J-S42022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

COREY JAMES KITTLE

                            Appellant                  No. 1403 MDA 2016


              Appeal from the Judgment of Sentence August 8, 2016
                In the Court of Common Pleas of Luzerne County
               Criminal Division at No(s): CP-40-CR-0002878-2014
                                           CP-40-CR-0004255-2013


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                     FILED SEPTEMBER 27, 2017

       Corey James Kittle appeals from the August 8, 2016 judgment of

sentence entered in the Luzerne County Court of Common Pleas following his

revocation of probation. Kittle’s appellate counsel has filed an Anders1 brief

and a petition to withdraw from representation.          We affirm and grant

counsel’s petition to withdraw.

       On July 8, 2014, Kittle pled guilty at docket CP-40-CR-0004255-2013

(“Docket 4255”) to two counts of driving under the influence of alcohol or a

controlled substance (“DUI”), one count of fleeing or attempting to elude an

officer, and one count of driving while his operating privilege was suspended


____________________________________________


       1
           Anders v. California 386 U.S. 738 (1967).
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or revoked.2 On February 5, 2015, the trial court sentenced Kittle to 2 to 4

months’ incarceration and 1 year probation for the conviction for fleeing or

attempting to elude an officer. For the DUI convictions, which merged for

sentencing purposes, the trial court sentenced Kittle to a concurrent 48

hours’ to 6 months’ incarceration.

       On March 23, 2015, Kittle pled guilty at docket CP-40-CR-0002878-

2014 (“Docket 2878”) to defiant trespass and harassment.3              On April 6,

2015, the trial court sentenced Kittle to 1 year probation for the defiant

trespass conviction to run consecutive to Kittle’s sentence at docket CP-40-

CR-0001399-2014 (“Docket 1399”),4 and a consecutive 90 days of probation

for the harassment conviction.

       On March 16, 2016, the Commonwealth filed a petition for the

revocation of Kittle’s probation at Dockets 4255 and 2878. In the petition,

the Commonwealth alleged that Kittle had violated the conditions of his

probation based on his arrest for stalking, terroristic threats, criminal

mischief, resisting arrest, driving while his operating privileges were

suspended or revoked, and institutional vandalism.       The trial court held a
____________________________________________


       2
         75 Pa.C.S. §§ 3802(a)(1), 3802(a)(2), 3733(a), and 1543(a),
respectively.
       3
           18 Pa.C.S. §§ 3503(b)(1)(i) and 2709(a)(3), respectively.
       4
        At Docket 1399, the trial court sentenced Kittle to 2 to 4 months’
incarceration and 1 year probation for a simple assault and a concurrent
term of 15 to 30 days’ incarceration for possession of marijuana.



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revocation hearing on June 3, 2016. At the hearing, the trial court asked

Kittle if the victim of the current violation was the same victim as in the prior

simple assault case.    Kittle denied that it was the same victim.        At the

conclusion of the revocation hearing, the trial court revoked Kittle’s

probation and sentenced him to 1 year probation on the conviction for

fleeing or attempting to elude an officer at Docket 4255; 1 year probation

for defiant trespass at Docket 2878, to run concurrent with Kittle’s sentence

at Docket 4255; and 90 days’ probation for harassment at Docket 2878, to

run consecutive to the defiant trespass sentence.

      Five days later, on June 8, 2016, the Commonwealth filed a post-

sentence motion, claiming that Kittle’s new arrest included the same victim

as the victim from the previous simple assault case.       The Commonwealth

argued that, because Kittle had lied and purposely misled the trial court on a

material issue, the trial court should modify Kittle’s sentence. The trial court

held a hearing on June 14, 2016, and on July 28, 2016, granted the

Commonwealth’s post-sentence motion.

      On August 8, 2016, the trial court resentenced Kittle to 6 to 12

months’ incarceration for fleeing or attempting to elude an officer at Docket

4255; a consecutive 3 to 6 months’ incarceration for defiant trespass at

Docket 2878; and a consecutive 90 days of probation for harassment at

Docket 2878. Kittle timely appealed.




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       Because counsel has filed a petition to withdraw pursuant to Anders

and its Pennsylvania counterpart, Santiago,5 we must address counsel’s

petition     before   reviewing     the    merits   of   Kittle’s   underlying    claim.

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

first address whether counsel’s petition to withdraw satisfies the procedural

requirements of Anders. To be permitted to withdraw, counsel must:

            1) petition the court for leave to withdraw stating that,
            after making a conscientious examination of the record,
            counsel has determined that the appeal would be frivolous;
            2) furnish a copy of the brief to the defendant; and 3)
            advise the defendant that he or she has the right to retain
            private counsel or raise additional arguments that the
            defendant deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc).

       Here, counsel has stated that after a conscientious examination of the

record, counsel believes this appeal would be wholly frivolous.                  Pet. to

Withdraw, 4/25/17, at 1. Counsel furnished a copy of the Anders brief to

Kittle, as well as a letter advising Kittle that he could seek new counsel or

proceed pro se and “fil[e] a supplemental brief . . . raising any issues which

you feel have merit.”        Ltr. to Kittle, 5/1/17.     We conclude that counsel’s

petition to withdraw complies with the procedural dictates of Anders.




____________________________________________


       5
           Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).



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      We   next    address    whether    counsel’s   Anders   brief   meets   the

requirements established by the Pennsylvania Supreme Court in Santiago.

The 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, 978 A.2d at 361.

      Counsel’s brief provided a summary of the procedural history and the

facts with appropriate citations to the record. Anders Br. at 1-3. Counsel’s

brief states that she conducted a thorough review of the record and

determined that any appeal would be frivolous, and set forth her reasons for

that conclusion.    Id. at 3, 5-6.      Accordingly, counsel has substantially

complied with the requirements of Anders and Santiago.

      Kittle has not filed a pro se brief or a counseled brief with new,

privately-retained counsel.    We, therefore, review the issue raised in the

Anders brief.

      On appeal, Kittle argues that “the trial court abused its discretion when

it imposed a sentence, following revocation of probation, for a period of 9 to

18 months followed by 90 days of probation[.]” Anders Br. at 1.




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      Kittle is raising a challenge to the discretionary aspects of his

sentence.    “Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right.”   Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super. 2011). Before we address such a challenge, we

determine:

         (1) whether the appeal is timely; (2) whether [a]ppellant
         preserved his issue; (3) whether [a]ppellant’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 [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

      While Kittle has timely appealed and he has included a concise

statement of reasons relied upon for allowance of appeal in his brief, he has

failed to preserve his issue for appeal.        Kittle did not challenge the

discretionary aspects of his sentence in a post-sentence motion or at the

time of sentencing. See Commonwealth v. Lamonda, 52 A.3d 365, 371

(Pa.Super. 2012) (“Issues challenging the discretionary aspects of a

sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings.”) (quotation

omitted). Kittle has, therefore, waived his challenge.

      Further, Kittle has failed to raise a substantial question for our review.

A substantial question exists where a defendant raises a “plausible argument



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that the sentence violates a provision of the [S]entencing [C]ode or is

contrary    to   the    fundamental   norms    of   the   sentencing   process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013)

(quotation omitted).      Kittle’s claim that the trial court “should not have

imposed a sentence of incarceration following the revocation of probation,”

Anders Br. at 3, does not explain how the sentence violates the sentencing

code or is contrary to the fundamental norms of the sentencing process.

     Even if Kittle had preserved his claim and raised a substantial

question, we would conclude his claim lacks merit. The trial court found that

“the sentence imposed was within the sound discretion of this Court based

upon the gravity scores of the committed offenses and [Kittle]’s actions in

not being truthful to the Court during the revocation hearing.”           Opinion,

3/10/17, at 4-5.       The trial court further found that Kittle’s sentence was

within the Sentencing Guidelines and that the trial court had discretion to

impose a consecutive, rather than a concurrent, sentence. Id. Additionally,

during the resentencing hearing, the trial court stated its reasons for the

sentence imposed:

           [W]e just keep coming here from a long, long time ago
           when you decided you knew there was a capias and I think
           you stayed home for Christmas and then turned yourself in
           to where you just do what you want. A self-help method
           with regard to so much of this.

              You had parole. I said, look, here’s the bottom line,
           and here we come back again in the same venue. And this
           is a pretty thick file for a few charges that should be long
           over and done. . . . We’ve been dealing with this since --


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         back in ’14. My notes go all the way back to ’14 in this
         file.

N.T., 8/8/16, at 6, 8.

      We conclude that the trial court did not abuse its discretion.

Therefore, even if Kittle had preserved this issue for our review, he would

not be entitled to relief.

      Judgment of sentence affirmed.       Petition for leave to withdraw as

counsel granted.


      Judge Olson joins the memorandum.


      President Judge Emeritus Ford Elliott concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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