J-S22035-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
KRISTINA M. GARRISON,                     :
                                          :
                Appellant                 :   No. 1476 MDA 2015

           Appeal from the Judgment of Sentence August 5, 2015,
             in the Court of Common Pleas of Franklin County,
             Criminal Division, at No: CP-28-CR-0001621-2013

BEFORE:     MUNDY, DUBOW, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED MARCH 31, 2016

      Kristina M. Garrison (Appellant) appeals from her August 5, 2015,

judgment of sentence, which the trial court imposed after revoking

Appellant’s probation. In addition, Appellant’s counsel has filed a petition to

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

affirm the judgment of sentence and grant the petition to withdraw.

      In September 2013, Appellant pled nolo contendere in Franklin County

to receiving stolen property and was sentenced to 24 months’ probation.

Since the imposition of her sentence, Appellant has violated the terms of her

probation on four separate occasions. The most recent violation resulted in

Appellant’s re-sentencing which is the subject of the instant appeal.




*Retired Senior Judge assigned to the Superior Court.
J-S22035-16


        On August 5, 2015, Appellant was resentenced after she waived her

right to a Gagnon II1 hearing and admitted she was in violation of her

probation. N.T., 8/5/2015, at 3. At the re-sentencing, the trial court found

Appellant violated her probation by failing to complete the special conditions

of her probation. Id. at 14. The court revoked Appellant’s Franklin County

probation and sentenced her to serve 12 to 24 months’ incarceration in a

state correctional institution.2 On August 24, 2015, Appellant timely filed a

notice of appeal.3

        The following principles guide our review of this matter:

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

1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
    The court determined that Appellant is eligible for the Recidivism Risk
    Reduction Incentive (RRRI) program. See 61 Pa.C.S. §§ 4501–4512.
3
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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J-S22035-16


        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).

        Our Supreme Court has clarified portions of the Anders procedure:

        Accordingly, we hold that in 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.

        Based upon our examination of counsel’s application to withdraw and

Anders brief, we conclude that counsel has complied substantially with the

above requirements.4       Once “counsel has met these obligations, ‘it then

becomes the responsibility of the reviewing court to make a full examination

of the proceedings and make an independent judgment to decide whether

the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 113



4
    Appellant has not responded to counsel’s application to withdraw.



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A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n.

5).

        According to counsel, Appellant wishes to challenge the discretionary

aspects of her sentence: “Did the trial court abuse its discretion when it

sentenced [Appellant] to a sentence of 12 months to 24 months in a [s]tate

[c]orrectional [i]nstitution?”5 Appellant’s Brief at 7.

        It is well settled that, with regard to the discretionary aspects of
        sentencing, there is no automatic right to appeal.

           Before [this Court may] reach the merits of [a challenge to
           the discretionary aspects of a sentence], we must engage
           in a four part analysis to determine: (1) whether the
           appeal is timely; (2) whether Appellant preserved his
           issue; (3) whether Appellant’s brief includes a concise
           statement of the reasons relied upon for allowance of
           appeal with respect to the discretionary aspects of
           sentence; and (4) whether the concise statement raises a
           substantial question that the sentence is appropriate under
           the sentencing code.... [I]f the appeal satisfies each of
           these four requirements, we will then proceed to decide
           the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

        Instantly, Appellant has satisfied the first requirement by timely filing

a     notice   of   appeal.   To   satisfy   the   second   requirement   regarding

preservation, we point out that “[o]bjections to the discretionary aspects of

5
   “[I]t is within our scope of review to consider challenges to the
discretionary aspects of an appellant’s sentence in an appeal following a
revocation of probation.” Commonwealth v. Ferguson, 893 A.2d 735, 737
(Pa. Super. 2006).


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a sentence are generally waived if they are not raised at the sentencing

hearing or in a motion to modify the sentence imposed.” Commonwealth v.

Griffin, 65 A.3d 932, 935 (Pa. Super. 2013).

      Appellant did not file a motion to modify the sentence imposed.

Additionally, Appellant did not raise this issue at her sentencing hearing.

See N.T., 8/5/2015. Therefore, Appellant has not preserved this issue, and

it is waived. An issue that is waived is frivolous. See Commonwealth v.

Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding that when an issue

has been waived, “pursuing th[e] matter on direct appeal is frivolous”).

      Consequently, we agree with counsel that this appeal is wholly

frivolous.   Moreover, we have conducted “a full examination of the

proceedings” and conclude that “the appeal is in fact wholly frivolous.”

Flowers, 113 A.3d at 1248. Thus, we affirm the judgment of sentence and

grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/31/2016




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