J-S23004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                                 OF
                                                            PENNSYLVANIA
                             Appellee

                        v.

    ASHLEY ROSE VEGA,

                             Appellant                    No. 204 WDA 2018


       Appeal from the Judgment of Sentence Entered December 8, 2017
               In the Court of Common Pleas of Jefferson County
                           Criminal Division at No(s):
                           CP-33-CR-0000084-2016
                           CP-33-CR-0000086-2016
                           CP-33-CR-0000281-2016
                           CP-33-CR-0000282-2016
                           CP-33-CR-0000525-2015
                           CP-33-CR-0000526-2015

BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JUNE 12, 2019/

        Appellant, Ashley Rose Vega, appeals from the judgment of sentence of

an aggregate term of 6 to 17 years’ imprisonment, imposed after the court

revoked her probation based on a new conviction in an unrelated case.

Counsel seeks permission to withdraw from further representation pursuant

to Anders v. California, 386 A.2d 738 (Pa. 1967). Upon review, we find that

counsel’s     Anders      brief    satisfies   the   requirements    set   forth   in

Commonwealth v. Santiago, 97 A.2d 349 (Pa. 2009).                   Accordingly, we

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


*   Retired Senior Judge assigned to the Superior Court.
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        We glean the following relevant facts and procedural history from the

record. On March 2, 2016, in the Court of Common Pleas of Jefferson County,

Appellant entered a guilty plea to one count of possession with intent to deliver

a controlled substance1 at CP-33-CR-525-2015, one count of delivery of a

controlled substance2 at CP-33-CR-526-2015, one count of possession of drug

paraphernalia3 at CP-33-CR-084-2016, and one count of using drug-free

urine4 at CP-33-CR-086-2016. On that same date, Appellant was sentenced

to an aggregate term of 9 months to 2 years less 1 day of incarceration,

followed by 3 years’ probation.

        On July 20, 2016, Appellant entered a guilty plea to one count of delivery

of a controlled substance5 at CP-33-CR-281-2016 and CP-33-CR-282-2016.

On that same date, Appellant was sentenced to an aggregate term of 3 years’

probation to run concurrently with the sentence imposed at CP-33-CR-525-

2015.

        On February 15, 2017, after Appellant admitted to technical violations

of using a controlled substance, the trial court revoked all of Appellant’s

sentences and re-sentenced her to: (a) 5 years’ drug and alcohol restrictive

intermediate punishment and 6 months’ house arrest at CP-33-CR-525-2015;
____________________________________________


1   35 P.S. § 780-113(a)(30).
2   35 P.S. § 780-113(a)(30).
3   35 P.S. § 780-113(a)(32).
4   18 Pa.C.S. § 7509(b).
5   35 P.S. § 780-113(a)(30).

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(b) 5 years’ probation at CP-33-CR-526-2015 (to run consecutive to the

sentence imposed at CP-33-CR-525-2015); and (c) an aggregate of 5 years’

probation at CP-33-CR-084-2016, CP-33-CR-086-2016, CP-33-CR-281-2016,

and CP-33-CR-282-2016 (to run concurrent with the sentence imposed at CP-

33-CR-526-2015).

       On July 5, 2017, after again admitting to technical violations of using a

controlled substance at each of the foregoing docket numbers, the trial court

ordered Appellant to be committed to the Department of Corrections for an

evaluation to determine if Appellant qualified for the State Intermediate

Punishment (“SIP”) Program.            After receiving a determination from the

Department of Corrections that Appellant was not suitable for the SIP

Program, the trial court entered an order on December 8, 2017, sentencing

Appellant to an aggregate term of 6 to 17 years’ incarceration with a

consecutive 1-year term of probation.

       On December 21, 2017, the trial court denied Appellant’s pro se motion

for reconsideration, but granted her request for counsel.       On January 25,

2018, counsel for Appellant filed a motion for reconsideration nunc pro tunc.

On that same date, the trial court granted counsel’s request to file the motion

nunc pro tunc, but denied the request for reconsideration. On February 2,

2018, Appellant filed a timely appeal.6 Appellant now presents the following

____________________________________________


6We recognize that our Supreme Court recently held that “the proper practice
under Rule 341(a) is to file separate appeals from an order that resolves issues



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issue for our review, via counsel’s Anders brief: “Whether the [t]rial [c]ourt

committed      an    abuse      of   discretion   when   it   revoked   Appellant’s

probation/parole and re-sentenced her to serve sentences aggregating to a

minimum of … six (6) years [and] to a maximum of [seventeen] (17) years in

a state correctional institution given the circumstances of the case[?]”

Anders Brief at 4.

       “When faced with a purported Anders brief, this Court may not review

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

withdraw.” Commonwealth v. Rojas, 875 A.2d 638, 639 (Pa. Super. 2005)

(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.

1997)).

       Court-appointed counsel who seeks to withdraw from representing
       an appellant on direct appeal on the basis that the appeal is
       frivolous 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) file a brief referring to anything that arguably might
          support the appeal but which does not resemble a “no-
          merit” letter to amicus curiae brief; and (3) furnish a copy
          of the brief to the [appellant] and advise the [appellant] of
          his or her right to retain new counsel or raise any additional
          points that he or she deems worthy of the court’s attention.


____________________________________________


arising on more than one docket. The failure to do so requires the appellate
court to quash the appeal.” Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018).     The Court tempered its holding, however, by making it
prospective only. The Walker opinion was filed on June 1, 2018; hence, this
holding is not applicable in the instant matter, as Appellant filed her notice of
appeal on February 2, 2018.

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      Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998)
      (citation omitted).

Rojas, 874 A.2d at 639.       Appellant’s counsel has complied with these

requirements.   Counsel petitioned for leave to withdraw, and filed a brief

satisfying the requirements of Anders, as discussed, infra.      Counsel also

provided a copy of the brief to Appellant, and submitted proof that he advised

Appellant of her right to retain new counsel, proceed pro se, and/or to raise

new points not addressed in the Anders brief.

      Our Supreme Court has held, in addition, that counsel must explain the

reasons underlying his assessment of Appellant’s case and his conclusion that

the claims are frivolous.    Thus, counsel’s Anders brief must satisfy the

following criteria before we may consider the merits of the underlying appeal:

      [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.

Santiago, 978 A.2d at 361.

      Upon review of the Anders brief submitted by Appellant’s counsel, we

find it complies with the technical requirements of Santiago.        Counsel’s

Anders brief (1) provides a summary of the procedural history and facts of

this case; (2) directs our attention, when applicable, to the portions of the

record that ostensibly support Appellant’s claim of error; (3) concludes that


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Appellant’s claim is frivolous; and (4) does so by citation to the record and

appropriate/applicable legal authorities.   Thus, we now examine whether

Appellant’s claim is, indeed, frivolous. We also must “conduct a simple review

of the record to ascertain if there appears on its face to be arguably

meritorious issues that counsel, intentionally or not, missed or misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 277 (Pa. Super. 2018) (en

banc).

     Appellant’s allegations relate to the discretionary aspects of her

sentence.

     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. 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
         [the] 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. 720; (3) whether [the]
         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.[] § 9781(b).

     Objections to the discretionary aspects of a sentence are generally
     waived if they are not raised at the sentencing hearing or in a
     motion to modify the sentence imposed.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and internal quotations omitted).

     Here, the record reflects that Appellant filed a timely notice of appeal,

properly preserved her claim in her post-sentence motion, and counsel has


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included a Rule 2119(f) statement in his Anders brief in compliance with

Pennsylvania Rules of Appellate Procedure.7 Thus, we proceed to determine

whether Appellant has raised a substantial question to meet the fourth

requirement of the four-part test outlined above.

       As we explained in Moury:

       The determination of what constitutes a substantial question must
       be evaluated on a case-by-case basis. A substantial question
       exists only when the appellant advances a colorable argument
       that the sentencing judge’s actions were either: (1) inconsistent
       with a specific provision of the Sentencing Code; or (2) contrary
       to the fundamental norms which underlie the sentencing process.

Id. at 170 (citations and internal quotations omitted).

       Appellant maintains in her Rule 2119(f) statement that her revocation

sentence is manifestly unreasonable “in that it was excessive and constituted

too severe of a punishment under the circumstances of the case[] and the

probation violation….” Appellant’s Brief at 10. Appellant further avers that

the reasons given by the trial court for the sentence do not justify the severity

of the sentence. Id. Based on the arguments presented in Appellant’s Rule

2119(f) statement, and the case law on which she relies, we conclude that

she   has    presented      a   substantial    question   for   our   review.   See

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

from a revocation proceeding, we find a substantial question is presented


____________________________________________


7 We recognize that where counsel files an Anders brief, we may review the
issue even absent a Rule 2119(f) statement. See Commonwealth v.
Ziegler, 112 A.3d 656, 661 (Pa. Super. 2015).

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when a sentence of total confinement, in excess of the original sentence, is

imposed as a result of a technical violation of parole or probation.”).

      Accordingly, we will review the merits of Appellant’s claim, mindful of

the following standard of review:

      Sentencing is a matter vested within the discretion of the trial
      court and will not be disturbed absent a manifest abuse of
      discretion. An abuse of discretion requires the trial court to have
      acted with manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support so as to be clearly
      erroneous. It is also now accepted that in an appeal following the
      revocation of probation, it is within our scope of review to consider
      challenges to both the legality of the final sentence and the
      discretionary aspects of an appellant’s sentence.

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)

(citations omitted). Moreover, when we consider an appeal from a sentence

imposed following the revocation of probation,

      [o]ur review is limited to determining the validity of the probation
      revocation proceedings and the authority of the sentencing court
      to consider the same sentencing alternatives that it had at the
      time of the initial sentencing. 42 Pa.C.S. § 9771(b). Also, upon
      sentencing following a revocation of probation, the trial court is
      limited only by the maximum sentence that it could have imposed
      originally at the time of the probationary sentence.

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)

(internal citation omitted).

      The reason for the trial court’s broad discretion in sentencing and the

deferential standard of appellate review is that “the sentencing court is in the

best position to measure various factors and determine the proper penalty for

a particular offense based upon an evaluation of the individual circumstances



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before it.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (internal

citation and quotation marks omitted). Our Supreme Court has recognized

that the sentencing court’s “institutional advantage” is, perhaps, even “more

pronounced in fashioning a sentence following the revocation of probation,

which is qualitatively different than an initial sentencing proceeding.”

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).

      At initial sentencing, all of the rules and procedures designed to
      inform the court and to cabin its discretionary sentencing
      authority properly are involved and play a crucial role. However,
      it is a different matter when a defendant reappears before the
      court for sentencing proceedings following a violation of the mercy
      bestowed upon him in the form of a probationary sentence. For
      example, in such a case, contrary to when an initial sentence is
      imposed, the Sentencing Guidelines do not apply, and the
      revocation court is not cabined by Section 9721(b)’s requirement
      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 on
      the community, and the rehabilitative needs of the defendant.”
      42 Pa.C.S. § 9721. See Commonwealth v. Reaves, … 923 A.2d
      1119, 1129 ([Pa.] 2007) (citing 204 Pa.Code. § 303.1(b)
      (Sentencing Guidelines do not apply to sentences imposed as
      result of revocation of probation)).

Id.

      Here, Appellant contends that an aggregate term of 6 to 17 years’

incarceration was not warranted. Appellant’s Brief at 12. Appellant states

that all of her convictions and technical violations were drug-related and that

they were merely consequences of her addiction. She argues, therefore, that

her sentence was too harsh. Id. at 12-13.




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      Having   carefully   reviewed the    record of Appellant’s      sentencing

proceeding, we ascertain no abuse of discretion by the court. Initially, we

stress that the court had the benefit of a pre-sentence investigation report

and reviewed that report prior to the sentencing proceeding. N.T. Sentencing,

12/8/17, at 6.     Additionally, the trial court indicated that it took into

consideration relevant factors, such as Appellant’s age, background, and prior

record, as well as the determination that Appellant was not eligible for the SIP

Program. Id.

      The trial court summarized its reasoning in support of Appellant’s post-

revocation sentence in its Rule 1925(a) opinion, in which it so aptly opined:

             Each of [the] subject docket numbers pertains to a drug-
      related conviction, four for felony counts of delivery of a controlled
      substance and two for misdemeanor drug-related offenses. In
      each instance, the record suggests [Appellant] was not selling
      drugs just to earn money; like so many in her position, she was
      selling to support her addiction.

            As the record reflects, the charges pending in the first two
      cases did nothing to curb [Appellant’s] drug use. On the contrary,
      within weeks of signing her conditions to be released on bail,
      [Appellant] once tested positive for and twice admitted [to] using
      heroin. Because of that, the court revoked her bail, after which
      she remained incarcerated for the next nine months, at which
      point she was released on parole.

             Four months after being paroled, [Appellant] again admitted
      to using heroin. She also admitted to using cocaine and was
      charged with technical violations because of it. The court’s
      solution in that instance was to revoke her split sentence and re-
      sentence her to the county’s Drug & Alcohol Restrictive
      Intermediate Punishment Program, which included a stint at an
      inpatient rehab facility, followed first by further treatment at a
      halfway house, intensive outpatient treatment, and non-intensive
      outpatient treatment. That was on February 15, 2017. The allure
      of drugs was too strong, though, and [Appellant] did not even

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      make it through her scheduled stay at the halfway house.
      Instead[,] she was back in front of the court on July 5, 2017[,]
      because of her inability to stay away from drugs, and it was then
      that the court ordered an SIP evaluation. The Department of
      Corrections concluded, however, that [Appellant’s] “mental health
      stability” made her inappropriate for the program.

            With SIP no longer an option, the most reasonable
      alternative, in the court’s estimation, was to impose a significantly
      longer term of confinement than that to which [Appellant] had
      previously been subject[ed], together with a recommendation
      that she be afforded the opportunity to engage with the
      therapeutic community and hopefully learn to control her addictive
      impulses. Nine months of forced sobriety at the county jail had
      not accomplished that, … nor had inpatient rehab and the
      structure of a halfway house. What [Appellant] needed—for her
      own good as well as [for] that of the community—was a long-
      term, treatment-oriented disposition in a restrictive environment.
      Lesser options had already proven to be ineffective.

              With credit for time served, and accounting for the lapse
      between when she was sentenced and [when she] will have the
      benefit of appellate review, [Appellant] will remain incarcerated
      for four more years before becoming eligible for parole, and once
      the parole board determines she is a suitable candidate, she will
      still remain accountable to a state agent long enough to make sure
      the therapeutic community achieved its purpose and did not
      merely give [Appellant] an alternative environment in which to
      bide her time until she could again gain access to drugs.

            What the record indicates, therefore, is that the court did
      not render an arbitrary or uninformed sentencing decision in this
      case. It was well aware of [Appellant’s] criminal history and her
      struggle with addiction, and it had the benefit of a pre-sentence
      investigation report to further guide it in fully considering her
      background and the other factors relevant to sentencing. Guided
      by those considerations, it deliberately and expressly rejected
      other alternatives and imposed a sentence it thought was best
      suited to address [Appellant’s] particular rehabilitative needs and
      [to] protect society from her drug-seeking activities in the
      process.

Trial Court Opinion, 10/31/18, at 1-3 (unnecessary capitalization and citations

to record omitted).


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      In response to Appellant’s assertion that the court’s reasoning for the

post-revocation sentence imposed on her fails to justify the severity of the

punishment, we note that:

      [F]ollowing revocation, a sentencing court need not undertake a
      lengthy discourse for its reasons for imposing a sentence or
      specifically reference the statutes in question. Simply put, since
      the defendant has previously appeared before the sentencing
      court, the stated reasons for a revocation sentence need not be
      as elaborate as that which is required at initial sentencing. The
      rationale for this is obvious. When sentencing is a consequence
      of the revocation of probation, the trial judge is already fully
      informed as to the facts and circumstances of both the crime and
      the nature of the defendant….

Pasture, 107 A.3d at 28. The Pasture Court further emphasized that “a trial

court does not necessarily abuse its discretion in imposing a seemingly

harsher post-revocation sentence where the defendant received a lenient

sentence and then failed to adhere to the conditions imposed on him.” Id.

Based on our review of the record, we are satisfied with the justification

provided for the sentence imposed on Appellant post-revocation, and we

discern no abuse of discretion by the trial court.

      Finally, our review of the record reveals no other potential, non-frivolous

issues which Appellant could raise on appeal. As such, we agree with counsel

that a direct appeal in this case is wholly frivolous. Accordingly, we grant

counsel’s motion to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2019




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