J-S32019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER DAPP

                            Appellant                   No. 27 EDA 2017


                Appeal from the Order Entered October 12, 2016
                  In the Court of Common Pleas of Pike County
                Criminal Division at No: CP-52-CR-0000348-2014


BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD, * JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 17, 2017

        Appellant, Christopher Dapp, appeals from the October 12, 2016 order

entered in the Court of Common Pleas of Pike County (“trial court”), denying

his motion for early release from probation. Counsel for Appellant has filed

a brief in accordance with Anders v. California, 368 U.S. 738 (1969),

concurrently with an application to withdraw.      Following review, we grant

counsel’s application for leave to withdraw and affirm the order denying

Appellant’s motion.

        The trial court summarized the factual and procedural history of the

matter as follows.
            On December 12, 2014, [Appellant] entered a negotiated
     plea to three (3) counts of Retail Theft.     [Appellant] was
     sentenced on February 5, 2015 and was placed on probation for
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     a period of one (1) year on each count, to be served consecutive
     for a total aggregate sentence of three (3) years of probation
     supervision. As indicated above, the [trial court’s] sentence was
     entered pursuant to a negotiated guilty plea agreement between
     the Commonwealth and [Appellant].

            [Appellant] filed a Motion for Early Release from probation
     supervision on August 23, 2016.           A hearing was held on
     [Appellant’s] Motion on October 6, 2016. [Appellant] testified
     that he served in the military in the past and had completed six
     (6) years in the reserves. [Appellant] also testified that he was
     seeking to re-enlist in the military for active duty, but the terms
     of his probation supervision would not allow him to do so.
     [Appellant] had completed about one and one-half (1 ½) years
     of his probation supervision at the time of the hearing.

            [The trial court] took the matter under advisement in order
     to review the record in is entirety. On October 12, 2016, [the
     trial court] denied [Appellant’s] Motion for Early Release. On
     November 10, 2016, [Appellant] field a Notice of Appeal as to
     the Order dated October 12, 2016. On November 14, 2016, [the
     trial court] ordered [Appellant] to file a Concise Statement of
     Matters Complained of on Appeal within twenty-one (21) days of
     the date of the Order. [Appellant] filed a Concise Statement of
     Matters Complained of on Appeal on December 5, 2016.

Trial Court Opinion, 12/27/16, at 1-2. The trial court issued an opinion on

December 27, 2016. On February 24, 2017, appellate counsel filed, in this

Court, an Anders brief concomitantly with an application to withdraw. The

Anders brief raises one issue for review: “Whether the [t]rial [c]ourt abused

its discretion by denying [Appellant’s] Petition for Early Release from

Probation and by failing to immediately release [Appellant] from probation

supervision.” Anders Brief at 6.

     Before we can address the merits of Appellant’s claim, we must first

address counsel’s application to withdraw.   Commonwealth v. Goodwin,



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928 A.2d 287, 290 (Pa. Super. 2007) (en banc).            In order for court-

appointed counsel to withdraw, 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) file a brief
      referring to anything that arguably might support the appeal but
      which does not resemble a “no-merit” letter or amicus curiae
      brief; and (3) furnish a copy of the brief to the defendant and
      advise the defendant of his or her right to retain new counsel or
      raise any additional points that he or she deems worthy of the
      court’s attention.

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

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).

      Following review, we conclude counsel has satisfied the procedural

requirements set forth in Anders.        In the brief, counsel explains her

conclusion that the issue sought to be raised by Appellant, that the trial

court abused its discretion when it denied his petition to terminate his

probation early is wholly frivolous. Further, Counsel sent Appellant a letter,

along with a copy of the Anders brief, dated February 21, 2017, advising

Appellant of his right to retain new counsel or act on his own behalf.

      Because we find that counsel has complied with the procedural

requirements of Anders, we next address whether counsel has satisfied the

following substantive requirements:

      (1)   provide a summary of the procedural history and facts,
            with citations to the record;
      (2)   refer to anything in the record counsel believes arguably
            supports the appeal;
      (3)   set forth counsel’s conclusion that the appeal is frivolous;
            and

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      (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.

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

      In her Anders brief, counsel has included a statement of the case

including   the procedural history of the case.   Anders Brief at 7.      Thus,

counsel has complied with the first requirement. The second requirement is

for counsel to reference anything in the record that she believes arguably

supports the appeal. See Santiago, 978 A.2d at 361. Here, counsel raises

one issue: whether the trial court abused its discretion when it denied his

petition to terminate his probation early. Anders Brief at 6. Thus, counsel

has satisfied the second Anders requirement.

      The third substantive requirement of Anders is for counsel to state

her conclusion that the appeal is frivolous.   Santiago, 978 A.2d at 361.

After which, counsel must provide the reasons for concluding that the brief is

frivolous. Id. Counsel’s brief complied with these requirements, thus she

has satisfied the final prong of the Anders test.     Anders Brief at 9-11.

Because we find counsel has satisfied the requirements for a petition to

withdraw under Anders and Santiago, we must address the substantive

issues raised by Appellant.

      Appellant filed a motion to terminate his probation early in accordance

with 42 Pa.C.S.A. § 9771(a), which provides that “[t]he court may at any

time terminate continued supervision or lessen or increase the conditions



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upon which an order of probation has been imposed.”           42 Pa.C.S.A. §

9771(a). An appeal from an order denying a request for early termination of

probation is a challenge to the underlying sentence.

      Sentencing 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. Proctor, 167 A.3d 261 (Pa. Super. 2017) (quoting

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super 2015)

(citation omitted)). In the matter sub judice, Appellant entered a negotiated

plea for a sentence of three years’ probation. The trial court held a hearing

on Appellant’s request to terminate his probation, and the Commonwealth

objected to his motion. “[W]hen a plea is entered following negotiations, it

is even more important that the terms of the agreement be followed.”

Commonwealth v. Ortiz, 854 A.2d 1280, 1283 (Pa. Super. 2004) appeal

denied, 863 A.2d 1145 (Pa. 2004) (citation omitted). Thus, we find that the

trial court did not abuse its discretion when it denied Appellant’s request for

early termination of probation.

      Order affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




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