J-S02022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MARIANO OLIVO

                        Appellant                 No. 1002 EDA 2015


           Appeal from the Judgment of Sentence March 3, 2015
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0003012-2009


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                     FILED JANUARY 12, 2016

     After Defendant Mariano Olivo repeatedly violated his parole and

probation, he was re-sentenced to 6-12 months’ incarceration.    Olivo now

appeals from his judgment of sentence entered in the Court of Common

Pleas of Lehigh County. Counsel has filed a petition to withdraw on appeal,

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

review, we grant counsel’s request to withdraw and affirm Olivo’s judgment

of sentence.

     Olivo originally pled guilty to one count of possession of a controlled

substance and two counts of endangering the welfare of a child in

September 2009; he was sentenced to 5 years of probation.       From March

2011 through December 2014, Olivo continuously violated his probation and

parole. Most recently, in March 2015, Olivo violated his probation and was
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resentenced to 6-12 months’ incarceration which was to run consecutively to

a 4-8 year burglary sentence that he has been serving since February 2015.

Olivo filed an unsuccessful motion for reconsideration.    This timely appeal

follows.

       On appeal, Olivo presents the following question for our review:

              Whether the lower court abused its sentencing
              discretion[1] when, after determination [sic] that the
              defendant had violated his probation, the court sentenced
              him to [a] consecutive term of imprisonment in a state
              correctional institution?[2]

       In order for counsel to withdraw from an appeal pursuant to Anders,

certain requirements must be met, and counsel must:

       (1) provide a summary of the procedural history and facts,
       with citations to the record;


____________________________________________


1
  Under Pennsylvania law, 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.” Commonwealth v.
Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (quoting Commonwealth
v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005)). An abuse of discretion
requires more than the showing of a mere error in judgment; rather, an
appellant must demonstrate that the trial court was “manifestly
unreasonable” or exercised judgment that was the result of “partiality,
prejudice, bias, or ill-will.” Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.
Super. 2002).

2
  Counsel’s brief also lists as an issue “[m]ay appointed counsel be permitted
to withdraw after a conscientious review of the issues and the facts pursuant
to the Anders case?” Because this inquiry is mandated when our Court is
faced with a petition to withdraw, we have not listed it as a separate issue
above.



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      (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.

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing

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

      Our   review     of   counsel’s   application   to   withdraw,   supporting

documentation, and Anders brief reveal that counsel has complied with the

requirements set forth in Daniels and Santiago.               Counsel has also

furnished a copy of the brief to Olivo, advising him of his right to proceed

pro se or raise any additional points that he deems worthy of the court’s

attention. Accordingly, we will now turn to the issue counsel stated arguably

supports the appeal.

      Olivo claims that the court abused its discretion by sentencing him to a

consecutive, rather than a concurrent, sentence which results in him having

to serve time in a state correctional facility, rather than a county jail. Olivo’s

issue raises a discretionary aspect of sentencing claim. It is well settled that

there is no absolute right to appeal the discretionary aspects of a sentence.

Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002). To challenge the

discretionary aspects of a sentence, the defendant must first raise that claim

at the sentencing hearing or in a post-sentence motion.           Pa.R.A.P. 302;

Commonwealth v. Dodge, 859 A.2d 771 (Pa. Super. 2004).                 Next, the


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defendant must “set forth in his brief a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence.” Pa.R.A.P. 2119(f); Commonwealth v. Tuludziecki, 522

A.2d 17, 19 (Pa. 1987).     Finally, a defendant must also demonstrate a

substantial question by setting forth “a plausible argument that the sentence

violates a particular provision of the Sentencing Code or is contrary to the

fundamental norms underlying the sentencing process.”      Commonwealth

v. Moore, 617 A.2d 8, 11 (Pa. Super. 1992).

     Instantly, Olivo raised his discretionary aspect of sentencing claim by

including it in his motion to modify sentence; therefore, he has complied

with Rule 302 and Dodge.    However, we note that, generally, a trial court’s

exercise of discretion in imposing consecutive as opposed to concurrent

sentences is not viewed as raising a substantial question that would allow

the granting of allowance of appeal. Commonwealth v. Marts, 889 A.2d

608 (Pa. Super. 2005). In fact, only in extreme cases where the imposition

of consecutive sentences amounts to an aggregate sentence that is unduly

harsh will such an issue be considered to raise a substantial question.

Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010).

     Here, Olivo’s aggregate sentence, when viewed in the context of the

entire history of his criminal transgressions, is not so unduly harsh that we

find he has raised a substantial question on appeal. However, even if we did

find that it raised a substantial question, we do not believe that the trial

court’s sentence was an abuse of discretion.      Ferguson, supra.     Upon

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sentencing following a revocation of probation, the court is limited only by

the   maximum        sentence   that   it    could    have   originally   imposed.

Commonwealth v.          Coolbaugh,     770    A.2d    788   (Pa.   Super.   2001).

Moreover, once probation is revoked, a sentence of total confinement may

be imposed if any of the following conditions exist: the defendant has been

convicted of another crime; the conduct of the defendant indicates that it is

likely that he will commit another crime if he is not imprisoned; or, such a

sentence is essential to vindicate the authority of the court. 42 Pa.C.S. §

9711(c).

      In the present case, there is no question that the court was justified in

making Olivo’s probationary sentence consecutive to his prior burglary

sentence.      As the trial court recognizes, this was Olivo’s third probation

violation.     Moreover, by serving his sentence in a state correctional

institution, it is more likely that Olivo will receive proper treatment for his

recurring drug problems, which, in turn, may reduce the likelihood of his

reoffending.

      Judgment of sentence affirmed.            Petition to withdraw granted.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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