J-S33014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUAN BATISTA SORIANO, JR.                  :
                                               :
                       Appellant               :   No. 1511 MDA 2018

       Appeal from the Judgment of Sentence Entered December 15, 2016
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000080-2014


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                         FILED SEPTEMBER 10, 2019

        Juan Batista Soriano, Jr., appeals, nunc pro tunc, from the judgment of

sentence, entered in the Court of Common Pleas of Dauphin County, following

the revocation of his probation. Counsel has filed an Anders/McClendon1

brief and a petition to withdraw.          For the reasons that follow, we affirm

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

        On November 6, 2014, Soriano entered a guilty plea to charges of

burglary,2 conspiracy3 and possession of instruments of crime (“PIC”).4 The

court sentenced him 6 to 23 months’ imprisonment for burglary, with work
____________________________________________


1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).

2   18 Pa.C.S.A. § 3502(a)(2).

3   18 Pa.C.S.A. § 903.

4   18 Pa.C.S.A. § 907(a).
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release eligibility, followed by an aggregate probationary term of three years

on the remaining charges. Soriano filed neither post-sentence motions nor a

direct appeal.

        On December 15, 2016, Soriano was brought before the trial court for

a revocation hearing after he directly and indirectly violated the terms of his

probation.5 The court resentenced him to two to four years’ incarceration for

conspiracy and a consecutive term of one to two years’ incarceration for PIC.

Soriano filed a post-sentence motion seeking credit for time served, which the

court granted. Soriano did not file a direct appeal, but on June 8, 2017, filed

a petition under the Post Conviction Relief Act (“PCRA”).6 Present counsel was

appointed and filed an amended petition seeking reinstatement of Soriano’s

post-sentence and direct appellate rights. Relief was granted by order dated

July 11, 2018.      Soriano filed post-sentence motions, nunc pro tunc, which

were denied. On August 9, 2018, Soriano filed a timely notice of appeal, nunc

pro tunc, followed by a court-ordered concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Soriano challenges

the discretionary aspects of his revocation sentence.
____________________________________________


5 Specifically, the court found that Soriano had: been charged with driving
under the influence in Dauphin County; pled guilty to felony drug and firearm
possession charges in New York state; failed to report to his probation officer
as required; traveled more than 50 miles outside Dauphin County without
prior approval from his probation officer; and failed to pay his fines, costs or
restitution. Soriano does not dispute the underlying factual basis for his
revocation.

6   42 Pa.C.S.A. §§ 9541-9546.


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        Before addressing Soriano’ appellate claim, we must resolve counsel’s

petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc). An attorney seeking to withdraw on appeal must

comply with certain procedural and briefing requirements. 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 [appellant]; and 3) advise the [appellant] that
        he or she has the right to retain private counsel or raise additional
        arguments that the [appellant] deems worthy of the court’s
        attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009), stated that an Anders brief

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.

        Counsel also must provide the appellant with a copy of the Anders brief,

together with a letter that advises the appellant of his or her 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 [C]ourt’s attention in

addition    to   the   points   raised   by    counsel   in   the   Anders   brief.”


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Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citation

omitted).      Substantial compliance with these requirements is sufficient.

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).

         Here, counsel has filed a petition to withdraw as counsel and an Anders

brief.    In her amended petition, counsel states that, after a conscientious

examination of the record, she has determined that the appeal is wholly

frivolous.    Amended Petition to Withdraw, 8/6/19, at ¶ 17.       Additionally,

counsel states in her amended petition that she mailed a copy of the Anders

brief to Soriano, and advised him of his right to retain counsel or proceed pro

se to represent his interest in his appeal or to raise any additional issues for

appellate review. Id. at ¶ 22. Counsel also attached to her amended petition

a letter to Soriano advising him of his right to retain new counsel or proceed

pro se in his appeal and/or raise any additional issues he believed the Court

should consider.7      See Letter from Amanda A. Batz, Esquire, to Soriano,

8/6/19, at 2. Finally, counsel’s brief sets out one issue of arguable merit and,

pursuant to the dictates of Santiago, explains why counsel believes the

appeal to be frivolous. Accordingly, counsel has substantially complied with

the requirements of Anders and Santiago. We now turn to our independent

review of the record and the claim raised by Soriano.

         Soriano asserts that the trial court failed to consider the mitigating

evidence he presented at his revocation hearing and sentenced him to an

____________________________________________


7   Soriano has not filed a response to counsel’s Anders brief.

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unreasonable term of incarceration. Anders Brief, at 12. Specifically, Soriano

claims that he demonstrated remorse for his actions, noted that he had a

daughter and fiancée in New York, and had made “some attempts” to make

payments towards his costs, fines and restitution.      Id. at 13.   Soriano is

entitled to no relief.

      Soriano’s sole appellate claim implicates the discretionary aspects of his

sentence. Such a challenge is not appealable as of right. Rather, an appellant

must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.

Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).

      Before 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. . . . [I]f the appeal satisfies each of these four
      requirements, we will then proceed to decide the substantive
      merits of the case.

Id. at 1042-43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.

Super. 2013); see also Commonwealth v. Kalichak, 943 A.2d 285, 289

(Pa. Super. 2008) (“[W]hen a court revokes probation and imposes a new

sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a post-sentence motion.”).

      Here, Soriano preserved his claim in a motion for reconsideration of

sentence and filed a timely notice of appeal nunc pro tunc. Although counsel


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has not included the requisite Pa.R.A.P. 2119(f) statement in her Anders

brief, “[w]here counsel files an Anders brief, this Court has reviewed the

matter even absent a separate Pa.R.A.P. 2119(f) statement. Hence, we do

not consider counsel’s failure to submit a Rule 2119(f) statement as precluding

review of whether Appellant’s issue is frivolous.” Commonwealth v. Zeigler,

112 A.3d 656, 661 (Pa. Super. 2015) (citations omitted).

      Upon revoking probation, a sentencing court may choose from any of

the sentencing options that existed at the time of the original sentencing,

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that the defendant has

been convicted of another crime, his conduct indicates it is likely he will

commit another crime if he is not imprisoned, or such a sentence is essential

to vindicate the authority of the court. 42 Pa.C.S.A. § 9771(c). Section 9721,

which governs sentencing generally, provides that 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. Additionally,

the reasons stated for a sentence imposed should reflect the sentencing

court’s consideration of the criteria of the Sentencing Code, the circumstances

of the offense, and the character of the offender.        Commonwealth v.

DeLuca, 418 A.2d 669, 670 (Pa. Super. 1980). Finally,

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      [s]entencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant 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.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citation

omitted).

      Upon review of the sentencing transcript and the record in this matter,

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

sentencing Soriano to an aggregate term of three to six years’ incarceration

upon revocation of his probation.   As Soriano had been convicted of another

crime, a term of total incarceration was authorized under section 9771(c).

The court heard and considered defense counsel’s arguments, as well as

Soriano’s own statement of contrition. Nevertheless, the court concluded that

Soriano’s “failure to refrain from committing additional serious crimes

render[s] him a danger to society and evidence[s] a need for rehabilitation.”

Trial Court Opinion, 10/3/18, at 4. At resentencing, the court appropriately

detailed on the record its reasons for sentencing Soriano as it did, stating as

follows:

      THE COURT : Well, I don’t hear a lot of good things here. And
      it’s very clear to me that you were before us—you were before
      Judge Dowling in November of 2014 and you were convicted of a
      burglary and criminal conspiracy and possession of instruments of
      crime.

      And then in January of 2016 you pleaded guilty before me for DUI.
      And I direct that 5141 be closed.

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     But not only did you violate technically several provisions—and
     I'm going to repeat them for the record so that someone’s not
     confused about why you are being revoked—you committed DUI,
     you did not refrain from overt behavior the DUI and new arrest to
     which you’ve already pleaded guilty which are felony drug and
     firearms charges, you haven’t paid your fines, costs, and
     restitution. You owe almost $5,000 on that. You didn’t have
     approval to be in New York. And you were found in possession of
     a loaded firearm.

     All those matters tell me that you need serious rehabilitation and
     that the society is in great danger with you.

N.T. Resentencing, 12/15/16, at 5-6.

     In short, Soriano’s dissatisfaction with his sentence does not equate to

a viable excessiveness claim.   The trial court acted within its discretion in

sentencing Soriano, and he is entitled to no relief. Antidormi, supra.

     Judgment of sentence affirmed.        Petition to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/2019




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