J-S12013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    KYLE LEE AUNKST                            :
                                               :   No. 1377 MDA 2017
                       Appellant               :

           Appeal from the Judgment of Sentence December 28, 2016
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0000438-2015,
                           CP-41-CR-0000787-2015


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                  FILED MAY 21, 2018

        Kyle Lee Aunkst appeals from his judgment of sentence, entered in the

Court of Common Pleas of Lycoming County, following revocation of his

probation.     Aunkst’s counsel has filed an Anders1 brief, together with a

petition to withdraw as counsel.          After review, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

        On April 21, 2015, Aunkst and his accomplice stole numerous DVDs and

video games from a Target store; the approximate value of the stolen

merchandise was $334.00. On June 1, 2015, Aunkst pleaded guilty to retail




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1   Anders v. California, 386 U.S. 738 (1967).
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theft,2 graded as a misdemeanor of the first degree.3 On August 11, 2015,

the trial court imposed a term of three years’ probation under the supervision

of the Lycoming County Adult Probation Office. The trial court summarized

Aunkst’s conduct while on probation as follows:

        [Aunkst] was released from prison on his initial sentence on
        August 26, 2015. He was permanently detained on December 14,
        2016. He was sentenced on December 28, 2016. In this 16-month
        period of time, [Aunkst] was in five inpatient treatment facilities.
        Additionally, he was in three halfway houses. He was on active
        supervision and when he was not in an inpatient facility or at a
        halfway house, he was provided outpatient counseling, reentry
        services and medically assisted treatment. Yet despite all of these
        efforts toward treatment and rehabilitation, [Aunkst] could not
        maintain his sobriety and continued to use heroin. In fact, it
        appears that [Aunkst’s] addiction actually worsened. By August
        of 2016, while [Aunkst] was in a halfway house, he overdosed.
        [Aunkst] stopped reporting and absconded from supervision[.]

Trial Court Opinion, 11/27/17, at 2.

        On December 28, 2016, the trial court revoked Aunkst’s probation and

sentenced him to 2½ to 5 years’ imprisonment. On February 23, 2017, Aunkst

filed a letter with the trial court, which it treated as a pro se petition for

collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546.         The PCRA court appointed counsel, and granted

Aunkst relief to right to file post-sentence motions nunc pro tunc. On August


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2   18 Pa.C.S.A. § 3929.

3See 18 Pa.C.S.A. § 3929(b)(iii) (“Misdemeanor of the first degree when the
offense is a first or second offense and the value of the merchandise is $150
or more.”).

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29, 2017, the trial court denied Aunkst’s motion to modify sentence.        The

following day, Aunkst filed a timely notice of appeal. Both Aunkst and the trial

court have complied with Pa.R.A.P. 1925.

      Preliminarily, we address counsel’s motion for withdrawal. To obtain

permission to withdraw, counsel must file an Anders brief that meets the

requirements established by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). The brief 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 reasonably believes 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 statuses on point that have led to the conclusion
      that the appeal is frivolous.

Santiago, 978 A.2d at 361. Counsel must provide the appellant with a copy

of the Anders brief along with a letter that advises the appellant of his or her

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).

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




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appeal is, in fact, wholly frivolous.”   Commonwealth v. Palm, 903 A.2d

1244, 1246 (Pa. Super. 2006).

      Here, appointed counsel, Julian Allatt, Esquire, filed an application for

leave to withdraw as counsel. In his Anders brief, Attorney Allatt states that,

following review of the applicable law and the record, including the probation

revocation hearing transcript, he determined Aunkst’s challenge to the

discretionary aspects of his sentence was wholly frivolous. In Attorney Allatt’s

Anders brief, he: (1) includes a summary of the facts and the procedural

history of the case; (2) refers to evidence of record that arguably supports

Aunkst’s claim on appeal; (3) cites to relevant case law; (4) and states his

conclusion that Aunkst’s claim on appeal is frivolous. On January 23, 2018,

Attorney Allatt provided Aunkst with a copy of his Anders brief and a letter

advising him of his rights.    Accordingly, Attorney Allatt has substantially

complied with the requirements of Anders and Santiago.

      As Aunkst has filed neither a pro se brief nor a counseled brief with new,

privately retained counsel, we review this appeal based on the lone issue of

arguable merit raised in Attorney Allatt’s Anders brief:

      Whether the trial court abused its discretion by sentencing
      [Aunkst] to a manifestly excessive aggregate period of
      incarceration of [2½ to 5] years[’ imprisonment] on a probation
      revocation where the underlying crime [] is a single count of retail
      theft graded as a misdemeanor of the first degree and the basis
      for revocation was a series of relatively minor violations of the
      conditions of [Aunkst’s] probation[?]

Anders Brief, at 8.



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      “The imposition of a sentence following the revocation of probation ‘is

vested within the sound discretion of the trial court, which, absent an abuse

of that discretion, will not be disturbed on appeal.’”      Commonwealth v.

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

Smith, 669 A.2d 1008, 1011 (Pa. Super. 1996). An abuse of discretion is

more than an error in judgment.        A sentencing court has not abused its

discretion unless the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Sierra, 752 A.2d at 913.

      However, challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right. Commonwealth v. Moury, 992

A2d 162, 170 (Pa. Super. 2010).           Prior to reaching the merits of a

discretionary sentencing issue,

      [this Court conducts] a four part analysis to determine: (1)
      whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
      has a fatal defect, [see] Pa.R.A.P. 2219(f); and (4) whether there
      is a substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. §
      9781(b).
Moury, 992 A.2d at 170 (citation omitted).

      Aunkst filed a timely notice of appeal and preserved his

discretionary sentencing issue in a motion to modify sentence. Aunkst

did not file a concise statement of reasons relied upon for allowance of



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appeal with respect to the discretionary aspects of his sentence pursuant

to Rule 2119(f).       However, the Commonwealth did not object to the

instant procedural defect4 and a Rule 2119(f) statement is not required

in an Anders brief. Commonwealth v. Zeigler, 112 A.3d 656 (Pa.

Super. 2015) (appellate court would not consider failure of defense

counsel, who filed Anders brief, to submit a concise statement of

reasons for allowance of appeal, with respect to discretionary aspects of

sentence, as precluding review of whether defendant’s sentencing issue

was frivolous). Thus, we proceed with our review of Aunkst’s claim on

appeal.

       Aunkst claims that the trial court’s imposition of a maximum

sentence for retail theft graded as a misdemeanor is manifestly

excessive. Aunkst’s claim is without avail.

       On appeal from a revocation proceeding, a substantial question that a

sentence is inappropriate is presented, so as to permit review of discretionary

aspect of sentence, when a sentence of total confinement, in excess of the

original sentence, is imposed as a result of a technical violation of parole

or probation. Sierra, 752 A.2d at 913. Therefore, Aunkst has presented a

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4   The   Commonwealth         did   not   file   a   brief   in   this   matter.   See
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (when
appellant has not included concise statement of reasons relied upon for
allowance of appeal with respect to discretionary aspects of sentence and
appellee has not objected, appellate court may ignore omission and determine
if there is substantial question that sentence imposed was not appropriate or
enforce requirements of rule, requiring concise statement, sua sponte).

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substantial question necessitating our review.           Id. (“The imposition of

[appellant’s] sentence of total confinement at the statutory maximum for her

underlying offense, following revocation of probation for a technical

parole/probation violation-and not for a new criminal offense-is on its face, so

disproportionate as to implicate the fundamental norms which underlie the

sentencing process.”) (quotations omitted).         However, after review of the

record, we are confident that the trial court did not abuse its discretion.

       Upon revocation of probation, the trial court shall not impose a sentence

of total confinement unless it finds that:

       (1) the defendant has been convicted of another crime; or

       (2) the conduct of the defendant indicates 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(c).         Accordingly, technical violations are sufficient to

trigger the revocation of probation. Sierra, 752 A.2d at 912.

       During the course of Aunkst’s probation, he used heroin despite punitive

sanctions and treatment, failed to comply with the requirements of Vivitrol

Court,5 and recently, absconded from supervision following an overdose. The
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5 Lycoming County Vivitrol Court provides the drug Vivitrol with structured
counseling and supervision to heroin addicts that would normally spend their
sentence in state prison. Vivitrol blocks opioid receptors so that a person
cannot get high while also reducing their cravings to use. Another chance:
County court drug program shows promise against opioids, Williamsport Sun-
Gazette,    Mar.    29,     2017,     http://www.sungazette.com/news/top-



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Honorable Marc F. Lovecchio considered the relevant factors in sentencing

Aunkst, including his substance abuse issues and depression, and orally

recited his reasons for revocation of probation on the record.          See N.T.

Revocation Hearing, 12/28/16, at 14-16. See Commonwealth v. Pasture,

107 A.3d 21, 28-29 (Pa. 2014) (where revocation of probation sentence was

adequately considered and sufficiently explained on record by revocation

judge, in light of judge’s experience with defendant and awareness of

circumstances of probation violation, under appropriate deferential standard

of review, sentence, if within statutory bounds, is peculiarly within judge’s

discretion). Ultimately, Judge Levecchio “maxed out” Aunkst’s sentence. See

Pasture, 107 A.3d at 27-28 (“Upon revoking probation, . . . the trial court is

limited only by the maximum sentence that it could have imposed originally

at the time of the probationary sentence.”). However, even in light of the

sentencing court’s significant departure from the probation sentence, we do

not find Judge Lovecchio abused his discretion in sentencing Aunkst to 2½ to

5 years’ incarceration.6
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news/2017/03/another-chance-county-court-drug-program-shows-promise-
against-opioids/ (last visited May 1, 2017).

6  In determining that Aunkst’ behavior merited the sentence imposed, the
trial court focused almost exclusively on Aunkst’s heroin addiction, rather than
the nexus between his technical violations and the underlying offense. See
generally Trial Court Opinion, 2/5/18, at 3-7, 9.              Additionally, Judge
Levecchio dismissed the candor of Aunkst’s claim, stating that “[f]rom where
this court sits, . . . it appears that virtually every sentence it imposes is being
challenged as manifestly excessive[.]” Id. at 2. However, to his credit, Judge



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       Judgment of sentence affirmed.            Counsel’s petition to withdraw is

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/21/2018




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Lovecchio acknowledges that his judiciousness may not be without fault. Id.
at 2 (“Perhaps, however, this court is wrong[.]”).

In light of the foregoing, we simply reemphasize that the consequences of
Aunkst’s drug addiction and misdemeanor may ultimately amount to 60
months’ confinement. Aunkst’s sentence is lawful; however, it is a remarkable
departure from his original sentence.

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