEVENS,* P.J.E., FILED MAY 08, 2017

MEMORANDUM BY RANSOM, J.: Appellant Trey Gunter appeals from the of sentence fifteen forty years of imprisonment, imposed February 9, 2016, after he pleaded guilty third-degree murder.' counsel has filed a this appeal petition withdraw, alleging wholly frivolous, accompanied an Anders brief.2 We grant counsel's withdrawal petition affirm the judgment of sentence.

The trial court summarized the pertinent facts follows:

[Appellant's conviction stems] that from an incident occurred November 2014, at apartment off -campus of ' 18 Pa.C.S. § 2502(c). See Anders California, U.S. 738 (1967).

*Former Justice specially assigned the Superior Court.

Edinboro University. Appellant, Pittsburgh native, was an Edinboro student one semester away from graduating. The victim, Tobiah Johnson, had taken Appellant's gun several days earlier. Appellant obtained another gun, and, as alleged Commonwealth, with help Ryan Andrews and Michael Barron, confronted the victim outside of the victim's apartment. The further alleged Mr. Barron was waiting outside of the victim's apartment, and when victim came out, Mr. Barron punched him his head, knocking him to the ground. Appellant and Mr. Andrews got out of their vehicle and assaulted victim. When victim tried get up, Appellant shot him back, killing him.

Trial Court Opinion, 8/8/16, at 1-2.

Following arrest, the Commonwealth and Appellant's trial counsel reached plea agreement, and Appellant completed written plea colloquy form. The trial court conducted oral colloquy with Appellant at an evidentiary hearing on September 23, 2015, its conclusion, the trial court accepted Appellant's plea as knowing, voluntary intelligent. On February 2016, the trial court sentenced Appellant outlined above. The court denied timely -filed motion modify sentence. This appeal follows. Both Appellant have complied with Pa.R.A.P. 1925.

Within her Anders brief, Appellant's counsel addresses the following Appellant wished to raise appeal: A. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF

DISCRETION IN ACCEPTING [APPELLANT'S] PLEA OF GUILTY WHEN [HE] DID NOT ENTER THE PLEA FREELY, KNOWINGLY AND INTELLIGENTLY?

B. WHETHER [APPELLANT'S] SENTENCE IS MANIFESTLY

EXCESSIVE, CLEARLY UNREASONABLE AND INCONSISTENT WITH THE OBJECTIVE OF THE PENNSYLVANIA SENTENCING CODE?

Appellant's Brief 4.

"When presented with Anders brief, this Court may not review the merits of the underlying without first passing on the request to withdraw." Commonwealth Daniels, 999 A.2d 590, Super. 2010). An Anders brief shall comply with the requirements set forth our Supreme Court in Santiago, 978 A.2d 349 2009);

[W[e hold that the Anders brief that accompanies court -appointed counsel's petition to withdraw, counsel must: (1) provide summary of the procedural history facts, with citations to the record; (2) refer to anything the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that appeal frivolous; (4) state counsel's reasons concluding appeal frivolous. Counsel should articulate relevant facts of record, controlling law, and/or statutes on point have the case led to conclusion appeal frivolous.

Id. at 361.

Counsel seeking to withdraw direct appeal must meet the following obligations or her client:

Counsel also must provide copy of Anders brief his client. Attending the brief must be letter that advises client of right to: (1) retain new counsel pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points appellant deems worthy court[']s attention in addition the points raised by counsel the Anders brief. Oreliana, 86 A.3d 2014) (citations omitted).

Upon review of counsel's petition withdraw, the supporting documentation, her Anders brief, we conclude counsel has satisfied the procedural requirements of Anders/Santiago.

"Once counsel has satisfied the above requirements, it then this Court's duty conduct its own review of the trial court's proceedings and render independent whether appeal is, in fact, wholly frivolous." Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (citation omitted). Finally, "this Court must conduct an independent review of the record to discern if there are any additional, non - frivolous overlooked counsel." Commonwealth v. Flowers, 113 A.3d 1250 (Pa. Super. 2015) (footnote citations omitted).

Appellant first asserts he did enter knowing, voluntary, intelligent guilty plea. He failed to raise issue validity his guilty plea either orally before the or post -sentence motion. Accordingly, this issue waived for purposes appeal. See generally, Pa.R.Crim.P. 720(B); Commonwealth D'Collanfield, 805 A.2d 1244 Super. 2002). Moreover, absent waiver, our review of the record refutes Appellant's assertions he was not informed of the elements third-degree murder or legal and factual basis his guilty plea. See generally, Yeomans, 24 A.3d 1044 Super. 2011).

In second issue, Appellant challenges the discretionary aspects of sentence. As recently observed McLaine, A.3d 70, 2016) (citation omitted), "[a]n appellant

- - entitled to the review of challenges to discretionary aspects of a a matter of right." Instead, to invoke our jurisdiction involving a challenge discretionary aspects a sentence, appellant must satisfy the following four-part test:

(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 903; (2) whether issue was properly preserved at sentencing or a motion reconsider modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); (4) whether there a substantial question the sentence appealed from appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Id.

Because has met the first three requirements, must determine whether he has raised a substantial question. The presence a substantial question determined a case -by -case basis and only exists when appellant advances a colorable argument the sentencing judge's actions were either: (1) inconsistent with specific provision of Sentencing Code; or (2) contrary fundamental norms which underlie the sentencing process. Diehl, 140 A.3d 34, 44-45 (Pa. 2016) (citations omitted).

Although Appellant acknowledges he received standard -range minimum sentence, he essentially argues that court did properly consider the sentencing found at Pa.C.S. § because it imposed lengthy sentence despite presentation of many mitigating factors. An argument failed consider mitigating in favor of a lesser sentence does present a substantial question appropriate for our review. Commonwealth Hanson, 856 A.2d 1254, 1257-58 Super. 2004) (citing McNabb, A.2d Super. 2003)).

Sentencing a matter vested in the sound discretion of the sentencing court, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion, which this context, not shown merely by error in judgment; rather the appellant must establish by reference the record, ignored or misapplied law, exercised its reasons partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Shull, 148 A.3d 2016).

Even if were to find substantial question exist, we would conclude that court adequately explained at sentencing why it chose lengthy sentence despite evidence of mitigation.

As sentencing, the trial court stated:

THE COURT: All right. I have considered the statements I've considered the references of character, the of counsel. record of those attendance. As stated previously, I have thoroughly read Pennsylvania Commission Sentencing Guidelines and I have read pre -sentence investigative report. I have made it part of record. I have spent exhaustive time going through your prior history, [Appellant] through Allegheny Office Children Youth Families. I have also read extensively incorporated your entire sentencing memorandum advocated [trial counsel], I've also considered government's comments balance, including their sentencing memorandum.

So here's what I am left with. I do have to consider the nature of the offense, the gravity, the need public protection, the chances of rehabilitation, several other as outlined by [trial counsel]. Those are all fair. But I do have a lot of discretion here. Let me first start telling you there is no chance you're getting a sentence in the mitigated range. I was perhaps open to idea until I heard further from you. You are committed to living a crime -free life. Somehow, somewhere, you appear to me to be beholden to this whole arena of, I think, gun violence, gun use, and to some extent, drug use. You had opportunity to explain the texts that were attributed to your phone. As a former local and federal prosecutor, and as a Judge now my fourteenth year, there is no question what is going on those messages. And it is at a time that is within three days of this murder.

Also, I've considered your level of remorse. I'm not completely convinced how remorseful you are, because if you were, you would have thought about the consequences only the gun that was stolen from you being hands [the victim] or perhaps others Edinboro perhaps in community, but also the whereabouts a millimeter, the murder weapon, if you will, and where that ended up. And we still don't have accounted for. Those are very concerning elements to me.

N.T., 2/9/16, 104-106.

After imposing costs restitution, declining to impose a fine, court then stated:

I believe a standard range sentence appropriate it will be as follows: There will be minimum sentence of fifteen years maximum of forty years. I will consider any request based upon your conduct in prison whether or not you will be and can be persuaded be released after serving your minimum, but matter of state parole review. You see, [Appellant], you held keys to your you refused turn lock. And I am convinced this least restrictive way to accomplish factors are before me. Id. 106-107.

In arguing an abuse of discretion, Appellant essentially asks this court reweigh the legitimate sentencing presented. This we cannot do. See Griffin, 804 A.2d 1, 9 Super. 2002) (citing Williams, 562 A.2d 1385, 1388 Super. 1989) (en banc) (explaining allegation that the sentencing court did adequately consider various factors is, effect, request this Court substitute its for court fashioning defendant's sentence); see also Commonwealth Fullin, A.2d 849-580 2006) (where the sentencing court had the benefit of pre - investigation report, we can assume was aware of relevant information regarding the defendant's character weighed those considerations along with mitigating statutory factors).

Thus, given the above, we agree with counsel's assessment Appellant wished to raise appeal are frivolous. Moreover, our independent review of the record reveals no other non -frivolous issue. We therefor grant counsel's petition withdraw affirm Appellant's judgment of sentence.3 Given this disposition, deny Appellant's pro se motion remand

without prejudice ability to raise claim of newly -discovered evidence post -conviction proceedings.

Petition withdraw granted. Motion Remand denied. Judgment affirmed. Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 5/8/2017