J-S15006-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

SEAN MUES

                         Appellant                 No. 2864 EDA 2014


        Appeal from the Judgment of Sentence September 9, 2014
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0004662-2013


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                               FILED April 25, 2017

      Sean Mues appeals from the judgment of sentence of six to twelve

months imprisonment followed by two years probation that the trial court

imposed after it found that Appellant had violated a probationary term

received after he pled guilty to driving under the influence of a controlled

substance. Counsel 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.

      On June 22, 2013, Appellant was charged with driving under the

influence, reckless driving, and disorderly conduct.   At approximately 9:00

p.m. on the day in question, Chester Police Officer Charles Stevens was
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dispatched to the scene of an accident at 2523 Edgemont Avenue.            Upon

arrival, Officer Stevens observed a vehicle that had been struck by a vehicle

that Appellant was driving. Appellant attempted to flee the crash scene, but

was restrained by an eyewitness. Appellant was incoherent and unable to

answer any questions posed by Officer Stevens, who saw a syringe in

Appellant’s car.   Appellant agreed to submit to a blood alcohol test, which

revealed the presence of morphine and codeine in his system.

      On September 16, 2013, Appellant entered a guilty plea to driving

under the influence of morphine and codeine, his second offense and a first-

degree misdemeanor.       Appellant was sentenced to twenty-three months

intermediate punishment and a consecutive term of three years probation.

As part of his sentence, Appellant had to 1) complete a Court Reporting

Network (“CRN”) evaluation, which is used to determine an individual’s

dependency on alcohol or controlled substances; 2) undergo a drug and

alcohol evaluation; 3) complete all recommendations resulting from the drug

and alcohol evaluation; 4) pay fines and costs; and 5) perform ninety-six

hours of community service.

      Appellant thereafter was charged with violating the terms of probation

in the following respects: 1) failing to report to his probation officer on three

occasions; 2) using heroin; 3) neglecting to pay any of the fines and costs;

4) not performing any of the community service hours; 5) failing to complete

his CRN evaluation; and 6) neglecting to start a medically-monitored long

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term inpatient treatment program that had been recommended after

Appellant completed his drug and alcohol evaluation.          At a violation of

probation hearing on September 9, 2014, Appellant admitted the violations

and reported that he had a heroin addiction problem.         He volunteered to

participate in a long-term inpatient treatment program.

      The trial court determined that Appellant was in violation of his

probation and sentenced him to six to twelve months imprisonment with

immediate parole upon completion of the treatment program that Appellant

had agreed to attend. Appellant also was sentenced to two years probation.

When imposing its sentence, the court noted that the probation office had

recommended a sentence of eighteen to thirty-six months imprisonment and

that it had exercised considerable lenity in the six to twelve month sentence

imposed. Appellant’s post-sentence rights were explained to him at the end

of the proceeding.

      After sentence was imposed on October 8, 2014, Appellant filed a

timely counseled notice of appeal from the judgment of sentence.           The

record was not timely transmitted to this Court, and on November 4, 2015,

we issued notice to the trial court of this default.    On August 19, 2016,

Appellant filed an application for relief with this Court.   He noted that his

appeal had been timely filed on October 8, 2014, that the trial court never

ordered that a Pa.R.A.P. 1925(b) statement be filed, and that it never issued

an opinion.     Counsel thereafter voluntarily filed a Pa.R.A.P. 1925(b)

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statement, but the trial court failed to respond. Since almost two years had

elapsed since the filing of the appeal, Appellant asked this Court to enter an

order directing the trial court to transmit the record without an opinion so

that a briefing schedule could be issued.     On September 12, 2016, we

ordered the trial court to issue an opinion and transmit the record within

thirty days of issuance of the order.     The trial court complied with that

directive, and we received the record and an opinion.

      Thereafter, counsel filed a petition to withdraw as counsel and Anders

brief. Since we do not consider the merits of an issue raised in an Anders

brief without first reviewing a request to withdraw, we now address counsel’s

petition to withdraw.     Commonwealth v. Cartrette, 83 A.3d 1030

(Pa.Super. 2013) (en banc). In order to be permitted to withdraw, counsel

must meet three procedural requirements: 1) file a petition for leave to

withdraw and state that, after making a conscientious examination of the

record, counsel has concluded that the appeal is frivolous; 2) provide a copy

of the Anders brief to the defendant; and 3) inform the defendant that he

has the right to retain private counsel or raise, pro se, additional arguments

that the defendant deems worthy of the court’s attention. Id.

      Counsel's motion to withdraw indicates that he made a thorough

review of Appellant’s case, and found a complete lack of issues that might be

raised on appeal.   Counsel concluded that the appeal was wholly frivolous

and prepared an Anders brief.      Counsel mailed a copy of the motion to

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withdraw and the brief to Appellant. A letter to Appellant is attached to the

motion. In that document, counsel advised Appellant that, after review of

this case and applicable law, counsel found no issues to pursue on appeal

and determined the appeal was frivolous.      Counsel also told Appellant he

could submit his own brief or hire another attorney to file one. The petition

to withdraw and Anders brief were enclosed with the letter.          Thus, the

procedural aspects of Anders were satisfied herein.

      We next examine the briefing requirements when counsel seeks to

withdraw on direct appeal. Pursuant to Santiago, an Anders 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 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, supra at 361.

      Appellant's brief satisfies the mandates of Santiago. It sets forth the

procedural and factual history of the violation of the proceeding.     Counsel

presents an argument and legal authority about the propriety of the

sentence imposed and establishes why it did not constitute an abuse of

discretion.

      We therefore examine the issue presented: “Whether the 6 to 12

month term of imprisonment imposed herein is harsh and excessive under



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the circumstances?”   Appellant’s brief at 1.   Initially, we note that “in an

appeal from a sentence imposed after the court has revoked probation, we

can review the validity of the revocation proceedings, the legality of the

sentence   imposed    following   revocation,   and   any   challenge   to   the

discretionary aspects of the sentence imposed.” Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa.Super. 2015); see Commonwealth v.

Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc).

      As we recently observed in Commonwealth v. McLaine, 150 A.3d

70, 76 (Pa.Super. 2016) (citation omitted), “[a]n appellant is not entitled to

the review of challenges to the discretionary aspects of a sentence as of

right.” Instead, to invoke our jurisdiction involving a challenge to the

discretionary aspects of a sentence, an appellant must satisfy the following

four-part test:

      (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, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).


Id.

      In the present case, the appeal is timely and Appellant’s brief contains

a Pa.R.A.P. 2119(f) statement; however, the issue is not preserved for

review. At the time of sentencing, Appellant raised no objection that his six



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to twelve month term of imprisonment was harsh and excessive, and he did

not file a post-sentence motion.    Thus, we cannot entertain the merits of

Appellant’s challenge to his sentence.

      We have conducted an independent review of the record, as required

by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),

and have concluded that there are no preserved non-frivolous issues that

can be raised in this appeal.    Hence, we concur with counsel’s conclusion

that this appeal is wholly frivolous and allow him to withdraw.

      Petition of Patrick J. Connors, Esquire, to withdraw is granted.

Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2017




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