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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :         IN THE SUPERIOR COURT OF
                                               :               PENNSYLVANIA
                     v.                        :
                                               :
DYSHAN T. AURSBY,                              :              No. 40 EDA 2014
                                               :
                          Appellant            :


           Appeal from the Judgment of Sentence, November 21, 2013,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0002354-2010


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                                FILED JUNE 03, 2015

      This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following appellant’s violation of

probation hearing. Appointed counsel, Jennifer A. Santiago, Esq., has filed a

petition    to   withdraw,   alleging   that       the    appeal    is   wholly   frivolous,

accompanied by an Anders brief.1 We grant counsel’s withdrawal petition

and affirm.

      The record indicates appellant pled guilty to the charge of possession

with intent to deliver on April 19, 2010, and was sentenced to 12 months of

intermediate punishment followed by two years of probation.                       While on

probation, appellant was charged and later convicted of attempted murder,


1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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aggravated assault, robbery, and conspiracy. Appellant was sentenced to an

aggregate term of incarceration of 12½ to 25 years.          As a result of these

convictions, appellant was found in direct violation of his probation.               On

November 21, 2013, at a violation of probation hearing, appellant was

sentenced to 4 to 8 years of confinement to be served consecutive to his

12½ to 25-year sentence. Appellant failed to file a post-sentence motion.

However, on December 20, 2013, appellant’s counsel appeared before the

trial court seeking reconsideration of appellant’s 4 to 8-year sentence. The

trial court denied reconsideration. (Notes of testimony, 12/20/13 at 3.)

     Appellant filed an appeal to this court.           The trial court ordered

appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal.    After   receiving   an   extension   of   time,   instead   of   filing    a

court-ordered Pa.R.A.P. 1925(b) statement, appellant’s counsel filed a

statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4) on




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June 18, 2014.2 As a consequence of Rule 1925(c)(4) statement of intent,

the trial court declined to issue a Pa.R.A.P. 1925(a) opinion.

        On September 29, 2014, appellant’s counsel filed in this court a

motion to withdraw as counsel and an Anders brief, wherein counsel states

there are no non-frivolous issues preserved for our review.           “When

presented with an Anders brief, this Court may not review the merits of the

underlying issues without first examining counsel’s petition to withdraw.”

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing

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

(en banc) (citation omitted).

             In order for counsel to withdraw from an appeal
             pursuant to Anders, certain requirements must be
             met, and counsel must:

             (1)   provide a summary of the procedural
                   history and facts, with citations to the
                   record;


2
    Rule 1925(c)(4) provides:

             In a criminal case, counsel may file of record and
             serve on the judge a statement of intent to file an
             [Anders] brief in lieu of filing a Statement. If, upon
             review of the [Anders] brief, the appellate court
             believes that there are arguably meritorious issues
             for review, those issues will not be waived; instead,
             the appellate court may remand for the filing of a
             Statement, a supplemental opinion pursuant to
             Rule 1925(a), or both. Upon remand, the trial court
             may, but is not required to, replace appellant’s
             counsel.

Pa.R.A.P. 1925(c)(4).


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             (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.

Id., quoting Santiago, 978 A.2d at 361.

     Our review of Attorney Santiago’s application to withdraw, supporting

documentation, and Anders brief reveals that she has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel,

proceed pro se, or raise any additional points that he deems worthy of this

court’s attention, and attached to the Anders petition a copy of the letter

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa.Super. 2005).      See Daniels, 999 A.2d at 594 (“While the

Supreme Court in Santiago set forth the new requirements for an Anders

brief, which are quoted above, the holding did not abrogate the notice

requirements set forth in Millisock that remain binding legal precedent.”).

As Attorney Santiago has complied with all of the requirements set forth

above, we conclude that counsel has satisfied the procedural requirements

of Anders.



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     Once    counsel   has    met   her    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.” Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to the merits of appellant’s appeal.

     In her Anders brief, counsel points out that there is no dispute that

appellant was in direct violation of his sentence. (See notes of testimony,

11/23/13 at 4.)   The law is clear that once probation or parole has been

revoked, a sentence of total confinement may be imposed if any of the

following conditions exist:    the defendant has been convicted of another

crime; the conduct of the defendant indicates that it is likely that he will

commit another crime if he is not imprisoned; or such a sentence is essential

to vindicate the authority of the court.             42 Pa.C.S.A. § 9771(c);

Commonwealth v. McAfee, 849 A.2d 270 (Pa.Super. 2004), appeal

denied, 860 A.2d 122 (Pa. 2004).          Here, a sentence of total confinement

was appropriate since appellant had been convicted of two other crimes.

Additionally, we note appellant was sentenced to 4 to 8 years’ incarceration.

The maximum sentence appellant could have received was 10 years;

consequently, appellant’s sentence was within the statutory limits.

     The appeal is wholly frivolous, and our independent review of the

entire record has not disclosed any other potentially non-frivolous issues.




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Consequently, we grant counsel’s petition to withdraw, and we affirm the

judgment of sentence.

     Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2015




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