J-S23015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
    NICOLE WIMBERLY,                        :
                                            :
                      Appellant             :   No. 3711 EDA 2017

       Appeal from the Judgment of Sentence Entered October 27, 2017
    In the Court of Common Pleas of Northampton County Criminal Division
                      at No(s): CP-48-CR-0001931-2015


BEFORE:     SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                          FILED JANUARY 09, 2019

       This matter returns to us following remand. Appellant, Nicole Wimberly,

appeals from the judgment of sentence entered on October 27, 2017.1

Additionally, Appellant’s counsel has filed a petition to withdraw and an

Anders2 brief.      After review, we grant counsel’s petition to withdraw and

affirm the judgment of sentence.



*    Former Justice specially assigned to the Superior Court.

1 As we noted in our prior memorandum, Commonwealth v. Wimberly,
193 A.3d 1061, 3711 EDA 2017 (Pa. Super. filed June 8, 2018) (unpublished
memorandum), Appellant purported to appeal from an order entered on
November 1, 2017. Notice of Appeal, 11/2/17. However, it is evident that
Appellant is challenging the judgment of sentence that was entered on October
27, 2017, following the revocation of her probation. We have corrected the
caption accordingly
2 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009) (enumerating the procedure through
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       The record reveals that on August 20, 2015, Appellant pled guilty to one

count of access device fraud graded as a third-degree felony.3 The trial court

sentenced Appellant to a term of one to three months of incarceration followed

by six years of probation. Sentencing Order, 8/20/15. On June 30, 2016,

Appellant was accused of violating her probation by failing to: maintain a

verifiable address; remain drug free; report to her probation officer; and make

payments on her court costs, fees, and restitution.     Petition for Review of

Probation, 6/30/16. On August 12, 2016, Appellant was found in violation of

her probation, and the trial court resentenced her to a term of four to twelve

months of incarceration followed by five years of probation. The trial court

granted Appellant parole on December 7, 2016. However, on April 13, 2017,

Appellant was accused of violating her probation and parole due to, inter alia,

new criminal charges filed on April 10, 2017. On October 27, 2017, the trial

court revoked Appellant’s probation and parole and resentenced her on the

probationary sentence to a term of two and one-half to five years of

incarceration.

       Despite being represented by Timothy Prendergast, Esquire, Appellant

filed a pro se notice of appeal on November 2, 2017. Apparently unaware of

the pro se appeal, on November 3, 2017, Attorney Prendergast filed a post-




which counsel may withdraw from representation on direct appeal where there
are no meritorious issues and an appeal would be frivolous).

3   18 Pa.C.S. § 4106(a)(1)(ii).
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sentence motion for reconsideration of Appellant’s sentence claiming that the

duration of the sentence was “unduly harsh” and “shocked the conscience.”

Post-sentence Motion, 11/3/17.       Nevertheless, because an appeal was

pending, the trial court did not rule on the counseled post-sentence motion,

and it ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant failed to respond.

      On March 6, 2018, Attorney Prendergast filed an appellate brief in this

Court on behalf of Appellant. In the brief, counsel averred that the sentence

imposed by the trial court was not an abuse of discretion. Appellant’s Brief at

11.   Counsel then stated: “Therefore, Appellant files this brief without

argument as to the merits to an appeal in the above-captioned matter.” Id.

      Counsel’s actions were improper.      The trial court directed Attorney

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

pursuant to Pa.R.A.P. 1925(b); if counsel concluded that Appellant had no

meritorious issues to support an appeal, he should have filed a statement

indicating his intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

Counsel pursued neither of these options and instead effectively abandoned

Appellant on her appeal.       After review, we concluded that Attorney

Prendergast’s failure to respond to the trial court’s Pa.R.A.P. 1925(b) order

was per se ineffective assistance of counsel pursuant to Pa.R.A.P. 1925(c)(3).

Commonwealth v. Wimberly, 193 A.3d 1061, 3711 EDA 2017 (Pa. Super.




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filed June 8, 2018) (unpublished memorandum).            On June 8, 2018, we

remanded this matter for Attorney Prendergast to comply with Rule 1925. Id.

         On September 21, 2018, counsel filed a motion for leave to file a

statement in lieu of a Pa.R.A.P. 1925(b) statement nunc pro tunc in the trial

court.     In an order filed that same day, the trial court granted counsel’s

motion, and counsel filed a statement in lieu of a Pa.R.A.P. 1925(b) statement.

In this motion, counsel averred that there were no meritorious issues to raise

on appeal.      Despite Attorney Prendergast’s failure to label it as such, we

concluded that counsel’s filing was a Pa.R.A.P. 1925(c)(4) statement

indicating his intent to file an Anders brief. On November 2, 2018, counsel

filed an Anders brief in our Court, and on November 19, 2018, counsel filed

a petition to withdraw as counsel.

         Before we address the questions raised in the Anders brief, we must

resolve Attorney Prendergast’s request to withdraw.         Commonwealth v.

Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural

and briefing requirements imposed upon an attorney who seeks to withdraw

on direct appeal. The procedural mandates are that 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.

Id. at 1032 (citation omitted).

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      In this case, those directives were satisfied.     Within the petition to

withdraw, counsel averred that he conducted a conscientious review of the

record and pertinent legal research. Following that review, counsel concluded

that the present appeal is frivolous. Counsel sent Appellant a copy of the

Anders brief and petition to withdraw, as well as a letter, a copy of which is

attached to the petition to withdraw. In the letter, counsel advised Appellant

that she could represent herself or that she could retain private counsel.

Appellant has not filed any additional documents with this Court.

      We now examine whether the Anders brief satisfies the Supreme

Court’s dictates in Santiago, which provide 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago.      The brief sets forth the

procedural history of this case, outlines pertinent case authority, and

discusses counsel’s conclusion that the appeal is frivolous. We conclude that

the procedural and briefing requirements for withdrawal have been met.

Counsel for Appellant has indicated that, after a review of the record, there

are no issues to be raised in this appeal.     Anders brief at 10.     However,

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counsel does address the following two two issues that arguably could support

an appeal: 1) Is Appellant entitled to a recalculation of credit for time served;

and 2) Is Appellant entitled to have the restitution portion of her sentence

withdrawn due to her inability to pay it. Anders brief at 10.

      The first issue presents a challenge to the calculation of credit for time

Appellant has already served. However, it is well settled that the calculation

of time-served is determined by the Pennsylvania Department of Corrections

(“DOC”), and any challenge to the DOC’s computation of time must be brought

in an original action in the Commonwealth Court. Commonwealth v. Perry,

563 A.2d 511, 512-513 (Pa. Super. 1989) (citing Wilson v. Commonwealth,

Bureau of Correction, 480 A.2d 392, 393 (Pa. Cmwlth. 1984)). Accordingly,

this issue is not properly before our Court.

      Next, Appellant’s counsel asks if Appellant is entitled to have the

restitution portion of her sentence withdrawn.         Appellant claims that she

should not be required to pay the outstanding court-ordered restitution of

approximately $22,000 because she is unable to pay it. Anders brief at 12.

First, we note that this is not a challenge to the trial court’s authority to impose

restitution, which would implicate the legality of Appellant’s sentence. See

Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006) (stating that

when the trial court’s authority to impose restitution is challenged, it is a

challenge to the legality of the sentence imposed). Rather, this issue presents

a challenge to the amount of restitution and Appellant’s ability to pay it, which


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is a challenge to the discretionary aspects of Appellant’s sentence.       See

Commonwealth v. Walker, 666 A.2d 301, 307 (Pa. Super. 1995) (stating

that challenges alleging that a sentence of restitution is excessive under the

circumstances of the case are challenges to the discretionary aspects of

sentencing).

        Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right, and this challenge is properly viewed as a

petition for allowance of appeal. 42 Pa.C.S. § 9781(b); Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987); Commonwealth v. Sierra, 752 A.2d

910 (Pa. Super. 2000). An appellant challenging the discretionary aspects of

her sentence must satisfy a four-part test.        We evaluate: (1) whether

Appellant filed a timely notice of appeal; (2) whether Appellant preserved the

issue at sentencing or in a motion to reconsider and modify sentence; (3)

whether Appellant’s brief includes a concise statement of the reasons relied

upon for allowance of appeal; and (4) whether the concise statement raises a

substantial question that the sentence is appropriate under the Sentencing

Code.     Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super.

2013). An appellant must articulate the reasons the sentencing court’s actions

violated the sentencing code. Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010); Sierra, 752 A.2d at 912-913.

        In the instant case, Appellant filed a timely appeal. However, although

counsel raised a sentencing claim in the post-sentence motion, we conclude


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that the issue was not properly preserved. As discussed above, Appellant filed

an appeal with this Court before the trial court had the opportunity to address

the post-sentence motion. Even if the trial court addressed the post-sentence

motion, the issue raised in the post-sentence motion is not remotely related

to the order for restitution. As noted, the counseled post-sentence motion

challenged only the duration of Appellant’s sentence. Post-sentence Motion,

11/3/17. Additionally, although restitution was discussed during the Gagnon

II hearing,4 N.T., 10/27/17, at 11-12, after the trial court revoked Appellant’s

probation and imposed sentence, Appellant raised no objection to the amount

of restitution.      Consequently, Appellant waived this challenge to the

discretionary aspects of her sentence.       See Cartrette, 83 A.3d at 1042

(“[I]ssues 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. Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.”).

          Furthermore,   because   Appellant’s   sentencing   claim   concerning

restitution is waived, we deem the issue frivolous in our Anders analysis.

Commonwealth v. Tukhi, 149 A.3d 881, 888-889 (Pa. Super. 2016)

(holding that in conducting an analysis under Anders, an issue that is waived

is also frivolous) (citation omitted). Accordingly, Appellant is entitled to no

relief.


4   Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).
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      As we have concluded that counsel has met the technical obligations to

withdraw, we must now “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 A.3d 1246, 1248 (Pa. Super.

2015) (citation omitted).    However, after our independent review of the

record, we conclude that there are no meritorious issues and an appeal would

be frivolous. Accordingly, we grant Appellant’s counsel’s petition to withdraw,

and we affirm the judgment of sentence.

      Petition of counsel to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/19




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