J-S04005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DESTINY DENISE DAVIS                       :
                                               :
                       Appellant               :   No. 734 MDA 2018

              Appeal from the Judgment of Sentence April 5, 2018
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001060-2016,
                           CP-41-CR-0001665-2014


BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 21, 2019

       Destiny Denise Davis (“Appellant”) appeals from the judgment of

sentence entered on April 5, 2018, following a revocation of probation hearing.

Additionally, Appellant’s counsel has filed a petition seeking to withdraw his

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which

govern a withdrawal from representation on direct appeal. Appellant has not

filed a response to counsel’s petition.1 After careful review, we grant counsel’s

petition to withdraw and affirm Appellant’s judgment of sentence.




____________________________________________


1 We note with disapproval that the Commonwealth has not filed an appellee’s
brief.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      The trial court summarized the history of this case in its opinion to this

Court, filed pursuant to Pa.R.A.P. 1925(a). Trial Court Opinion, 8/6/18, at 1–

4. For purposes of our review, the following history is relevant:

             On January 18, 2018, [Appellant] was again before the court
      for a probation violation hearing. The court found that [Appellant]
      violated the conditions of her probation by substantially failing to
      comply with the requirements of the Re-entry Services Program;
      continuing to smoke marijuana while she was pregnant, despite
      numerous warnings; and by failing to comply with the directives of
      the adult probation officers when she was being taken into custody.
      [Appellant] acted out and became aggressive, threatening, and
      confrontational. The court was inclined to impose a state sentence
      at that time, but delayed sentencing to obtain additional
      information, including a 60-day diagnostic evaluation, a pre-
      sentence investigation (PSI) report with her entire supervision
      history, and a report from the Lycoming County Prison regarding
      her behaviors and any medical issues.

             On March 29, 2018, the court revoked [Appellant’s]
      probation and resentenced [Appellant] to an aggregate sentence
      of three years’ probation, which consisted of one year for identity
      theft and one year for criminal mischief under case 1060-2016 and
      one year for simple assault under case 1665-2014. The court
      noted that it was prepared to impose a state sentence[,] but the
      court gave [Appellant] another chance due to her young age,
      dysfunctional history, and she appeared to be doing better in light
      of the most recent interventions.1 However, the court warned
      [Appellant] that she would be “on a short leash.” If she chose to
      smoke marijuana, not attend the Re-entry Services Program, not
      attend West Branch, mental health or any other treatments, or not
      do her community service, she was “choosing” to go to state
      prison.
            1 [Appellant] did not have any misconducts while she
            was at the state correctional institution for her
            diagnostic evaluation[,] and she was taking her
            medications for anxiety and depression.

            Unfortunately, [Appellant] chose not to heed the court’s
      warning. Within an hour of [Appellant’s return] to the Lycoming
      County Prison on March 29, 2018, she was involved in an incident
      with her cellmate. The next day she received a “write-up” for

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       attempting to have contact with a male inmate in another cell block
       in violation of the prison rules. She was also not taking her
       prescribed medications as directed.

              On April 5, 2018, [Appellant] was brought before the court
       for another probation violation hearing.       The court found
       [Appellant] violated the conditions of her probation and imposed
       an aggregate sentence of 1 ½ to 5 years’ incarceration in a state
       correctional institution, consisting of 6 months to 3 years for
       identify theft, a consecutive 6 months to 1 year for criminal
       mischief, and a consecutive 6 months to 1 year for simple assault.

              On April 30, 2018, [Appellant] filed a notice of appeal.[2]

Id. at 2–4. Appellant and the trial court complied with Pa.R.A.P. 1925.

       Counsel presents the following questions on Appellant’s behalf:

       I.    Was the evidence presented at the Probation Revocation
       Hearing sufficient to establish a particular “special condition” of
       probation supervision?

       II.   Did the trial court abuse its discretion when imposing an
       aggregate resentence of 1 ½ years to 5 years [of] incarceration in
       a State Correctional Institution?

Anders Brief at 6.3

       Before we address the questions raised on appeal, we must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

____________________________________________


2   We note that Appellant filed a single notice of appeal, which included both
Lycoming County Common Pleas Court docket numbers 1060-2016 and 1665-
2014. On June 1, 2018, our Supreme Court held that, prospectively, “when
a single order resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed. The failure to do so will result in
quashal of the appeal.” Commonwealth v. Walker, 185 A.3d 969, 977 (Pa.
2018). Because Appellant’s consolidated notice of appeal in this matter was
filed prior to our Supreme Court’s June 1, 2018 decision in Walker, we need
not quash.

3   A third issue concerns counsel’s request to withdraw. Anders Brief at 6.

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A.3d 1030, 1032 (Pa. Super. 2013) (en banc).          There are procedural and

briefing requirements imposed upon an attorney who seeks to withdraw on

appeal. The procedural mandates are that counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that he
      or she has the right to retain private counsel or raise additional
      arguments that the defendant deems worthy of the court’s
      attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted a conscientious review of the

record and concluded that the present appeal is wholly frivolous. Counsel sent

Appellant a copy of the Anders brief and the petition to withdraw, as well as

a letter, a copy of which is attached to the brief. In the letter, counsel advised

Appellant that she could represent herself or that she could retain private

counsel to represent her.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide 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.


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Santiago, 978 A.2d at 361; Cartrette, 83 A.3d at 1032.

      Counsel’s brief is compliant with Santiago. It sets forth the factual and

procedural history of this case, outlines pertinent case authority, cites to the

record, and refers to issues of arguable merit. Anders Brief at 7–17. Further,

the brief sets forth counsel’s conclusion that the appeal is frivolous and the

reasons for counsel’s conclusion. Id. at 18–19. Satisfied that counsel has met

the technical requirements of Anders and Santiago, “we now have the

responsibility to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016)

(citation and internal quotation marks omitted).

      The first issue challenges the trial court’s finding that Appellant violated

her probation and, therefore, would be resentenced. Anders Brief at 12. The

Sentencing Code permits a court to revoke an order of probation under the

following circumstances:

      § 9771. Modification or revocation of order of probation

      (a) General rule.—The court may at any time terminate
      continued supervision or lessen or increase the conditions upon
      which an order of probation has been imposed.

      (b) Revocation.—The court may revoke an order of probation
      upon proof of the violation of specified conditions of the probation.
      Upon revocation the sentencing alternatives available to the court
      shall be the same as were available at the time of initial
      sentencing, due consideration being given to the time spent
      serving the order of probation.




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      (c) Limitation on sentence of total confinement.—The court
      shall not impose a sentence of total confinement upon revocation
      unless it finds that:

         (1) the defendant has been convicted of another crime; or

         (2) the conduct of the defendant indicates that it is likely
         that he will commit another crime if he is not imprisoned;
         or

         (3) such a sentence is essential to vindicate the authority of
         the court.

42 Pa.C.S. § 9771(a)–(c).     Whether the probationer, in fact, violated the

conditions of his probation must be demonstrated by evidence of probative

value. Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super. 2001).

      The Commonwealth bears a lesser burden of proof at a probation

revocation hearing than it does in a criminal trial.      Commonwealth v.

Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009). “The Commonwealth

establishes a probation violation meriting revocation when it shows, by a

preponderance of the evidence, that the probationer’s conduct violated the

terms and conditions of his probation, and that probation has proven an

ineffective rehabilitation tool incapable of deterring probationer from future

antisocial conduct.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.

Super. 2007). “[A]n implied condition of any sentence of probation is that the

defendant will not commit a further offense.” Commonwealth v. Infante,

888 A.2d 783, 790 (Pa. 2005).

      Here, contrary to Appellant’s assertion, the trial court identified three

specified conditions that Appellant violated:


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           [Appellant] also complains that the court never stated what
     specific condition of probation [Appellant] violated. The court is
     not aware of any requirement that the court list any or every
     condition that [Appellant] violated. Nevertheless, [Appellant’s]
     conduct violated Rule 9, Special Condition 3 and Special Condition
     5. [Appellant] signed those conditions on October 7, 2016.

            Rule 9 states: “I will refrain from any assaultive behavior
     which threatens or present[s] a clear and present danger to self
     or others.” [Appellant] was involved in an altercation/spitting
     incident with her cellmate almost immediately after she was
     returned to the Lycoming County Prison following her probation
     violation hearing on March 29, 2018. The court specifically stated
     in its Order dated April 5, 2018, that [Appellant] “violated the
     conditions of her probation by engaging in behavior at the prison
     that not only evidence[d] a complete disrespect for the authority
     of the correctional officers, but also jeopardized the safety of the
     institution.”

             Special Condition 3 required [Appellant] to “receive a mental
     health evaluation as directed by the probation/parole office and
     successfully complete any recommended treatment.” Special
     Condition 5 required [Appellant] to “comply with all special
     conditions imposed by the court, above and beyond these rules.”
     SCI Muncy conducted a mental health evaluation as part of the
     diagnostic evaluation that the court requested before the March
     29, 2018, probation violation hearing.         As a result of that
     evaluation, [Appellant] was prescribed medications for anxiety
     and depression. Throughout the court’s orders, the court required
     [Appellant] to receive mental health evaluations and comply with
     any treatment recommendations. In the order dated March 29,
     2018, which was dictated in [Appellant’s] presence, the court
     specifically warned [Appellant] that if she chose not to comply with
     her mental health or other treatments, she was choosing to go to
     state prison. Despite the warning, [Appellant] chose not [to] take
     her prescribed medications as directed after she returned to the
     Lycoming County Prison from SCI Muncy, particularly during the
     first four days of April.

Trial Court Opinion, 8/6/18, at 7–9. Moreover, the trial court explained:

             Sometimes the individuals in the criminal justice system are
     a little like Humpty Dumpty; they are cracked or broken due to
     substance abuse issues, mental health issues, and/or the trials
     and tribulations of traumatic events in their lives. The court sends

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      out “all the king’s horses and all the king’s men” by providing
      various programs and services that the county has to offer to try
      to help these individuals repair the damage these issues have
      caused in their lives. Unfortunately, there are times when even
      the best efforts are not enough, and other avenues, such as state
      prison, must be attempted. The court did not want to send this
      young mother to state prison. The court attempted to rehabilitate
      her through numerous probationary sentences. Despite all the
      efforts of the court, the adult probation officers, individuals at the
      Re-entry Services Program, and other service providers, such
      could not be accomplished at the county level. Finally, enough
      was enough. The court specifically stated in the Order dated April
      5, 2018:

                  This sentence is necessary to vindicate the
            authority of the court, to prevent [Appellant] from
            continuing with the conduct that she has exhibited
            which will hopefully prevent her from committing
            further criminal behaviors, and to appropriately
            address [Appellant’s] failure to address these issues
            which continue to cauase her to recidivate. That the
            court has tried on a county basis has not worked. The
            court’s leniency has not worked. This court giving
            [Appellant] other opportunities has not worked. This
            court can accept some of the blame, and perhaps
            should have sentenced [Appellant] to state prison long
            ago.

      The court sincerely hopes that a state prison sentence will be able
      to rehabilitate [Appellant] and help her address her various issues.
      [Appellant] showed improvement while she was at SCI Muncy for
      her diagnostic evaluation. The court had hoped that such
      improvement would continue following her return to the county.
      It did not, but perhaps it will return now that she is back at SCI
      Muncy.

Id. at 9–10.

      Our review of the record confirms that revocation of Appellant’s

probation was necessary because Appellant violated specified conditions of

her probation, her conduct indicates it is likely she will commit another offense

if she is not imprisoned, and to vindicate the authority of the court. 42 Pa.C.S.

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§ 9771(c)(1–3); N.T., 4/5/18, at 41. Contrary to the trial court’s warning in

open court and in the April 5, 2018 order, Appellant engaged in assaultive

behavior, failed to take her mental health medications, violated prison rules,

and disrespected the authority of the court. N.T., 4/5/18, at 6–25, 36–39.

Thus, the Commonwealth showed, “by a preponderance of the evidence, that

[Appellant’s] conduct violated the terms and conditions of [her] probation,

and that probation has proven an ineffective rehabilitation tool incapable of

deterring probationer from future antisocial conduct.” Perreault, 930 A.2d

at 558. Thus, we discern no abuse of the trial court’s discretion in finding that

Appellant violated her probation.

       The second issue presented challenges the discretionary aspects of

Appellant’s sentence.4       Anders Brief at 16.          We note that “[t]he right to

appellate review of the discretionary aspects of a sentence is not absolute.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather,

where an appellant challenges the discretionary aspects of a sentence, the

appeal    should     be   considered      a    petition   for   allowance   of   appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

       As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):


____________________________________________


4 In Cartrette, 83 A.3d at 1034, this Court held that our “scope of review in
an appeal from a revocation sentencing includes discretionary sentencing
challenges.” Thus, there is no impediment to our review.


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      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

             We 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. [708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)).

      Pa.R.Crim.P. 708 provides that a motion to modify sentence must be

filed within ten days of the imposition of sentence following the revocation of

probation. Pa.R.Crim.P. 708(D). As the comment to Rule 708 explains:

      [i]ssues properly preserved at the sentencing proceeding need not,
      but may, be raised again in a motion to modify sentence in order
      to preserve them for appeal. In deciding whether to move to
      modify sentence, counsel must carefully consider whether the
      record created at the sentencing proceeding is adequate for
      appellate review of the issues, or the issues may be waived.

Pa.R.Crim.P. 708 cmt.     Thus, objections to the discretionary aspects of a

sentence are waived if they are not raised at the sentencing hearing or in a

motion to modify the sentence imposed.        Moury, 992 A.2d at 170 (citing

Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)); see also

Cartrette, 83 A.3d 1042 (“[I]ssues challenging the discretionary aspects of a

sentence following the revocation of probation must be raised in a post-

sentence motion or by presenting the claim to the trial court during the




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sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”).

       Herein, two of the first three requirements of the four-part test are met:

Appellant brought a timely appeal and included in her appellate brief the

necessary separate concise statement of the reasons relied upon for allowance

of appeal pursuant to Pa.R.A.P. 2119(f).           Anders Brief at 10.   However,

Appellant did not preserve this issue at the resentencing proceeding or by

filing a post-sentence motion. Thus, it is waived. Moury, 992 A.2d at 170;

Cartrette, 83 A.3d 1042.

       Even if we were to determine that Appellant’s claim were not waived,

we would find no merit to the underlying allegation.

             The imposition of sentence following the revocation of
       probation is vested within the sound discretion of the trial court,
       which, absent an abuse of that discretion, will not be disturbed on
       appeal. An abuse of discretion is more than an error in judgment—
       a sentencing court has not abused its discretion unless the record
       discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283–1284 (Pa. Super. 2012).

       While parts of [Section 9721(b) of the Pennsylvania Sentencing
       Code5] do not govern revocation proceedings, as our sentencing
       guidelines are not required to be consulted in such instances, see
       204 Pa.Code. § 303.1(b), other provisions of that section do apply.
       For example, the sentencing court must “follow the general
       principle that the sentence imposed should call for confinement
       that is consistent with the protection of the public, the gravity of
       the offense as it relates to the impact on the life of the victim and
____________________________________________


5   42 Pa.C.S. §§ 9701–9799.75.



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      on the community, and the rehabilitative needs of the defendant.”
      42 Pa.C.S. § 9721(b). In addition, in all cases where the court
      “resentences an offender following revocation of probation. . ., the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.” Id. Failure to comply with these
      provisions “shall be grounds for vacating the sentence or
      resentence and resentencing the defendant.” Id.

Cartrette, 83 A.3d at 1040–1041. Following the revocation of probation, the

trial court need not undertake a lengthy discourse for its reasons for imposing

a sentence of total confinement, but the record as a whole must reflect the

court’s consideration of the facts of the crime and character of the offender.

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).

      In this case, our review of the record indicates that Appellant has failed

to establish that the trial court ignored or misapplied the law, exercised his

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision. Simmons, 56 A.3d at 1283–1284. Thus,

we would conclude that the trial court did not abuse its discretion in sentencing

Appellant. Moreover, we would affirm the trial court’s decision based on its

well-reasoned opinion. Trial Court Opinion, 8/6/18, at 4–10.

      Finally, we have independently reviewed the record in order to

determine if counsel’s assessment about the frivolous nature of the present

appeal is correct.   Tukhi, 149 A.3d at 886; see also Commonwealth v.

Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) (after determining that

counsel has satisfied the technical requirements of Anders and Santiago,

this Court must conduct an independent review of the record to determine if


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there are additional, non-frivolous issues overlooked by counsel). After review

of the issues raised by counsel and our independent review of the record, we

conclude that an appeal in this matter is frivolous.    Accordingly, we grant

counsel’s petition to withdraw and affirm the judgment of sentence.

      Petition to withdraw as counsel granted.         Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/21/2019




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