J-S18042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

LISA TOLLERSON

                            Appellant                     No. 2225 EDA 2014


             Appeal from the Judgment of Sentence June 27, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0206971-2006


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                                   FILED JUNE 26, 2015

        Appellant, Lisa Tollerson, appeals from the June 27, 2014 judgment of

sentence of two and one-half to five years’ imprisonment imposed following

the revocation of her probation.               Contemporaneous with this appeal,

Appellant’s counsel has filed a petition to withdraw and an Anders Brief,

which states his conclusion that the appeal is wholly frivolous.1 After careful

review, we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

        We summarize the relevant procedural background of this case as

follows. On August 28, 2006, Appellant pled guilty to robbery and criminal


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1
    Anders v. California, 386 U.S. 738 (1967).
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conspiracy2 at docket number CP-CR-0206971-2006 and received a sentence

of six to 23 months’ house arrest, followed by three years’ probation.

Thereafter, on October 23, 2006, the trial court found Appellant had violated

the conditions of her sentence, vacated her sentence of house arrest,

revoked her probation, and resentenced her to a term of two years of

reporting probation.       Appellant appeared before the trial court again on

December 31, 2009 for violating the terms of her sentence, at which time

the trial court revoked her probation and resentenced Appellant to a term of

two years’ probation.

        On July 6, 2011, Appellant pled guilty to identify theft3 at docket

number CP-CR-0004559-2011, and the trial court sentenced her to six

months’ probation.        At that time, Appellant acknowledged that pleading

guilty to the offense violated her probation at docket number CP-CR-

0206971-2006. N.T., 7/6/11, at 6. The trial court then imposed a sentence

of 11 and ½ to 23 months’ imprisonment, followed by four years’ probation

for Appellant’s violation of probation to run concurrent with the sentence

imposed for identity theft. Id. at 43.




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2
    18 Pa.C.S.A. §§ 3701(a)(1)(i) and 903(a)(1), respectively.
3
    18 Pa.C.S.A. § 4120(a).



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        On January 24, 2014, Appellant was found guilty of simple assault and

possession of an instrument of crime4 at docket number CP-51-CR-0010025-

2013, and a violation of probation hearing was scheduled for June 27, 2014.

At the hearing, the trial court determined Appellant violated her probation on

her    sentence    at   docket    number       CP-CR-0206971-2006,   revoked   her

probation, and resentenced her to two and one-half to five years’

imprisonment. Trial Court Order, 6/27/14.5 On July 1, 2014, Appellant filed

a motion to reconsider her sentence, and the trial court denied said motion

on July 24, 2014.        On July 28, 2014, Appellant filed a timely notice of

appeal.6

        In his Anders Brief, counsel has raised the following issues for our

review.

              1. Was there sufficient evidence to support the
              finding that [A]ppellant was in violation of her
              probation?

              2. Was [Appellant] a good candidate for continued
              probation?

              3. Was [Appellant’s] sentence legal?

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4
    18 Pa.C.S.A. §§ 2701(a) and 907(a), respectively.
5
   Specifically, the trial court resentenced Appellant to two and one-half to
five years’ imprisonment for her robbery conviction. The trial court imposed
no further penalty on her conviction for criminal conspiracy.
6
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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Anders Brief at 3.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

                     [W]e hold that in 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 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

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

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Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation omitted). “Once counsel has satisfied

the above requirements, it is then this Court’s duty to conduct its own

review of the trial court’s proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

      In the instant matter, we conclude that counsel’s Anders brief

complies with the requirements of Santiago. First, counsel has provided a

procedural and factual summary of the case with references to the record.

Second, counsel advances relevant portions of the record that arguably

support Appellant’s claims on appeal. Third, counsel concluded “this appeal

[is] wholly frivolous.” Anders Brief at 15. Lastly, counsel has complied with

the requirements set forth in Millisock. As a result, we proceed to conduct

an independent review to ascertain if the appeal is indeed wholly frivolous.

      The first issue counsel raises on Appellant’s behalf is the sufficiency of

the evidence to support the finding that Appellant violated the terms of her

probation.    Anders Brief at 10.       Our standard of review over such

proceedings is well established.   “Revocation of a probation sentence is a

matter committed to the sound discretion of the trial court and that court’s

decision will not be disturbed on appeal in the absence of an error of law or

an abuse of discretion.” Commonwealth v. Colon, 102 A.3d 1033, 1041

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(citation omitted), appeal denied, 109 A.3d 678 (Pa. 2015). “The burden of

proof for establishing a violation of probation is a preponderance of the

evidence, lesser than the burden in a criminal trial of proof beyond a

reasonable doubt.” Id. at 1042 (citation omitted).

      Instantly, we conclude this issue is without merit.     The trial court

explained its finding as follows.

                   Here, Appellant was serving her July 6, 2011
             sentence of eleven and one-half to twenty-three
             months[’] incarceration, followed by four years[’]
             probation when she was convicted on new charges of
             simple assault and possession of an instrument of
             crime. Therefore, the [trial] court properly found
             that Appellant had directly violated the terms of her
             probation.

Trial Court Opinion, 9/12/14, at 4.     Moreover, at the hearing, Appellant

acknowledged that such violation occurred. In advocating for a lesser

sentence, Appellant’s counsel addressed the trial court and conceded the

violation as follows.   “I mean, there’s no issue here.   We know she’s in

direct violation.” N.T., 6/27/14, at 14 (emphasis added). Appellant also

addressed the trial court and acknowledged her conviction, which prompted

the revocation proceedings.

             I do accept responsibility for what I did. I accepted
             it.  I accept it fully.    One hundred percent.     I
             accepted it when I got sentenced [for simple assault
             and possession of an instrument of crime].          I
             accepted it before that. I said that I was the one in
             the wrong on the assault case. I said that. I really
             said that. I wanted to say I was working on things.

Id. at 21.

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       Accordingly, we conclude there was sufficient evidence that Appellant

violated the terms of her probation, and we agree with counsel that this

issue is wholly frivolous.

       The second issue raised on Appellant’s behalf involves the trial court’s

imposition of a sentence of imprisonment. Anders Brief at 12. Specifically,

counsel advances the following question for our review. “Was [Appellant] a

good candidate for continued probation?”         Id.   Accordingly, this question

implicates the discretionary aspect of Appellant’s sentence.7

              It is well settled that, with regard to the
              discretionary aspects of sentencing, there is no
              automatic right to appeal. [Therefore, b]efore 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. [I]f the appeal satisfies
              each of these four requirements, we will then
              proceed to decide the substantive merits of the case.


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7
  See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)
(en banc) (concluding, “review of a discretionary sentencing matter after
revocation proceedings is encompassed by the scope of this Court’s review).



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Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      We conclude Appellant has not met the technical requirements

necessary for this Court to engage in substantive review of her claim.

Appellant has satisfied the first and second requirements by filing a motion

for reconsideration of sentence and a timely notice of appeal.      However,

absent from the Anders Brief is “a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence” as required by Rule 2119(f).           Pa.R.A.P. 2119(f); see also

Edwards, supra.      Accordingly, Appellant has not properly petitioned this

Court to review the discretionary aspect of her sentence, and we are unable

to proceed with a determination of whether such claim would raise a

substantial question. See Edwards, supra at 330.

      Lastly, we are asked to evaluate whether Appellant’s sentence was

legal. Anders Brief at 13. “Our standard of review is limited to determining

the … authority of the sentencing court to consider the same sentencing

alternatives that it had at the time of initial sentencing.” Edwards, supra

at 327.

      The trial court observed that its sentence was within the statutory

limits in its Rule 1925(a) opinion as follows.

                  Here,    Appellant   was    serving   probation
            following her conviction on the charge of robbery and
            conspiracy. Appellant was originally sentenced to a
            period of six to twenty-three months[’] incarceration

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            followed by three years[’] probation.          Upon her
            fourth revocation and third direct violation, this court
            sentenced Appellant to a period of incarceration of
            two and one-half to five years, well below the
            statutory maximum that could have been imposed
            by [the trial court] at Appellant’s original sentencing.

Trial Court Opinion, 9/12/14, at 5.      We agree with the trial court that

Appellant’s sentence is legal.

      In this case, Appellant’s conviction for robbery was graded as second-

degree felony. Sentencing Order, 8/28/06. Therefore, the maximum term

of imprisonment for which she could be legally sentenced on that offense

was ten years. See 18 Pa.C.S.A. § 1103(2) (“In the case of a felony of the

second degree, for a term which shall be fixed by the court at no more than

ten years[]”). Accordingly, Appellant’s sentence of two and one-half to five

years’ imprisonment is legal.

      Based on the foregoing, we conclude Appellant is not entitled to relief,

as all of her issues are wholly frivolous.   As such, we affirm the June 27,

2014 judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015

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