J-S55016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA


                        v.

    ALLEN SHONK

                             Appellant                   No. 526 MDA 2017


           Appeal from the Judgment of Sentence February 14, 2017
             in the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0003228-2009


BEFORE: DUBOW, RANSOM, and STRASSBURGER, JJ.*

MEMORANDUM BY RANSOM, J.:                            FILED OCTOBER 18, 2017

        Appellant, Allen Shonk, appeals from the judgment of sentence of

eighteen months to four years of incarceration, entered February 14, 2017,

which was imposed after the revocation of Appellant’s probation. Additionally,

Appellant’s counsel, Donna M. DeVita, Esq., seeks to withdraw her

representation of Appellant pursuant to Anders v. California, 87 S. Ct. 1936

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

affirm and grant counsel’s petition to withdraw.

        The trial court discussed the procedural history of this matter as follows:

        On December 11, 2009, [Appellant] pled guilty to one count of
        burglary,1 and in exchange, the other charges pending against
        [Appellant] were nolle prossed. These charges arose between
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   See 18 Pa.C.S. § 3502(a).
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      August and November of 2009 when the defendant committed
      several burglaries of homes in Moosic Lakes, Jefferson Township.
      At the guilty plea proceeding, the defendant admitted to
      committing these crimes.

      On March 3, 2010, [Appellant] was sentenced to 30 months to 72
      months of incarceration followed by 2 years of probation.
      [Appellant] was released on parole, but violated the terms of his
      special probation and parole. On July 19, 2016, [Appellant]
      stipulated to the violation of the special probation sentence, and
      the court revoked the special probation sentence and deferred
      resentencing pending disposition of a new offense in Luzerne
      County. On February 14, 2017, [Appellant] was resentenced to
      18 to 48 months of incarceration.

See Trial Court Opinion (TCO), 4/28/17, at 1-2.            Subsequent to his

resentencing, Appellant filed a motion for reconsideration of sentence, which

was denied.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The court issued a responsive

opinion.

      In this Court, Appellant’s counsel has filed an Anders brief, asserting

two issues that Appellant might seek to raise: 1) whether the sentence was

legal as the violation occurred before Appellant began serving his probation,

and 2) whether the sentence was inappropriately harsh and excessive and an

abuse of discretion for a technical violation. See Appellant’s Brief at 4.

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

the merits of any possible underlying issues without first examining counsel’s

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

Super. 2007) (en banc).     Prior to withdrawing as counsel on direct appeal



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under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

      (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 a copy of the Anders brief to his client.
      Attending the brief must be a letter that advises the client of his
      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 court[’]s attention in addition to the points raised
      by counsel in the Anders brief.” Commonwealth v. Nischan,
      928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704,
      936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, only then may this Court “conduct an independent

review of the record to discern if there are any additional, non-frivolous issues

overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (citations and footnote omitted).

      In the instant matter, Attorney DeVita’s Anders brief complies with the

above-stated requirements. Namely, she includes a summary of the relevant



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factual and procedural history; she refers to the portions of the record that

could arguably support Appellant’s claims; and she sets forth her conclusion

that Appellant’s appeal is frivolous. She explains her reasoning and supports

her rationale with citations to the record as well as pertinent legal authority.

Attorney DeVita avers she has supplied Appellant with a copy of her Anders

brief and a letter explaining the rights enumerated in Nischan. Accordingly,

counsel has complied with the technical requirements for withdrawal. Thus,

we may independently review the record to determine if the issues Appellant

raises are frivolous and to ascertain if there are other non-frivolous issues he

may pursue on appeal.

       First, Appellant claims that his sentence is illegal, as he had not begun

serving probation when his probation was revoked.2 See Appellant’s Brief at

10.

       On appeal from a sentence imposed after the revocation of probation,

our review is limited to determining the validity of the revocation proceedings

and the authority of the court to consider the same sentence alternatives it

had at the time of the initial sentence. See Commonwealth v. MacGregor,

912 A.2d 315, 317 (Pa. Super. 2006). A sentence of total confinement may

be imposed if the defendant has been convicted of another crime or if his

conduct indicates it is likely he              will commit another crime.   See

____________________________________________


2 Appellant’s counsel includes this issue in her Pa.R.A.P. 2119(f) statement;
however, it seems more appropriately a challenge to the legality of the
sentence rather the discretionary aspects.

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Commonwealth v. Hoover, 909 A.2d 321, 323 (Pa. Super. 2006). (affirming

judgment of sentence following revocation of probation, where defendant

violated before probation service had begun; defendant had not committed

new criminal offenses but demonstrated he was unworthy of probation).

      Further, a defendant need not have commenced his probationary

sentence when a court revokes his probation.         See Commonwealth v.

Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980). It is well-settled that an

order of probation may be changed or revoked “if, at any time before the

defendant has completed the maximum period of probation, or before he has

begun service of his probation the defendant commits offenses or otherwise

demonstrates he is unworthy of probation.”          See Commonwealth v.

Mitchell, 955 A.2d 433, 435 n.2 (Pa. Super. 2008) (internal quotation

omitted); see also Hoover, 909 A.2d at 323.

      Here, the court determined that:

      [p]robation was no longer appropriate for this defendant and his
      conduct indicated that not only was it likely that he would commit
      another crime, but he had committed another crime. This court
      sentenced him within the statutory limits, and did not abuse its
      discretion.

See TCO at 3. We find no error of law or abuse of discretion in this conclusion.

See MacGregor, 912 A.2d at 317; Hoover, 909 A.2d at 323.

      Appellant next challenges the discretionary aspects of his sentence,

arguing that the sentence imposed was harsh and unreasonable and an abuse

of discretion. See Appellant’s Brief at 12.



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     A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal.    See Commonwealth v.

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.

2119(f). This Court conducts a four-part analysis to determine: (1) whether

Appellant has timely filed a 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,   42   Pa.C.S.   §   9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).

     Appellant timely filed a notice of appeal and has included a statement

pursuant to Pa.R.A.P. 2119(f) in his brief.   See Appellant’s Brief at 9-12.

However, Appellant did not preserve this issue at sentencing or in a post-

sentence motion. Appellant did timely file a post sentence motion requesting

a minimal state sentence or his probation reinstated and argued he was the

product of particular circumstances not fully expressed at the time of

sentencing, but he did not raise the issue that the sentence was excessive.

See Post Sentence Motion, 2/15/17, at ¶¶ 1-7. Accordingly, we may not reach

the merits of his issue. See Leatherby, 116 A.3d at 83.

     In short, we agree with Attorney DeVita that Appellant’s issues are

frivolous. We have independently reviewed the record and find no other issues




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of arguable merit that he could pursue on appeal.    Accordingly, we affirm

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

      Petition to withdraw granted.      Judgment of sentence affirmed.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2017




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