J-S33033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                     v.

JONATHAN RODRIGUEZ-REYES

                           Appellant                   No. 3097 EDA 2013


           Appeal from the Judgment of Sentence of October 7, 2013
                In the Court of Common Pleas of Lehigh County
               Criminal Division at No: CP-39-CR-0004338-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED AUGUST 25, 2014

     Appellant Jonathan Rodriguez-Reyes appeals from the judgment of

sentence entered for his violation of parole (VOP) by the Court of Common

                                                        nsel has filed a petition

to withdraw, alleging that this appeal is wholly frivolous, and filed a brief

pursuant     to   Anders     v.   California,   386   U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).               We affirm

and grant the petition to withdraw.

     The facts underlying this appeal are undisputed. As recounted by the

VOP court:
           On January 17, 2012, [Appellant] received a sentence of
     time-served to twenty-three (23) months on a charge of
     [c]riminal [t]respass [18 Pa.C.S. § 3503(a)(1)(i)]. [Appellant]
     was part of a ruckus at William Allen High School, and when
     police arrived and approached [him], he fled inside the home of
     a stranger. He pushed past the resident of the home with the
     police in pursuit.    He was eventually apprehended after a
     struggle.
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            Eleven (11) months later, he was charged with multiple
     counts of robbery and related offenses. On September 25,
     2013, he was sentenced by the Honorable Maria Dantos on five
     (5) counts of [r]obbery and one (1) count of [a]ggravated
     [a]ssault. The total sentence was not less than ten (10) years
     nor more than twenty (20) years in a state correctional
     institution.
           A parole violation hearing . . . was held before this [c]ourt
     on October 7, 2013. [Appellant] conceded the allegations of the
     parole violation petition and was remanded to serve the balance
     of his sentence in a state correctional institution. Additionally,
     the parole violation was ordered to run consecutively with [the
     sentence imposed for the robbery and aggravated assault
     counts].




     contrary to the certificate of service, was not served on this
     [c]ourt. As a result, this [c]ourt did not have the opportunity to
     review the [m]otion until after being served with the [n]otice of
     [a]ppeal. Having done so, it was denied on November 7, 2013.
            A [n]otice of [a]ppeal was filed on November 6, 2013.
     Pursuant to Pa.R.A.P. 1925(b), this [c]ourt directed [Appellant]
     to file a [c]oncise [s]tatement. [Appellant] did so on November
     22, 2013, wherein it is alleged that the parole violation should
     have been imposed concurrently with the new conviction.

Trial Court Opinion, 11/25/13, at 1-



to serve the parole violation consecutively to his new crimes was not an

                     Id. at 5.

     On appeal, Appellant raises a single argument for our review.
           Whether the lower court erred and abused its discretion
     when, after determining that [Appellant] had violated conditions
     of his parole based upon new convictions, resentenced
     [Appellant] to the balance of his original incarceration and
     ordered that it run consecutive to the new sentences [Appellant]
     was ordered to serve for the new charges.

Anders/Santiago Brief at 7. Differently put, Appellant challenges the VOP




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for criminal trespass consecutively with the sentence imposed for the crimes

he committed while on parole.

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



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

2007) (en banc).    It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

c                Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).



that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that he was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

his Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of



the procedural requirements of Anders.




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                                                         Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court

held:
        [I]n   the   Anders    brief   that    accompanies    court-appointed
        summary of the procedural history and facts, with citations to
        the record; (2) refer to anything in the record that counsel


        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

he has substantially complied with the briefing requirements of Santiago.

Although in providing a summary of the procedural history and facts, he

arguably failed to cite to the record in his brief, we do not consider such

omission grounds for denying the petition to withdraw.              See generally

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



complie[d] with Anders

satisfied the minimum requirements of Anders/Santiago.

        Once   counsel   has   met     his    obligati

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

                                         Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to




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     Preliminarily, we observe:
     Unlike a probation revocation, a parole revocation does not
     involve the imposition of a new sentence. Indeed, there is no
     authority for a parole-revocation court to impose a new penalty.
     Rather, the only option for a court that decides to revoke parole
     is to recommit the defendant to serve the already-imposed,
     original sentence. At some point thereafter, the defendant may
                                                                      -
     revocation hearing                                         are to
     determine whether the parolee violated parole and, if so,
     whether parole remains a viable means of rehabilitating the
     defendant and deterring future antisocial conduct, or whether
     revocation, and thus recommitment, are in order.               The
     Commonwealth must prove the violation by a preponderance of
     the evidence and, once it does so, the decision to revoke parole
                                               In the exercise of that
     discretion, a conviction for a new crime is a legally sufficient
     basis to revoke parole.
     Following parole revocation and recommitment, the proper issue
     on appeal is whether the revocation court erred, as a matter of
     law, in deciding to revoke parole and, therefore, to recommit the
     defendant to confinement. Accordingly, an appeal of a parole
     revocation is not an appeal of the discretionary aspects of
     sentence. As such, a defendant appealing recommitment cannot
     contend, for example, that the sentence is harsh and excessive.
     Such a claim might implicate discretionary sentencing but it is
     improper in a parole-revocation appeal.           Similarly, it is
     inappropriate for a parole-revocation appellant to challenge the
     sentence by arguing that the court failed to consider mitigating
     factors or failed to place reasons for sentence on the record.
     Challenges of those types again implicate the discretionary
     aspects of the underlying sentence, not the legal propriety of
     revoking parole.

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)

(internal citations omitted).     Here, as noted above, Appellant is not



to order him to serve the remainder of his previous sentence consecutively

with the new sentence for robbery and aggravated assault. In this regard,

Appellant contends that the consecutive sentence was unreasonable and

unnecessary.    Anders/Santiago Brief at 11.         Specifically, Appellant



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meaningful punishme

                                                    Id.    He contends the time

added for the remainder of his previous sentence to his sentence for robbery

and aggravated assault was harsh and excessive, because

                                                                Id. at 12.

     It is well-

                              Commonwealth v. Dunphy, 20 A.3d 1215,

1220 (Pa. Super. 2011).        Rather, where an appellant challenges the



considered as a petition for allowance of appeal.           Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).                  As we stated in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
     An    appellant   challenging   the   discretionary   aspects   of   his

     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. [720]; (3) whether

          (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 (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-

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case basis.     See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

       Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his motion to reconsider the sentence, and included

a Pa.R.A.P. 2119(f) statement in his brief.1 Thus, we must determine only if




advances a colorable argument that the senten

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

              Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super.

2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009).        This

Court does not accept bald assertions of sentencing errors.              See

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).



whe

reasons for which the appeal is sought, in contrast to the facts underlying



____________________________________________


1

aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary as



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Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).




Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation

omitted).

      Here, Appellant asserts in his Rule 2119(f) statement
      the [VOP court] erred by giving him a consecutive sentence
      which was not justif[ied] or support[ed] in any basis of law or
      fact. . . . [The VOP court] abused its discretion by imposing the
      sentence consecutive to the sentences imposed from the new
      charges, such that it resulted in having him serving additional
      time in a State Correctional Institute [sic]. . . . The evidence
      regarding the length of the sentence[] imposed in the new cases
      should have been sufficient to properly punish him and that the
      imposing [of] the parole violation consecutive to the new
      sentence[] was unreasonable.

Anders/Santiago brief at 10.

conclude that he has failed to raise a substantial question. Here, Appellant



parole violation, which the VOP court imposed consecutively with his



assault. In addressing the existence of a substantial question, this Court has

remarked:
      A defendant may raise a substantial question where he receives
      consecutive sentences within the guideline ranges if the case
      involves circumstances where the application of the guidelines
      would be clearly unreasonable, resulting in an excessive
      sentence; however, a bald claim of excessiveness due to the
      consecutive nature of a sentence will not raise a substantial
      question.    See [] Moury, 992 A.2d [at] 171-
      imposition of consecutive, rather than concurrent, sentences

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       may raise a substantial question in only the most extreme
       circumstances, such as where the aggregate sentence is unduly
       harsh, considering the nature of the crimes and the length of


Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013)

(emphasis added).        Thus, under Dodge,

                                         nstead of concurrent, sentences does not

raise a substantial question.2

       We have conducted an independent review of the record and



imposed for his parole violation. Based on our conclusions above, we agree

with counsel that the issue Appellant seeks to litigate in this appeal is wholly

frivolous.   Also, we do not discern any non-frivolous issues that Appellant

                                                                               d

affirm the judgment of sentence.

       Judgment of sentence affirmed. Petition to withdraw granted.

       Olson, J., concurs in the result.




____________________________________________


2
  It is well-settled that a trial court has discretion to impose sentences
concurrently or consecutively. See Commonwealth v. Austin, 66 A.3d
798, 808 (Pa. Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




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