J-S22032-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                Appellee                 :
                                         :
                     v.                  :
                                         :
RAYMOND ANTHONY GATES, JR.,              :
                                         :
                Appellant                : No. 1716 WDA 2014

    Appeal from the Judgment of Sentence Entered September 9, 2014,
               in the Court of Common Pleas of Erie County,
           Criminal Division, at No(s): CP-25-CR-0001282-2014
                       and CP-25-CR-0002225-2010

BEFORE:     PANELLA, LAZARUS, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED JUNE 03, 2015

      Raymond Anthony Gates, Jr. (Appellant) appeals from the judgment of

sentence imposed after the revocation of his probation/parole and his

sentence imposed after pleading guilty to theft by unlawful taking. Counsel

for Appellant has filed a petition to withdraw as counsel pursuant to Anders

v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We deny counsel’s petition to withdraw, and remand

with instructions.

      The history of this case can be summarized as follows. On September

30, 2010, Appellant pled guilty to burglary; and, on November 17, 2010,

Appellant was sentenced to 11.5 to 23 months’ incarceration to be followed

by 3 years’ probation.      Appellant was paroled on April 12, 2011.     On

December 19, 2012, Appellant’s sentence of parole and probation was


*Retired Senior Judge assigned to the Superior Court.
J-S22032-15


revoked and he was sentenced to 11.5 to 23 months’ incarceration, with

credit for 323 days for time served, to be followed by 3 years of probation.

Appellant was paroled on April 6, 2013.

         On September 9, 2014, Appellant pled guilty at CP-25-CR-0001282-

2014      (1282   of   2014)   to   theft   by    unlawful   taking,   a   third-degree

misdemeanor. He was sentenced to three to twelve months’ incarceration.

On the same day, Appellant’s sentence of parole and probation was revoked,

and he was sentenced to a period of incarceration of fifteen to thirty months

to be served concurrently with his sentence at 1282 of 2014.

         On September 19, 2014, Appellant timely filed a post-sentence

motion.      In that motion, Appellant asserted that the trial court erred in

failing to give Appellant credit for time served. The trial court denied that

motion, and Appellant timely filed a notice of appeal at both docket

numbers.      The trial court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant

timely complied. In his concise statement, Appellant again raised the issue

of trial court error for failing to apply credit for time served.

         Counsel has filed with this Court a petition to withdraw and an Anders

brief.    Thus, before we consider the substance of this appeal, we must

address counsel’s compliance with Anders:

         Direct appeal counsel seeking to withdraw under Anders must
         file a petition averring that, after a conscientious examination of



                                            -2-
J-S22032-15


      the record, counsel finds the appeal to be wholly frivolous.
      Counsel must also file an Anders brief setting forth issues that
      might arguably support the appeal along with any other issues
      necessary for the effective appellate presentation thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant's behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

      This Court’s docket reveals a petition for leave to withdraw as counsel

filed by Attorney Emily E. Merski (Attorney Merski). Attorney Merski avers

that she “has performed a thorough review of all available transcripts,

pleadings and other materials” and that she has included with the petition “a

brief on behalf of the Appellant which addresses the issues involved in this

case which question the sufficiency and weight of the evidence and/or the

other issues of arguable merit in this case, if any.” Petition for Leave to




                                     -3-
J-S22032-15


Withdraw As Counsel, 1/27/2015, at ¶¶ 2-3.1 Counsel has also attached to

the petition a letter addressed to Appellant explaining that she has not

uncovered any meritorious issues to present on appeal.2              Assuming,

arguendo, that despite the aforementioned issues, Attorney Merski has

complied with the technical requirements of Anders, we now consider the

additional requirements set forth in Santiago with respect to the brief itself.

      [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

1
  Instantly, Appellant pled guilty to theft by unlawful taking, which led to the
revocation of his probation or parole. To the extent Appellant appeals from
the plea to theft by unlawful taking, he has waived his right to challenge the
weight or sufficiency of the evidence. Commonwealth v. Pantalion, 957
A.2d 1267, 1271 (Pa. Super. 2008) (“When an appellant enters a guilty plea,
[he] waives her right to “challenge on appeal all non-jurisdictional defects
except the legality of [his] sentence and the validity of [his] plea.”). To the
extent Appellant is appealing from the revocation of probation or parole, he
may only challenge the validity of the revocation proceedings, the legality of
the sentence, and the discretionary aspects of his sentence. See
Commonwealth v. Ortega, 995 A.2d 879, 883-84 (Pa. Super. 2010) (“The
scope of review in an appeal following a sentence imposed after probation
[or parole] revocation is limited to the validity of the revocation proceedings
and the legality of the sentence imposed following revocation.”); see also
Commonwealth v. Catrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc)
(holding that the scope of review from the revocation of probation or parole
includes the discretionary aspects of the sentence).
2
  The certificate of service on the petition to withdraw is concerning. It was
sent to inmate Gregory Dunbar, Jr. at SCI-Camp Hill. Appellant (whose
name is Raymond Gates) is incarcerated at SCI-Forest, where the attached
letter was sent.


                                     -4-
J-S22032-15


      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.

      In her Anders brief, Attorney Merski presents one issue which

arguably supports the appeal: “Whether the Appellant’s sentence is

manifestly excessive, clearly unreasonable       and inconsistent with     the

objectives of the Pennsylvania Sentencing Code.” Anders Brief at 3. In her

statement of reasons the appeal is wholly frivolous pursuant to Santiago,

Attorney Merski avers that this issue, implicating the discretionary aspects of

Appellant’s sentence, is without merit because failing to consider adequately

mitigating factors does not raise a substantial question. Id. at 7.

      However, Appellant did not raise this issue either in his post-sentence

motion or orally at sentencing.      “[W]hen a court revokes probation [or

parole] and imposes a new sentence, a criminal defendant needs to preserve

challenges to the discretionary aspects of that new sentence either by

objecting during the revocation sentencing or by filing a post-sentence

motion.” Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super.

2008). Accordingly, the only issue presented by Attorney Merski on appeal

was waived prior to the filing of the Anders brief.

      Thus, due to counsel’s technical deficiencies in her petition, which

included reviewing issues not available on appeal and potentially sending the




                                     -5-
J-S22032-15


petition to the incorrect person, as well as her failure to explain why the

issue raised in Appellant’s post-sentence motion, failure to give credit for

time served, is without merit, we cannot say that Attorney Merski has

complied with the requirements set forth in Anders/Santiago. Accordingly,

we “deny the petition to withdraw and remand the case with appropriate

instructions … directing counsel either to comply with Anders or file an

advocate’s brief on Appellant’s behalf.” Wrecks, supra.

      Petition to withdraw as counsel denied.        Case remanded with

instructions. Jurisdiction retained.




                                       -6-
