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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JAMES P. CANNON III,                    :         No. 1595 EDA 2015
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, April 27, 2015,
              in the Court of Common Pleas of Chester County
             Criminal Division at No. CP-15-CR-0005047-2005


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 13, 2016

      James P. Cannon, III, appeals from the judgment of sentence of

April 27, 2015, following revocation of his probation.    Appointed counsel,

Erin N.B. Bruno, Esq., has filed a petition to withdraw and accompanying

Anders brief.1   After careful review, we grant the withdrawal petition and

affirm the judgment of sentence.

      In a prior published opinion affirming appellant’s original judgment of

sentence on direct appeal, this court set forth the history of this case as

follows:

                  On February 17, 2006, Cannon entered an
           open guilty plea to twenty-five counts of possession
           of child pornography,[Footnote 1] two counts of
           solicitation to prostitution,[Footnote 2] two counts of

1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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          solicitation to indecent assault,[Footnote 3] and one
          count of corruption of minors.[Footnote 4]        The
          factual basis for the plea follows:

               In July 2005, the West Whiteland Police
               were contacted regarding an incident
               involving a 14 year old boy. The boy’s
               mother called the police to report that
               her son had been chatting online with a
               man later identified as defendant,
               39 year old James Cannon.

               On July 4th, 2005 the victim had gone to
               the area of Pierce Middle School to meet
               [Cannon]. [Cannon] had been chatting
               online with the victim for several
               months. The victim was using the screen
               name of Alley Hopping and [Cannon] was
               using the screen name of Agent 975.
               Over the course of time [Cannon]
               chatted with the victim and learned that
               the boy was 14 years old. During these
               online computer chats [Cannon] engaged
               in conversations with the victim in which
               he requested that the victim and
               [Cannon] meet for the purpose of
               engaging in sexual acts.

               On July 4th, 2005 [Cannon] instant
               messaged, or IMed, the victim, and once
               against [sic] asked him sexually related
               questions and offered to give the boy
               money in exchange for the acts.

               On July 4th, 2005 during this online chat
               [Cannon] arranged to meet the boy in
               the area of Pierce Middle School at
               approximately 5:30 p.m.       The victim
               arrived in the area of the middle school
               and [Cannon] arrived in the vehicle. The
               boy got in the car and spoke with
               [Cannon] for approximately 15 minutes.
               [Cannon] would provide only his first
               name to the victim.


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               The victim would testify that [Cannon]
               requested masturbation and oral sex
               from the victim. [Cannon] drove the boy
               to Wawa where he purchased cigarettes
               for the boy.     The victim declined to
               engage in any sexual acts and left the
               vehicle.

               The victim told police after he left the
               vehicle he walked around for 15 minutes,
               then contacted his mother who contacted
               the police. The West Whiteland Police
               and Chester County Detectives created a
               photographic lineup from which the
               victim was able to identify [Cannon].

               A search warrant was then executed at
               [Cannon’s] residence in West Whiteland
               Township in Chester County.         The
               computer equipment was seized and
               searched.   Over 100 images of child
               pornography were located on the
               computer along with several web cam
               videos of teenage boys masturbating.
               He admitted to IMing the victim on
               several occasions, but less than a year,
               unquote.

               Initially [Cannon] told the police he met
               the victim for the purpose of buying him
               cigarettes. [Cannon] denied asking for
               sexual acts for money. However, the
               information from the computer showed
               discussions consistent with what the
               victim had disclosed to the police.

               These conversations clearly showed that
               [Cannon] was offering the victim money
               for sexual acts.

          N.T. Guilty Plea Hearing, 2/17/06, at 4-6.




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                The trial court ordered the Sexual Offender’s
          Assessment Board (“SOAB”), to assess whether
          Cannon was a sexually violent predator (“SVP”) and
          also ordered a pre-sentence report. Id. at 19-20.
          In the interim, on August 3, 2006, Cannon filed a
          motion for a court-appointed psychological expert,
          claiming that he could not afford one. Following an
          evidentiary hearing, the trial court denied the motion
          because it determined that Cannon was not indigent.
          N.T. Motion Hearing, 8/9/06, at 7-9. A Megan’s Law
          hearing was held on September 18, 2006. The court
          heard testimony from SOAB assessor Dr. Bruce
          Mapes. After extensive discussion of the basis for
          his decision in accordance with the dictates of the
          pertinent statutory framework, Dr. Mapes concluded
          that Cannon was an SVP. N.T. SVP Hearing, 9/18/06,
          at 4-86.    The court subsequently accepted that
          testimony and determined that Cannon was an SVP.
          Id. at 87-90.

                The case proceeded to sentencing that same
          date, where Cannon was sentenced to an aggregate
          sentence of 34 to 68 months of imprisonment
          followed by 12 years of probation. Post-sentence
          motions were filed on October 10, 2006; and the
          sentence was vacated by order entered October 18,
          2006. On October 27, 2006, the trial court
          re-sentenced Cannon to an aggregate sentence of 29
          to 59 months of imprisonment followed by 12 years
          of probation. This timely appeal followed.


          [Footnote 1] 18 Pa.C.S.A. § 6312(d).

          [Footnote 2] 18 Pa.C.S.A. § 902, 5902(b).

          [Footnote 3] 18 Pa.C.S.A. § 902, 3126(a)(8).

          [Footnote 4] 18 Pa.C.S.A. § 6301(a)(1).

Commonwealth v. Cannon, 954 A.2d 1222, 1223-1225 (Pa.Super. 2008),

appeal denied, 964 A.2d 893 (Pa. 2009) (footnote 5 omitted).       On



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August 6, 2008, this court affirmed the judgment of sentence.            Id.     On

January 22, 2009, our supreme court denied appellant’s petition for

allowance of appeal.

       Appellant was paroled in 2011. He completed his state parole and was

being supervised by the Pennsylvania Board of Probation and Parole

(“the Board”) on the 12-year consecutive period of probation. According to

his   probation   officer,   appellant   was   uncooperative   and   unwilling   to

participate in sex offender treatment, which was a condition of his probation.

Appellant was unsuccessfully discharged from the sex offenders program on

or about January 25, 2015. On January 30, 2015, the Board filed a petition

to find appellant in technical violation of his probation, and a detainer was

lodged.

       A probation violation hearing was held on April 27, 2015.        Appellant

was found to be in violation of his probation and was sentenced to 34 to

68 months’ incarceration, followed by 14 years of probation. The trial court

granted appellant’s motion to modify or reduce sentence; and on May 22,

2015, following a hearing, the trial court sentenced appellant to 24 to

68 months’ incarceration, followed by 14 years of probation.

       This timely appeal followed. On June 5, 2015, appellant was ordered

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b) within 21 days. On June 11, 2015, counsel for appellant

filed a statement of intent to file an Anders brief in lieu of filing a concise



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statement, pursuant to Rule 1925(c)(4). On June 16, 2015, the trial court

filed a Rule 1925(a) opinion, directing this court to the sentencing hearings

of April 27, 2015 and May 22, 2015, as providing the reasons for its

sentence.

      Appellant raises a single issue for this court’s review, challenging the

discretionary aspects of sentencing:

            Does imposition of a state prison sentence for a
            [probation] violation in a Child Pornography case
            raise a substantial question that the Sentencing Code
            was violated by the trial Court, who imposed the
            sentence after a decision that the Appellant had
            failed to meet terms of the Court’s [probation]
            supervision by failure to successfully complete sex
            offender treatment? Is such a sentence an abuse of
            the Judge’s discretion?

Appellant’s brief at 3.

      Counsel having filed a petition to withdraw, we reiterate that “[w]hen

presented with an Anders brief, this court may not review the merits of the

underlying issues without first passing on the request to withdraw.”

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

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)

(en banc) (citation omitted).

            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;



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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.

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

      Upon review, we find that Attorney Bruno has complied with all of the

above requirements. In addition, Attorney Bruno served appellant a copy of

the Anders brief, and advised him of his right to proceed pro se or hire a

private attorney to raise any additional points he deemed worthy of this

court’s review.     Appellant has not responded to counsel’s motion to

withdraw. As we find the requirements of Anders and Santiago are met,

we will proceed to the issues on appeal.

      Essentially, appellant is arguing that his technical violations of

probation by failing to participate in sex offender treatment did not support a

state sentence. “The imposition of a sentence of total confinement after the

revocation of probation for a technical violation, and not a new criminal

offense, implicates the ‘fundamental norms which underlie the sentencing

process.’”   Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.

2010), appeal denied, 13 A.3d 475 (Pa. 2010), quoting Commonwealth



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v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). “Additionally, a substantial

question that the sentence was not appropriate under the Sentencing Code

may occur even where a sentence is within the statutory limits.” Id., citing

Commonwealth v. Titus, 816 A.2d 251 (Pa.Super. 2003). We determine

appellant has raised a substantial question regarding the appropriateness of

his sentence, and will proceed to review the merits of his claim.2

              Our standard of review is well-settled.      We have
              explained:

                    The imposition of 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. 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,


2
    Pa.R.A.P. 2119(f) states:

              (f)   Discretionary aspects of sentence.             An
                    appellant who challenges the discretionary
                    aspects of a sentence in a criminal matter shall
                    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. The statement shall immediately
                    precede the argument on the merits with
                    respect to the discretionary aspects of
                    sentence.

Even in the Anders context, the Rule 2119(f) statement is required with
respect to discretionary sentencing challenges. Commonwealth v. Wilson,
578 A.2d 523, 525 (Pa.Super. 1990). Appellant has complied with this
requirement. (Appellant’s brief at 3.)


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

           Commonwealth v. Simmons, 56 A.3d 1280, 1283-
           84 (Pa.Super.2012).

                 In determining whether a sentence is
                 manifestly excessive, the appellate court
                 must give great weight to the sentencing
                 court’s discretion, as he or she is in the
                 best position to measure factors such as
                 the nature of the crime, the defendant’s
                 character, and the defendant’s display of
                 remorse, defiance, or indifference.

           Commonwealth v. Mouzon, 828 A.2d 1126, 1128
           (Pa.Super.2003).

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015). See also Commonwealth v. Cartrette,

83 A.3d 1030 (Pa.Super. 2013) (en banc) (this court’s scope of review in an

appeal from a revocation sentencing includes discretionary sentencing

challenges).

           Upon revoking probation, a sentencing court may
           choose from any of the sentencing options that
           existed at the time of the original sentencing,
           including incarceration.    42 Pa.C.S.A. § 9771(b).
           “[U]pon revocation [of probation] . . . the trial court
           is limited only by the maximum sentence that it
           could have imposed originally at the time of the
           probationary sentence.”        Commonwealth v.
           Infante, 63 A.3d 358, 365 (Pa.Super.2013)
           (internal quotation marks and citations omitted).
           However, 42 Pa.C.S.A. § 9771(c) provides that once
           probation has been revoked, a sentence of total
           confinement may only be imposed if any of the
           following conditions exist:




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

           (2)   the conduct of the defendant indicates
                 that it is likely 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).

Id. at 1044. We also note that the sentencing guidelines do not apply to

sentences imposed as the result of probation revocations. Commonwealth

v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001) (citations omitted).

     Instantly, both Section 9771(c)(2) and (3) apply. The record indicates

that appellant did not complete sex offender classes while incarcerated.

(Notes of testimony, 5/22/15 at 14.)      Once released, while on probation,

appellant continued to refuse to cooperate with treatment.    Appellant was

discharged in 2012 from a program called Human Services in Downingtown,

after failing a polygraph examination. (Notes of testimony, 4/27/15 at 25.)

Appellant was referred to a different treatment provider, Pennsylvania

Forensics, but continued to arrive late or miss appointments without

legitimate excuse. (Id. at 26-27.) In August 2014 appellant failed another

polygraph. (Id. at 6.) Dr. David Holden stated that in his opinion, appellant

is not amenable to treatment. Dr. Holden described appellant’s demeanor in

group therapy as “oppositional, argumentative.”     (Id. at 5.)   Dr. Holden

recommended appellant be discharged because he did not want to



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meaningfully participate in a productive manner. (Id. at 5-6.) Dr. Holden

testified, “[I]n my opinion the reason that -- the largest reason, I guess I

would have characterized it that way, is [appellant] was discharged from

treatment was his presentation in treatment.        His oppositional, his defiant

nature, his refusal to take feedback.          His, basically, his refusal to be

treated.” (Id. at 22-23.)

      As the trial court remarked,

            . . . almost five years you didn’t engage in any
            treatment there [(while in prison)]. And then, upon
            your parole, you were discharged from two
            additional treatment programs. That’s the reality.
            Whatever the excuse is that you run through your
            head that makes it difficult for you to complete this,
            are your own reasons, but not satisfactory to the
            Court.

Notes of testimony, 5/22/15 at 15.            “So you were paroled after your

statutory maximum.     And then you could not avoid going to treatment at

that point, and yet the treatments never went well. The record was replete

with people trying to bend over backwards to help you get treatment.” (Id.

at 16.)

      Appellant has been classified a sexually violent predator, and his

continuing refusal to accept sex offender treatment both increases the

likelihood of re-offense and indicates a lack of respect for the court and for

the conditions of his supervision. As Attorney Bruno observes,

            Counsel believes that this sentence is long, but the
            Court viewed it as warranted given the failure, over
            a course of almost ten years, to engage in sexual


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             offender treatment, both because failure to comply
             with treatment undermines the authority of the
             Court, and a failure to engage in such a way gives
             the Court no confidence that further crimes of this
             nature will not be committed. The reasons were
             explained as a sanctioning [of] a defendant who, if
             he has refused to comply with the order of the Court,
             posed a threat to the community as well as having
             thwarted the Court’s orders.

Appellant’s brief at 10-11.

      For the reasons discussed above, we determine that appellant’s issues

on appeal are wholly frivolous and without merit.     Furthermore, after our

own independent review of the record, we are unable to discern any

additional   issues   of   arguable   merit.    Therefore,   we      will   grant

Attorney Bruno’s petition to withdraw and affirm the judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2016




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