J-S14037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
JASON FLETCHER,                             :
                                            :
                    Appellant               :           No. 2388 EDA 2014

         Appeal from the Judgment of Sentence entered on July 8, 2014
              in the Court of Common Pleas of Delaware County,
                 Criminal Division, No. CP-23-CR-0004320-2011

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED MARCH 30, 2015

        Jason Fletcher (“Fletcher”) appeals from the judgment of sentence

imposed for his conviction of retail theft,1 following the revocation of his

parole/probation. Counsel for Fletcher has filed a Petition to Withdraw from

representation, and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

grant counsel’s Petition to Withdraw and affirm Fletcher’s judgment of

sentence.

        In November 2011, Fletcher pled guilty to retail theft, as a first-degree

misdemeanor.       The trial court sentenced Fletcher to a term of probation.

Fletcher subsequently failed to comply with the terms of his probation.

Specifically, Fletcher (a) failed to comply with a requirement for community



1
    18 Pa.C.S.A. § 3929.
J-S14037-15


service; (b) failed to report to          his probation officer for   scheduled

appointments; and (c) tested positive for drug use.         After a Gagnon I

hearing,2 the trial court found Fletcher in violation of his probation.

Following the Gagnon II hearing, the trial court revoked Fletcher’s

probation and sentenced him to 18-36 months in prison, with, for purposes

of the Recidivism Risk Reduction Incentive Act,3 a minimum of 13½ months

and an effective date of March 11, 2014.               The trial court further

recommended that Fletcher be placed in a therapeutic unit for treatment.

       Fletcher filed a pro se Notice of Appeal.     The trial court appointed

counsel for Fletcher, who filed a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal. Counsel thereafter filed an

Anders Brief and a Petition to Withdraw from representation.

       Where counsel has petitioned to withdraw from representation, this

Court may not address the merits of any issue raised by the appellant

without first reviewing counsel’s request to withdraw. Commonwealth v.

Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).              Therefore, we review

counsel’s Petition at the outset.

       Counsel seeking to withdraw from representation must (1) petition the

court for leave to withdraw stating that, after making a conscientious


2
  See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (stating that due
process requires that a probationer be given a preliminary (Gagnon I) and a
final (Gagnon II) hearing prior to revoking probation).
3
    61 Pa.C.S.A. §§ 4501-4512.


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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. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

      Here, counsel’s Petition to Withdraw states that he has reviewed the

record and concluded that the appeal is frivolous. Petition to Withdraw at

¶ 1. Additionally, the Petition states that counsel notified Fletcher that he is

seeking permission to withdraw, furnished Fletcher with copies of the

Petition and Anders brief, and advised Fletcher of his right to retain new

counsel or proceed pro se to raise any points he believes worthy of this

Court’s attention.   See id. at ¶ 2.    Accordingly, counsel has satisfied the

procedural requirements of Anders.

      We next determine whether counsel’s Anders brief meets the

substantive dictates of Santiago.      According to Santiago, in the Anders

brief that accompanies 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.




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      Counsel’s Anders Brief provides the facts and procedural history of

the case. Anders Brief at 4-5. Additionally, the Anders Brief refers to one

claim that could arguably support the appeal, and states counsel’s

conclusion that the issue is wholly frivolous.        Id. at 6-7.       Accordingly,

counsel has complied with the minimum requirements of Anders/Santiago.

We next review the issue presented in the Anders Brief to determine

whether the appeal is, in fact, wholly frivolous.

      In the Anders Brief, the following claim is presented for our review:

“Whether the sentence imposed herein should be vacated since it was

unduly harsh and excessive under the circumstances?” Anders Brief at 3.

Fletcher claims that by revoking his probation and imposing a prison term,

the trial court improperly imposed an unduly harsh and excessive sentence.

Id. at 6. Fletcher asserts that his underlying conviction, retail theft, was not

a violent offense, and his alleged violations of probation were technical in

nature. Id. Finally, Fletcher points out the absence of any allegation that

he committed a new crime while under supervision. Id.

      Fletcher challenges discretionary aspects of the sentence imposed

following the revocation of his probation.     “[T]here is no absolute right to

appeal   when    challenging   the    discretionary   aspect   of   a    sentence.”

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)

(citation omitted). An appellant must satisfy a four-part test to invoke this

Court’s jurisdiction when challenging the discretionary aspects of a sentence.



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

must consider

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Id.

      Here, Fletcher failed to preserve his sentencing claim for appellate

review by raising it at sentencing or in a motion to reconsider or modify his

sentence. See id. However, even if Fletcher had preserved this claim for

our review, we agree with counsel’s assessment that the claim is without

merit and frivolous.

      A claim challenging a sentence of total confinement, based solely on a

technical probation violation, raises a substantial question that the sentence

imposed is inappropriate under the Sentencing Code.          Commonwealth v.

Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014). Although Fletcher’s claim

raises a substantial question, the claim is without merit.

      “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.” Id. at 1041.

      When assessing whether to revoke probation, the trial court
      must balance the interests of society in preventing future
      criminal conduct by the defendant against the possibility of


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      rehabilitating the defendant outside of prison. In order to uphold
      a revocation of probation, the Commonwealth must show by a
      preponderance of the evidence that a defendant violated his
      probation.

Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011)

(quotation marks and citations omitted).        “[T]he 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.

Ortega, 995 A.2d 879, 886 (Pa. Super. 2010) (citations and internal

quotations omitted).     “A probation violation is established whenever it is

shown that the conduct of the probationer indicates the probation has

proven to have been an ineffective vehicle to accomplish rehabilitation and

not sufficient to deter against future antisocial conduct.” Id.

      At the Gagnon II hearing, the Commonwealth presented evidence

that Fletcher had completed all of the available Delaware County drug abuse

treatment programs, while he was on probation.          N.T., 7/8/14, at 29-30.

The   Commonwealth       also   presented   evidence    that    Fletcher,   on   four

occasions, violated his probation by failing to report to his probation officer.

Id. at 8. In addition, Fletcher violated his probation by repeatedly testing

positive for drug use. Id. at 9-10. Finally, Fletcher failed to report for his

required community service. Id. at 10-11.




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      The Commonwealth informed the trial court that there were no other

drug treatment options available to Fletcher in Delaware County. Id. at 30.

Fletcher admitted that he continues to have a drug abuse problem. Id. at

31. Finally, the trial court explained on the record its reasons for revoking

Fletcher’s probation and imposing a prison sentence     N.T., 7/8/14, at 39-40.

In particular, the trial court recognized that Fletcher continued to use heroin,

even after completing all available drug abuse treatment programs in

Delaware County. Id. The sentencing judge explained,

      You’ve already been through all the treatment programs. We
      need to get you some serious treatment. And I think that the
      state can provide that….

Id. at 43.

      Thus, the trial court’s revocation of probation and its imposition of a

sentence of total confinement are supported in the record, and we discern

no abuse of discretion by the trial court. Fletcher’s claim in this regard is

without merit, and frivolous.

      Finally, our independent review discloses no other non-frivolous issues

that could be raised on appeal by Fletcher. Accordingly, we grant counsel’s

Petition to Withdraw from representation, and affirm Fletcher’s judgment of

sentence.

      Petition to Withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2015




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