J-S57006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHALITA M. WHITAKER                        :
                                               :
                       Appellant               :   No. 1165 EDA 2018

            Appeal from the Judgment of Sentence March 20, 2018
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0005737-2014

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHALITA M. WHITAKER                        :
                                               :
                       Appellant               :   No. 1166 EDA 2018

            Appeal from the Judgment of Sentence March 20, 2018
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0002199-2010


BEFORE:      PANELLA, J., PLATT, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, J.                           FILED DECEMBER 10, 2018

       Shalita Whitaker appeals from the judgments of sentence entered after

the trial court revoked her separate sentences of parole and probation. She

contends the court’s aggregate sentence of imprisonment of 1½ to 4 years is


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   Retired Senior Judge assigned to the Superior Court.
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unduly harsh and excessive. Also, her court-appointed counsel, Patrick J.

Connors, Esquire, has filed a petition seeking leave to withdraw pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009). We affirm and grant Attorney Connors

permission to withdraw.

     Whitaker pled guilty to robbery and conspiracy to commit robbery in

2010 at docket number 2199 of 2010. The court sentenced her to a term of

imprisonment of six to twenty-three months on the robbery conviction, and a

three-year term of probation on the conspiracy conviction.

     In 2015, she pled guilty to possession of drug paraphernalia at docket

number 5737 of 2014. The court imposed a sentence of 1 year of probation,

to run concurrently with her existing sentences. Shortly thereafter, the court

issued bench warrants for her arrest due to probation violations.

     She was not located until 2017, when she was arrested for retail theft.

The court revoked her parole on her conviction for robbery at docket 2199 of

2010, and imposed a sentence of the remainder of her maximum sentence,

which worked out to 157 days. The court granted immediate parole on this

sentence. On her conviction for conspiracy on the same docket, the court

revoked her probation, and imposed a sentence of one to three years’

imprisonment. On her conviction for possession of drug paraphernalia at

docket 5737 of 2014, the court revoked her probation and sentenced her to a

term of imprisonment of six to twelve months, to be served consecutively to


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her one to three year sentence for the conspiracy conviction at 2199 of 2010.

Thus, the aggregate sentence imposed was one and one half years to four

years’ imprisonment.

      Before we can address Whitaker’s issue on appeal, we must examine

Attorney Connors’s request to withdraw. Attorney Connors has substantially

complied with the mandated procedure for withdrawing as counsel. See

Santiago,     978     A.2d   at   361   (articulating   Anders   requirements);

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing

that counsel must inform client by letter of rights to proceed once counsel

moves to withdraw and append a copy of the letter to the petition). Whitaker

did not file a response.

      As counsel has met his technical obligation 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).

      Counsel has identified a single issue Whitaker believes entitles her to

relief. Whitaker asserts the court abused its discretion in imposing sentence.

She concedes this argument raises a challenge to the discretionary aspects of

her sentence. See Appellant’s Brief, at 6. “A challenge to the discretionary

aspects of a sentence must be considered a petition for permission to appeal,

as the right to pursue such a claim is not absolute.” Commonwealth v.


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McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted). “Two

requirements must be met before we will review this challenge on its merits.”

Id. (citation omitted).

      “First, an appellant must set forth in his brief a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of a sentence.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).

“Second, the appellant must show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code.” Id. (citation

omitted). That is, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying the

appeal, which are necessary only to decide the appeal on the merits.” Id.

(citation and emphasis omitted).

      In her Rule 2119(f) statement, Whitaker contends the court abused its

discretion by imposing an excessive sentence and failing to consider her




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mental     health     history.    This    raises   a   substantial   question.   See

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).1

       We thus turn to the substance of Whitaker’s argument.

       The imposition of sentence following the revocation of probation
       is vested within the sound discretion of the trial court, which,
       absent an abuse of that discretion, will not be disturbed on appeal.
       An abuse of discretion is more than an error in judgment—a
       sentencing court has not abused its discretion unless the record
       discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)

(citation omitted).

       “Upon revocation the sentencing alternatives available to the court shall

be the same as were available at the time of initial sentencing, due

consideration being given to the time spent serving the order of probation.”

42 Pa.C.S.A. § 9771(b). And the court may impose a sentence of total

confinement upon revocation if “the defendant has been convicted of another



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1 However, to the extent that Whitaker desires to challenge the consecutive
nature of her sentences, we conclude she has not raised a substantial
question. “The imposition of consecutive, rather than concurrent, sentences
may raise a substantial question in only the most extreme circumstances, such
as where the aggregate sentence is unduly harsh, considering the nature of
the crimes and the length of imprisonment.” Commonwealth v. Moury, 992
A.2d 162, 171-172 (Pa. Super. 2010) (citation omitted).

The sentence imposed here, an aggregate of one and one half years to four
years in prison, is not unduly harsh given Whitaker’s repeated criminal
conduct. A defendant is not entitled to a volume discount by having all
sentences run concurrently. See Commonwealth v. Hoag, 665 A.2d 1212,
1214 (Pa. Super. 1995).

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crime[.]” Id., at (c)(1). “[T]he trial court is limited only by the maximum

sentence that it could have imposed originally at the time of the probationary

sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013)

(citations omitted).

      In addition, in all cases where the court resentences an offender
      following revocation of probation … the court shall make as a part
      of the record, and disclose in open court at the time of sentencing
      a statement of the reason or reasons for the sentence imposed
      [and] [f]ailure to comply with these provisions shall be grounds
      for vacating the sentence or resentence and resentencing the
      defendant. 42 Pa.C.S. § 9721(b). A trial court need not undertake
      a lengthy discourse for its reasons for imposing a sentence or
      specifically reference the statute in question, but the record as a
      whole must reflect the sentencing court’s consideration of the
      facts of the crime and character of the offender.

Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (internal

citations and quotation marks omitted).

      When imposing sentence, a court must consider “the protection of the

public, the gravity of the offense as it relates to the impact on the life of the

victim and on the community, and the rehabilitative needs of the defendant.”

Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (citation

omitted).

      Here, the court considered all the necessary factors, and determined

that Whitaker’s recidivism required a term of imprisonment to protect the

public. There is no abuse of the court’s discretion.

      After examining the issues contained in the Anders brief and

undertaking an independent review of the record, we concur with counsel’s


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assessment that the appeal is wholly frivolous. Accordingly, we affirm

Appellant’s judgment of sentence.

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

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/18




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