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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
ELLEN RENEE BURNS,                          :
                                            :
                          Appellant         :      No. 2044 MDA 2014

            Appeal from the Judgment of Sentence October 20, 2014
                 In the Court of Common Pleas of York County
               Criminal Division No(s).: CP-67-CR-0007158-2012

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED SEPTEMBER 10, 2015

        Appellant, Ellen Renee Burns, appeals from the judgment of sentence

entered in the York County Court of Common Pleas following the revocation

of her intermediate punishment (“IP”) sentence.            She challenges the

discretionary aspects of her sentence.          Appellant’s counsel has filed a

petition to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967). We affirm and grant counsel’s petition to withdraw.

        The facts are unnecessary to our disposition. Appellant pleaded guilty

to theft by deception1 on February 13, 2013. On the same date, the court

imposed a sentence of five years’ IP with six months of electronically

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3922.
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monitored house arrest. Appellant was ordered to pay restitution and court

fees, undergo a mental health evaluation, and complete one hundred hours

of community service.      N.T. Sentencing Hr’g, 2/13/13, at 11.         Appellant

violated her IP sentence when she was charged with nine felony counts of

theft. N.T. IP Violation (“IPV”) Hr’g, 8/4/14, at 2. At the IPV hearing, the

court ordered a presentence investigation report (“PSI”) and scheduled an

IPV sentencing hearing for October 20, 2014.          Following the October 20th

hearing, the court sentenced Appellant to fifteen to thirty months’

imprisonment with credit for 161 days of time served. N.T. IVP Sentencing

Hr’g, 10/20/14, at 7.

     Appellant filed a motion for reconsideration of her sentence on October

30, 2014, requesting that the court “consider imposing a sentence requiring

a period of less incarceration, specifically one that might enable her to

remain in York County Prison.” Mot. for Recons. of Sentence, 10/30/14, at 2

(unpaginated).   In support of her request, Appellant averred that she had

two minor children and was in need of medical treatment for a type of

cancer   that   was   affecting   her   nose.   Id.      Appellant’s   motion   for

reconsideration did not raise a discretionary aspect of sentencing claim. The

court denied the motion on November 5, 2014. This timely appeal followed.




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The trial court ordered a Pa.R.A.P. 1925(b) statement on December 5, 2014.

In lieu of the 1925(b) statement, counsel filed an Anders brief.2

        As a prefatory matter, we examine whether counsel complied with the

requirements of Anders, supra, as clarified by the Pennsylvania Supreme

Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). “When

faced with a purported Anders brief, this Court may not review the merits of

any possible underlying issues without first examining counsel’s request to

withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super.

2008) (citation omitted).      This Court must examine the Anders brief to

ensure that it has satisfied the following requirements:

           [I]n the Anders brief that accompanies court-appointed
           counsel’s petition to withdraw, counsel 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, 978 A.2d at 361.

        Instantly, counsel’s application for leave to withdraw and appellate

brief comply with the technical requirements of Anders and Santiago. See

id. The application and brief set forth a discretionary aspect of sentencing

issue, cite relevant legal authority, and conclude the appeal is frivolous. See


2
    Pa.R.A.P. 1925(c)(4).



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id. The record also establishes Appellant was served a copy of the brief and

application, which advised her of the right to retain new counsel, or proceed

pro se and raise additional issues to this Court. See id.

      Once the requirements attendant to counsel’s request to withdraw are

satisfied, a reviewing court will examine the proceedings and render an

independent judgment of whether the appeal is in fact wholly frivolous.

Wimbush, 951 A.2d at 382.

      The Anders brief raises the following issues for our review:

         I. Whether the trial court abused its discretion by revoking
         and resentencing the Appellant, thus imposing an unduly
         harsh and manifestly excessive sentence?

         II. Whether the Appellant was entitled to credit for the
         time she served on house arrest pursuant to her original
         [IP] sentence?

Appellant’s Brief at 5.

      This Court has stated that

         [c]hallenges to the discretionary aspects of sentencing do
         not entitle an appellant to appellate review as of right.
         Prior to reaching the merits of a discretionary sentencing
         issue:

            [W]e conduct 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, 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).



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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some

citations omitted and emphasis added). The failure to raise a challenge to

the discretionary aspects of a sentence in the trial court “results in a waiver

of all such claims.”   Commonwealth v. Felder, 75 A.3d 513, 515 (Pa.

Super. 2013) (citation omitted).

         [T]he Rule 2119(f) statement must specify where the
         sentence falls in relation to the sentencing guidelines and
         what particular provision of the Code is violated (e.g., the
         sentence is outside the guidelines and the court did not
         offer any reasons either on the record or in writing, or
         double-counted factors already considered). Similarly, the
         Rule 2119(f) statement must specify what fundamental
         norm the sentence violates and the manner in which it
         violates that norm (e.g., the sentence is unreasonable or
         the result of prejudice because it is 500 percent greater
         than the extreme end of the aggravated range).

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).

      Instantly, Appellant timely appealed and included a short Pa.R.A.P.

2119(f) statement in her brief:

         A substantial sentencing question is presented concerning
         the trial court’s imposition of a fifteen (15) to thirty (30)
         month sentence after being found in violation of her
         original [IP] sentence.       The trial court found that
         Appellant’s receipt of new criminal charges in another
         county was a basis to revoke the Appellant’s original [IP]
         sentence and resentence her to an aggravated range
         sentence in a state correctional institution. Therefore, this
         Honorable Court’s review of the sentencing issues
         presented by this appeal is appropriate.

Appellant’s Brief at 4. Although the statement fails to comply with the well-

settled requirements of Goggins, supra, the Commonwealth has not


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objected to a deficient Rule 2119(f) statement.     Thus, we decline to find

waiver on that ground.    See Commonwealth v. Dodge, 77 A.3d 1263,

1271 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014)..

      As a prefatory matter, we consider whether the issues are waived.

Instantly, the court sentenced Appellant on October 20, 2014. Appellant did

not challenge the discretionary aspect of her sentence with the trial court at

the sentencing hearing or in her motion for reconsideration of sentence.

See Appellant’s Mot. for Recons. of Sentence, 10/30/14, at 1-2. Appellant

only asked the court to impose a sentence of less incarceration.      See id.

Because Appellant did not preserve the excessive sentence claim,3 we need

not resolve the substantive merits.       See Evans, 901 A.2d at 533.

Therefore, Appellant waived her challenge to the discretionary aspects of her

sentence. See id.

      A review of the record reveals no other meritorious issue that could

provide relief.




3
  We note that a claim of excessiveness can raise a substantial question as
to the appropriateness of a sentence under the Sentencing Code, even if the
sentence is within the statutory limits. Commonwealth v. Mouzon, 812
A.2d 617, 624 (Pa. 2002); see also Dodge, 77 A.3d at 1271. However,
bald allegations of excessiveness do not raise a substantial question.
Mouzon, 812 A.2d at 627; Commonwealth v. Fisher, 47 A.3d 155, 159
(Pa. Super. 2012). We need not, however, examine whether Appellant’s
excessive sentence claim raises a substantial question because it was not
raised before the trial court. See Evans, 901 A.2d at 533-34.



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     Judgment of sentence affirmed.   Counsel’s petition to withdraw

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/2015




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