J-S70015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :    IN THE SUPERIOR COURT OF
                                                  :          PENNSYLVANIA
                      Appellee                    :
                                                  :
               v.                                 :
                                                  :
    SHAWN MILLER                                  :
                                                  :
                      Appellant                   :            No. 882 MDA 2017

              Appeal from the Judgment of Sentence May 4, 2017
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000120-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED NOVEMBER 28, 2017

        Appellant, Shawn Miller, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas, following revocation

of his probation. We affirm and grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows.

On     May   18,    2015,     Appellant        pled   guilty    to   illegal   dumping   of

methamphetamine waste at docket number CP-40-CR-0000120-2015; and

on September 30, 2015, Appellant pled guilty to theft by unlawful taking at

docket number CP-40-CR-0000840-2015.1                   The court sentenced Appellant

on December 9, 2015, to fifteen (15) to thirty (30) months’ imprisonment

plus two (2) years’ probation at docket number 120-2015, to run
____________________________________________


1   18 Pa.C.S.A. §§ 3313(a), 3921(a), respectively.
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concurrently with a sentence of eight (8) to sixteen (16) months’

imprisonment plus twelve (12) months’ probation at docket number 840-

2015.

        The court held a revocation of probation hearing on May 4, 2017. At

the hearing, Appellant admitted he had violated his probation at both

dockets by possessing drug paraphernalia. The court resentenced Appellant

to two (2) to four (4) years’ imprisonment at docket number 120-2015, and

one (1) year of probation at docket number 840-2015. On May 12, 2017,

Appellant filed a pro se motion for reconsideration and a pro se notice of

appeal; and Appellant’s counsel also filed a motion for reconsideration. The

court denied Appellant’s counseled motion for reconsideration on May 15,

2017, and counsel timely filed a notice of appeal on Appellant’s behalf that

same day. On May 26, 2017, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant timely complied.     This Court dismissed Appellant’s pro se

notice of appeal as duplicative on June 22, 2017. Counsel filed a motion to

withdraw and an Anders brief on August 28, 2017.

        As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009).     Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough


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review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.              Substantial compliance

with these requirements is sufficient.             Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.”    Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[2] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *
____________________________________________


2   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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         Under Anders, the right to counsel is vindicated by
         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that
         arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [I]n 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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a conscientious review of the record and

concluded the appeal is wholly frivolous.    Counsel also supplied Appellant

with a copy of the withdrawal petition, the brief, and a letter explaining

Appellant’s right to proceed pro se or with new privately-retained counsel to

raise any additional points Appellant deems worthy of this Court’s attention.

In his Anders brief, counsel provides a summary of the facts and procedural

history of the case. Counsel refers to facts in the record that might arguably

support the issue raised on appeal and offers citations to relevant law. The

brief also provides counsel’s reasons for concluding that the appeal is

frivolous. Thus, counsel has substantially complied with the requirements of

Anders and Santiago.

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       Appellant has filed neither a pro se brief nor a counseled brief with

new privately-retained counsel; we will review the issue raised in the

Anders brief:

          WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
          SENTENCING APPELLANT.

(Anders Brief at 5).

       When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)

(en banc) (explaining that, notwithstanding prior decisions which stated our

scope of review in revocation proceedings is limited to validity of

proceedings and legality of sentence, appellate review of revocation

sentence can also include discretionary sentencing challenges).

       Appellant argues the court failed to consider as mitigating factors his

drug addiction and the fact that he turned himself in to the authorities.

Appellant complains the court abused its discretion when it resentenced

Appellant following revocation of probation. As presented, Appellant’s issue

challenges the discretionary aspects of his sentence.3 See Commonwealth

v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (explaining claim that sentence is
____________________________________________


3Appellant preserved this claim in his motion for reconsideration of sentence
and counsel included a statement pursuant to Pa.R.A.P. 2119(f) in his
Anders brief.



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manifestly    excessive   challenges   discretionary   aspects   of   sentencing);

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating allegation court ignored

mitigating factors challenges discretionary aspects of sentencing).

        When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). This Court must evaluate what constitutes a substantial

question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825

(Pa.Super. 2007).    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.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000).

        A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

a substantial question exists “only where the appellant’s Rule 2119(f)


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statement sufficiently articulates the manner in which the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process….”        Id.   See, e.g., Cartrette, supra (indicating claim that

revocation court ignored appropriate sentencing factors raises substantial

question).    An allegation that the sentencing court failed to consider a

specific mitigating factor, however, does not necessarily raise a substantial

question.     Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001)

(holding claim that sentencing court ignored appellant’s rehabilitative needs

failed to raise substantial question).

      In    the    context   of   probation   revocation   and   resentencing,   the

Sentencing Code provides, in pertinent part:

           § 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.

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


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            (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.A. § 9771(a)-(c).   “The reason for revocation of probation need

not necessarily be the commission of or conviction for subsequent criminal

conduct.   Rather, this Court has repeatedly acknowledged the very broad

standard that sentencing courts must use in determining whether probation

has been violated.”     Commonwealth v. Colon, 102 A.3d 1033, 1041

(Pa.Super. 2014), appeal denied, 631 Pa. 710, 109 A.3d 678 (2015).

      “[T]he revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court’s decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

discretion.” Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super.

2006).     See also Commonwealth v. Hoover, 909 A.2d 321, 322

(Pa.Super. 2006).     Following the revocation of probation, the court may

impose a sentence of total confinement if any of the following conditions

exist: the defendant has been convicted of another crime; the conduct of the

defendant 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


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court. See 42 Pa.C.S.A. § 9771(c). The Sentencing Guidelines do not apply

to sentences imposed following a revocation of probation. Commonwealth

v. Ferguson, 893 A.2d 735, 739 (Pa.Super. 2006), appeal denied, 588 Pa.

788, 906 A.2d 1196 (2006). The record as a whole can be used to evaluate

the sentencing court’s consideration of the facts of the case and the

defendant’s character.   Commonwealth v. Crump, 995 A.2d 1280, 1283

(Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010).        See

also Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013)

(explaining where revocation court presided over defendant’s no contest plea

hearing and original sentencing, as well as his probation revocation hearing

and sentencing, court had sufficient information to evaluate circumstances of

offense and character of defendant when sentencing following revocation).

      Instantly, Appellant’s complaint that the sentencing court did not

adequately consider specific mitigating factors (his history of drug abuse and

that he turned himself in to the authorities) and his bald claim of sentence

excessiveness arguably do not raise substantial questions meriting review.

See Mouzon, supra. Nevertheless, we observe the court initially sentenced

Appellant on December 9, 2015, to an aggregate sentence of fifteen to thirty

months’ incarceration plus two years’ probation for both docket numbers.

Appellant violated his probation by possessing drug paraphernalia, which he

admitted at the revocation hearing on May 4, 2017. When the court revoked

Appellant’s probation, defense counsel asked the court to consider a


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sentence lower than a state sentence. The court rejected defense counsel’s

request, explaining parole and probation had not worked for Appellant,

considering his criminal record of eighteen prior revocations and twenty-one

guilty pleas. The court indicated it had given Appellant a chance to reform

that Appellant simply did not take. The court resentenced Appellant to two

(2) to four (4) years’ imprisonment at docket number 120-2015, and one (1)

year of probation at docket number 840-2015. The judge who presided over

Appellant’s probation revocation hearing was the same jurist who had

presided over Appellant’s initial bench trial and sentencing, so the court had

sufficient information to evaluate the circumstances of Appellant’s case as

well as his character. See Carrillo-Diaz, supra. The record confirms the

court imposed a sentence of total confinement consistent with Section

9771(c).   See 42 Pa.C.S.A. § 9771(c).              See also Commonwealth v.

Malovich, 903 A.2d 1247 (Pa.Super. 2006) (holding record evidenced that

court imposed sentence of total confinement following revocation of

appellant’s probation to vindicate court’s authority, where appellant had not

complied with previous judicial efforts such as drug court, had not “been

putting anything into” court-imposed rehabilitation efforts, and it was

important for appellant to appreciate seriousness of his actions; record as

whole   reflected    court’s   reasons     for    sentencing    as    well   as   court’s

consideration   of   circumstances       of   appellant’s      case   and    character);

Commonwealth v. Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (holding


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appellant’s continued drug use as well as his resistance to treatment and

supervision, was sufficient for court to determine appellant would likely

commit another crime if not incarcerated); Commonwealth v. Aldinger,

436 A.2d 1196 (1981) (explaining sentence of total confinement was proper

where record reflected appellant had violated probation by using drugs;

court considered circumstances giving rise to revocation proceeding and

appellant’s character).

      Moreover, in its opinion, the trial court correctly analyzed and

discussed Appellant’s issue as follows:

         At the resentencing hearing, a colloquy was conducted and
         the Pre–Sentence Investigation (PSI) was discussed. The
         Commonwealth argued that [Appellant] should be
         sentenced to a state sentence. The Commonwealth further
         asserted that [Appellant] has an extensive record and
         anything less than state sentence would be less than he
         already had received in the first instance.

         [Appellant’s counsel] contends that [Appellant] had turned
         himself in and is taking full responsibility for both of the
         revocations by admitting to them. [Appellant’s counsel]
         further asserted that [Appellant] has taken responsibility
         for his actions and this change in his attitude and behavior
         is important and should be considered.

         The record further establishes the following sentencing
         factors that were reviewed and considered:

            THE COURT:        Your Pre-Sentence Investigation is
            just filled with treatment option after treatment
            option, IPP, parole, inpatient, outpatient, DRC and
            the majority of these do involve drug use. There’s
            no doubt, you’re fortunate you’re still alive because
            the majority of these involved crimes that involve
            drugs.     ...   My fear is that the Pre-Sentence
            investigation from [two years] ago...has very serious

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              charges. Driving while you’re drunk, heroin needles
              in the car, high speed chases with the police, risking
              catastrophe by covering yourself in gasoline, in an
              apartment when the police come in and find you.
              It’s frightening when we read so many residences
              that you broke into...people’s homes you broke into.
              You’ve had so many treatments throughout the
              course of this. You’ve had revocations of parole.
              You violated [your] parole when you got arrested
              and tested positive for valium, for methadone. You
              were arrested for driving with false ID, and having
              four syringes, a spoon and heroin. The list goes on
              and on and for the majority of these, you’re on
              parole or probation while it’s still happening. You
              have to get serious about it, sir, because you’re
              living on borrowed time because this is your whole
              life...page after page.

           Here, the Sentencing Court has clearly and expressly
           complied with the requirements of 42 Pa.C.S. § 9721(b) by
           imposing a sentence 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. The record
           demonstrates a complete review of [Appellant’s] past, the
           crimes committed and the impact on society.

           Accordingly, no meritorious issues for appeal exist with
           regard to [Appellant’s] alleged [errors] complained of on
           appeal.

(Trial Court Opinion, filed June 23, 2017, at 5-6) (internal citations omitted).

Following our independent review of the record, we conclude the appeal is

wholly frivolous. See Palm, supra. Accordingly, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




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