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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                         Appellee

                    v.

FRANK BALL

                         Appellant                   No. 810 MDA 2019


        Appeal from the Judgment of Sentence entered April 16, 201
           In the Court of Common Pleas of Lackawanna County
             Criminal Division at No: CP-35-CR-0000017-2016


BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 23, 2020

      Appellant, Frank Ball, appeals from the judgment of sentence imposed

on April 16, 2019 in the Court of Common Pleas of Lackawanna County

following revocation of his parole. Appellant claims the trial court abused its

discretion by imposing a sentence that was inappropriately harsh and

excessive. Appellant’s counsel has filed a petition to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967), and a brief in support. Upon

review, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

      From our review of the record, including the trial court’s Rule 1925(a)

opinion, we discern the following factual and procedural background.

      Following a July 17, 2015 incident, Appellant was charged with making

terroristic threats, stalking, and harassment on docket 16 CR 17.           On
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December 2, 2015, he threatened his wife, saying he would blow his brains

out and not go alone. She obtained a protection from abuse order against

him.

       On May 10, 2016, Appellant entered a guilty plea at 16 CR 17 to the

terroristic threats charge after signing a guilty plea colloquy that indicated,

inter alia, his awareness of the maximum penalty of five years’ imprisonment.

The court also conducted an on-the-record inquiry to confirm that Appellant

entered his guilty plea knowingly, voluntarily, and intelligently.   The court

accepted the guilty plea and deferred sentencing pending completion of a pre-

sentence investigative report (“PSI”). On May 24, 2016, the court imposed a

five-year restrictive intermediate punishment (“RIP”) sentence with credit for

time served and placed Appellant on three months’ house arrest. Appellant,

who is a veteran, was ordered to continue treatment with the VA and the Vet

Center.   The trial court admonished Appellant that he would face state

incarceration in the event of future violations. Appellant acknowledged his

understanding that he faced potential state incarceration.

       Approximately three months later, while under supervision, Appellant

was charged with two counts of terroristic threats as well as harassment and

stalking, all stemming from posts on a Facebook page using an alias.        He

entered a guilty plea at 16 CR 2118 to one count of terroristic threats and one

count of stalking. Again, he executed a guilty plea colloquy acknowledging

his awareness of the maximum penalty of ten years’ confinement. The court


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again conducted an inquiry on the record to establish that Appellant’s guilty

plea was entered knowingly, voluntarily, and intelligently. A violation petition

was filed regarding the 16 CR 17 charges and Appellant pled guilty to the

Gagnon1 violation. Sentencing was deferred pending a PSI and, on June 28,

2017, the trial court advised Appellant he was giving him one more chance.

Appellant’s original five-year sentence on 16 CR 17 was revoked and he was

resentenced to another five-year intermediate punishment (“IP”) sentence

with the first six months on house arrest. At 16 CR 2118, the court imposed

two years’ probation on each charge.

        Approximately one year later, Appellant was charged at 18 CR 2674 with

one count each of terroristic threats and stalking, this time against a former

co-worker. On December 19, 2018, Appellant entered a guilty plea to one

count of terroristic threats. Appellant again executed a written guilty plea

colloquy indicating his awareness of a potential five-year confinement and the

court again conducted an on-the-record inquiry to establish that the plea was

entered knowingly, voluntarily, and intelligently. The court accepted the plea

and deferred sentencing pending a psychiatric evaluation and a PSI.

        The court subsequently revoked Appellant’s probationary sentence

under 16 CR 17 and resentenced Appellant to 12 to 24 months in a state

correctional institution.     Under 16 CR 2118, the court revoked the earlier



____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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sentences and resentenced Appellant to 12 to 24 months in a state

correctional institution on Count I and nine to 36 months in a state correctional

institution on Count II, consecutive to Count I and consecutive to 16 CR 17.

Under 18 CR 2674, the court imposed a sentence of nine to 24 months in a

state correctional institution with two years of state-supervised probation

consecutive to 16 CR 17. The aggregate sentence was 42 to 108 months’

state incarceration with two years’ state-supervised probation.

         Appellant filed a motion for reconsideration, which the trial court denied.

This timely appeal followed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925. Counsel subsequently filed an Anders brief presenting one

issue:

         A. Whether the sentence imposed was inappropriately harsh and
            excessive and an abuse of discretion.

Anders Brief at 4.

         Before addressing the merits of Appellant’s issue, we must first address

counsel’s request to withdraw. Commonwealth v. Washington, 63 A.3d

797, 800 (Pa. Super. 2013); see also Commonwealth v. Rojas, 874 A.2d

638, 639 (Pa. Super. 2005) (“faced with a purported Anders brief, this Court

may not review the merits of the underlying issues without first passing on

the request to withdraw”) (citation omitted). 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 [Anders] brief to the [appellant]; and 3) advise the
         [appellant] that he or she has the right to retain private counsel

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      or raise additional arguments that the [appellant] deems worthy
      of the court’s attention.

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

banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009)). In addition, counsel must attach to the petition to withdraw a copy

of the letter sent to the client advising him of his rights. Commonwealth v.

Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005). Our review confirms that

counsel has complied with the procedural requirements of Anders, as outlined

in Cartrette and Millisock.

      We also review counsel’s Anders brief for compliance with the

requirements set forth in Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). In Santiago, our Supreme Court explained:

      [I]n 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.

Id. at 361. Based on our review, we conclude that counsel’s Anders brief

complies with Santiago. Therefore, we proceed to examine the issue raised

in the Anders brief and to conduct “a full examination of all the proceedings,

to decide whether the case is wholly frivolous.” Commonwealth v. Yorgey,

188 A.3d 1190, 1196 (Pa. Super. 2018) (en banc).




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      Counsel’s Anders brief raises the issue of whether the trial court abused

its discretion by imposing a sentence Appellant contends is harsh and

excessive.   As such, Appellant presents a challenge to the discretionary

aspects of sentence.       Counsel acknowledges that an appellant must

demonstrate the existence of a substantial question as to whether the

sentence was appropriate. Anders Brief at 9.

      Counsel has included the requisite Rule 2119(f) statement in support of

her contention that Appellant has presented a substantial question.          She

concedes that “in light of [Appellant’s] repeated similar criminal behavior, his

refusal to participate in drug/alcohol rehabilitation, his refusal to acknowledge

responsibility for his behavior, and the trial court[’s] repeated breaks given to

him,” there may be no substantial question warranting a review of the

discretionary aspects of his sentence. Id. Counsel nevertheless asks us to

review the sentence. Id. We decline to do so.

      As this Court explained in Commonwealth v. Fisher, 47 A.3d 155 (Pa.

Super. 2012):

      A substantial question requires a demonstration that “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). This Court’s 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. Whether a substantial question has been raised is
      determined on a case-by-case basis; the fact that a sentence is
      within the statutory limits does not mean a substantial question
      cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255

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      (Pa. Super. 2003). However, a bald assertion that a sentence is
      excessive does not by itself raise a substantial question justifying
      this Court’s review of the merits of the underlying claim. Id.

Id. at 159. Here, Appellant has not demonstrated that the sentence violates

“either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular norm underlying the sentencing process.” Id.

(quoting Tirado, 870 A.2d at 365). Rather, Appellant simply suggests the

sentence was harsh and excessive, noting Appellant’s personal dissatisfaction

with the sentence and his demand that an appeal be filed. Anders Brief at

11.   Further, the trial court had the benefit of PSIs and a psychological

evaluation and set forth the reasons for the sentences on the record. See

Notes of Testimony, 4/16/19, at 2-9.

      Appellant has failed to present a substantial question for our review.

Therefore, we shall not review his sentencing claim. Id.

      We have conducted our independent examination of the proceedings, as

required by Santiago and Yorgey. Based on that examination, we agree that

this appeal is wholly frivolous.   Therefore, we grant counsel’s petition to

withdraw and affirm Appellant’s judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/23/2020




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