J-S68011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 VICTORIA MATTHEWS                        :
                                          :
                    Appellant             :   No. 1906 WDA 2017

        Appeal from the Judgment of Sentence November 14, 2017
   In the Court of Common Pleas of Jefferson County Criminal Division at
                     No(s): CP-33-CR-0000251-2013


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

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

      Appellant, Victoria Matthews, appeals from the judgment of sentence

entered following the revocation of her probation. Appellate 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.    We grant counsel’s petition for leave to

withdraw and affirm the judgment of sentence.

      On March 11, 2013, Appellant participated in a high-speed chase that

resulted in her damaging vehicles being driven by other civilians as well as

vehicles being driven by two state police troopers. Affidavit of Probable Cause,

3/11/13, at 1. The Commonwealth filed an information on June 25, 2013,

which charged Appellant with thirty-four criminal counts in relation to the


____________________________________
* Former Justice specially assigned to the Superior Court.
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incident. On September 18, 2013, Appellant pled guilty to one count of fleeing

or attempting to elude an officer, four counts each of simple assault, and

recklessly endangering another person (“REAP”), and three counts of criminal

mischief.1

        On October 16, 2013, for the conviction of fleeing or attempting to elude

an officer, the trial court sentenced Appellant to serve a term of restrictive

intermediate punishment for seven years, plus seven days in the Jefferson

County Jail, and one hundred eighty-three (183) days on electronic

monitoring.     On the first of the simple assault convictions, Appellant was

sentenced to two years of probation consecutive to the sentence for fleeing or

attempting to elude an officer.          On the second simple assault conviction

Appellant was sentenced to one year of probation consecutive to the first

simple assault conviction.        On each of the two remaining simple assault

convictions, Appellant was sentenced to one year of probation to be served

concurrent with the first simple assault conviction.       On each of the three

convictions of criminal mischief, the trial court sentenced Appellant to serve

terms of probation of one year, concurrent with the first simple assault

conviction.

        On July 26, 2017, the trial court issued a detainer based upon probation

violations, specifically, the filing of criminal charges for retail theft and



____________________________________________


1   18 Pa.C.S. §§ 3733(a), 2701(a)(3), 2705, and 3304(a)(5), respectively.

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receiving stolen property in Clearfield County. On November 14, 2017, the

trial court conducted a Gagnon II hearing, revoked Appellant’s probation,

and sentenced her to serve a term of incarceration of three years and seven

months to ten years and two months. On November 22, 2017, Appellant filed

a motion for reconsideration of sentence, which the trial court denied on

November 27, 2017. This timely appeal followed. Both Appellant and the trial

court have complied with Pa.R.A.P. 1925.

      As noted, counsel has filed a petition to withdraw from representation.

Before we address any questions raised on appeal, we must resolve appellate

counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030

(Pa. Super. 2013) (en banc). There are procedural and briefing requirements

imposed upon an attorney who seeks to withdraw on direct 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, those directives have been satisfied. Within the petition to

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

record and pertinent legal research. Following that review, counsel concluded

that the present appeal is frivolous. Counsel sent Appellant a copy of the


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Anders brief and petition to withdraw, as well as a letter, a copy of which is

attached to the petition to withdraw. In the letter, counsel advised Appellant

that she could represent herself or that she could retain private counsel.

Appellant has not filed any additional documents with this Court.

      We now examine whether the Anders 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago.      The brief sets forth the

procedural history of this case, outlines pertinent case authority, and

discusses counsel’s conclusion that the appeal is frivolous. We thus conclude

that the procedural and briefing requirements for withdrawal have been met.

      Counsel has identified the following issue that Appellant believes entitles

her to relief:

      I. Whether the Trial Court committed an abuse of discretion when
      it revoked Appellant’s probation/parole and re-sentenced her to
      serve sentences aggregating to a minimum of three (3) years and
      seven (7) months to a maximum of ten (10) years and two (2)
      months in a state correctional institution given the circumstances
      of the case.

Anders Brief at 4.

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      Appellant’s issue challenges the discretionary aspects of the sentence

imposed following the revocation of her probation.        In an appeal from a

sentence imposed after the court has revoked probation, we can review “the

validity of the revocation proceedings, the legality of the sentence imposed

following revocation, and any challenge to the discretionary aspects of the

sentence imposed.”     Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.

Super. 2015).

      We are also mindful that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Martin, 727 A.2d 1136, 1143

(Pa. Super. 1999). 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):

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

             [W]e 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).



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

2006)).

      Whether a particular issue constitutes a substantial question about the

appropriateness of sentence is a question to be evaluated on a case-by-case

basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

As to what constitutes a substantial question, this Court does not accept bald

assertions of sentencing errors.      Commonwealth v. Malovich, 903 A.2d

1247, 1252 (Pa. Super. 2006). In order to establish a substantial question,

the appellant must show actions by the trial court inconsistent with the

Sentencing Code or contrary to the fundamental norms underlying the

sentencing process. Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa.

Super. 2006).

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

Appellant brought an appropriate appeal, raised the challenge in a post-

sentence motion, and she included in her appellate brief the necessary concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the probation revocation court.

      In her Rule 2119(f) statement, Appellant argues that the trial court

abused    its   discretion   in   imposing   a   sentence   that   was   manifestly

unreasonable. Anders Brief at 7. Appellant contends that the sentence was


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excessive, constituted too severe a punishment, and the reasons set forth by

the trial court did not justify the severity of the sentence. Id.

      We have held that “[i]n asserting that the trial court imposed a sentence

unreasonably disproportionate to her crimes and unduly excessive, [an

appellant] has provided plausible arguments that her sentence is contrary to

the   fundamental    norms     which    underlie   the   sentencing    process.”

Commonwealth v. Williams, 69 A.3d 735, 740 (Pa. Super. 2013) (quotation

marks omitted). Thus, we conclude that Appellant has presented a substantial

question for our review.     Accordingly, because Appellant has presented a

substantial question, we will consider her discretionary aspects of sentencing

challenges on appeal.

      As we have long held, 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.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). “In order

to establish that the sentencing court abused its discretion, [an a]ppellant

‘must establish, by reference to the record, that the sentencing court ignored

or misapplied the law, exercised its judgment for reasons of partiality,

prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.’”

Williams, 69 A.3d at 741 (quoting Commonwealth v. Rodda, 723 A.2d 212,

214 (Pa. Super. 1999) (en banc)).




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      Indeed, the sentencing judge has broad discretion in determining the

proper penalty, and this Court accords the sentencing court great deference,

as it is the sentencing court that is in the best position to view the defendant’s

character, displays of remorse, defiance, or indifference, and the overall effect

and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (quotations and citations omitted). When imposing a sentence of total

confinement after a probation revocation, the sentencing court is to consider

the factors set forth in 42 Pa.C.S. §§ 9771(c) and 9721(b). Commonwealth

v. Ferguson, 893 A.2d 735 (Pa. Super. 2006). Pursuant to Section 9771(c),

a court may sentence a defendant to total confinement after a revocation of

probation if one of the following conditions exists:

      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 this
      court.

42 Pa.C.S. § 9771(c).     Under Section 9721(b), the sentencing court must

consider “the protection of the public, the gravity of the offense as it relates

to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b).

      As we have stated, “a court is required to consider the particular

circumstances    of the   offense   and the    character    of the   defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,


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the court should refer to the defendant’s prior criminal record, his age,

personal characteristics and his potential for rehabilitation.” Id. In addition,

“[o]ur Supreme Court has determined that where the trial court is informed

by a pre-sentence report, it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has   been    so   informed,     its     discretion   should   not   be    disturbed.”

Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citing

Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)).

      Our review of the record reflects that, at the time of Appellant’s

sentencing, the trial court had received and reviewed a presentence report.

N.T., 11/14/17, at 2-3.        Further, the trial court heard argument from

Appellant’s   counsel,   which         included   exceptions   to    the   sentencing

recommendation contained in the presentence report. Id. at 2-4. The trial

court then heard Appellant’s allocution. Id. at 4-6.

      In addition, at the time it imposed the judgment of sentence, the trial

court offered the following comments, thereby revealing that it had considered

the need for a sentence of incarceration in order to vindicate the authority of

the court, the protection of the public, the gravity of the offense, and

appellant’s rehabilitative needs:

            I recall reading Trooper Burkett’s report and Trooper Snyder
      and some of the other individuals. There was a lot of restitution
      imposed, but I – I believe the idea was that you were going to get
      help for your issues and not have these type of problems; and
      now you committed two felony offenses while you were on
      probation. So I do believe that, that the recommendation for a

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      state sentence is appropriate.        I further believe that the
      recommendation was made at one charge and appropriate for
      that, the felony charge of fleeing and eluding, but I don’t think it’s
      appropriate that we continue with all of the county probations as
      county probation has not served your well. But I do think even
      though, yea, if they had been brand new retail thefts, they would
      have been summaries, but they are two felonies 3 summaries.
      They were done while you were on probation.

                                      ***

      So your total sentence would be no less than three years and
      seven months, credit for time you served, to no more than ten
      years and two months. . . . That is – the sentence is given
      because of the new charges and to vindicate the authority of the
      [c]ourt because we can’t have a situation where you committed
      two new felonies and were cut a break.

N.T., 11/14/17, at 7-8.

      The trial court further elaborated its reasoning for imposition of the

specific sentence upon Appellant in its written opinion, as follows:

            [Appellant] contends that her sentence was manifestly
      unreasonable in that it constituted “too severe of a punishment
      under the circumstances of the original crimes and the
      probation/parole violations.” In light of the statements she and
      her attorney made at her Gagnon II hearing, the [c]ourt can only
      assume that she thinks she deserved a more lenient sentence
      because of the fact that she had a clean record from 1988 until
      2011 and because the Retail Theft convictions underlying the
      instant revocation would have been summary offenses but for
      multiple Retail Theft convictions dating back to the 1970’s and
      ’80’s. (See Transcript, 11/14/2017, pp. 3-5). That leniency,
      conferred in the form of probation for eleven misdemeanor pleas
      and Restrictive Intermediate Punishment for the felony, was
      shown to her initially, however, and did not address the problem.
      Yet the offenses to which she pled guilty stemmed from events
      that easily could have resulted in death or serious bodily injury.

           Because of the nature of the original charges, therefore, it
      was of little consequence that [Appellant’s] new convictions,
      though graded as felonies, were low-value Retail Thefts. What

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      mattered was that her decision to commit a new crime while on
      probation for fleeing from the police and endangering the lives and
      welfare of multiple individuals demonstrated both an
      unwillingness to refrain from further criminal conduct and a failure
      to appreciate and take advantage of the mercy shown to her on
      October 16, 2013. As the [c]ourt said at the time it imposed the
      revocation sentence, county probation did not achieve the
      sentencing objectives in [Appellant’s past], and shorter jail
      sentences in the past proved likewise ineffective to rehabilitate
      her. (See id. at 6-8). Accordingly, a longer sentence was
      warranted and, pursuant to [42 Pa.C.S.] § 9771, was legislatively
      authorized.

           In any event, the record reflects that the [c]ourt stated its
      reasons for the sentence it imposed and that the sentence was
      not manifestly unreasonable under the circumstances.

Trial Court Opinion, 5/8/18, at 1-2.

      We conclude that the reasons the trial judge offered for the sentence

imposed were more than sufficient to support the sentence.           Moreover,

because the trial court had been fully informed and relied upon the

presentence report, it is our determination that the trial court did not abuse

its discretion in fashioning Appellant’s sentence.    Accordingly, Appellant’s

claims that the trial court failed to provide adequate reasons for fashioning

the instance sentence, and the allegation that he sentence was manifestly

excessive, lacks merit.

      Finally, we have independently reviewed the record in order to

determine whether there are any non-frivolous issues present in this case that

Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.

Super. 2014).   Having concluded that there are no meritorious issues, we




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grant Appellant’s counsel permission to withdraw, and we affirm the judgment

of sentence.

     Petition of counsel to withdraw is granted.     Judgment of sentence

affirmed.

     Judge Dubow joins the Memorandum.

     P.J.E. Stevens concurs in the result.




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