J-S74008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL DANIELS

                            Appellant                  No. 181 EDA 2016


           Appeal from the Judgment of Sentence December 3, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014824-2009


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                     FILED OCTOBER 12, 2016


        Appellant Michael Daniels appeals from the judgment of sentence of

two and one-half years to five years’ incarceration imposed by the trial court

on December 3, 2015, after it found him to be in direct violation of his

probation. In addition, counsel has filed a petition to withdraw from

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

grant counsel's petition to withdraw and affirm Appellant’s judgment of

sentence.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      Appellant originally pled guilty on August 31, 2011, in four separate

dockets to theft by extortion and impersonating a public servant.          The

charges arose from Appellant’s impersonation of a Philadelphia police

detective on three separate occasions at which time he met with various

men who had placed personal advertisements on craigslist.com for sexual

encounters with other men. Appellant told them they could avoid arrest for

their alleged criminal conduct by paying him money. Appellant again falsely

presented himself as a police detective to a woman employed by the First

Judicial District Warrant Unit in Philadelphia with whom he had begun a

relationship in an effort to obtain confidential information.

      The trial court initially sentenced Appellant to a negotiated term of two

and one half years to five years in prison. Following Appellant’s filing of a

post-sentence motion to reconsider the sentence, on February 2, 2012, the

trial court resentenced him to a new, negotiated sentence of an aggregate

term of six months to thirty-six months in prison to be followed by ten years

of probation with credit for time served. N.T. Resentencing, 2/6/12, at 5, 7.

On April 29, 2013, Appellant was paroled. N.T. Sentencing, 12/3/15, at 6.

      Appellant appeared before the trial court several times before April 9,

2015, at which time he was arrested and charged with indecent exposure.

He pled guilty to that charge on August 31, 2015, and was sentenced to two

years’ probation.    Id. at 6-8.     On December 3, 2015, the trial court

conducted a violation of probation hearing at which time the trial court found


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Appellant to be in direct violation of the terms of his probation and revoked

the same.    Id. at 8, 19.    The Commonwealth stressed that Appellant’s

conviction for indecent exposure arose from his actions in a school zone and

expressed its concern given that Appellant frequently interacted with minors

as an employee of Philadelphia’s Department of Parks and Recreation. Id.

at 15, 18.    Appellant also exercised his right to allocution, and counsel

presented argument on his behalf.    Id. at 11-18. Thereafter, the trial court

sentenced Appellant to two and one half years to five years in prison on the

theft by extortion charge with no further penalty on the impersonating a

public servant charge at docket CP-51-CR-0014824-2009 or on the

remaining charges.   Appellant also received credit for time served.    Id. at

20.

      On December 22, 2015, Appellant filed a pro se correspondence

wherein he sought the modification of his sentence due to the trial court’s

alleged failure to properly credit him for time served, and he also filed a pro

se notice of appeal on January 7, 2016.      Appellant’s trial counsel filed a

motion to withdraw, and the trial court granted the motion on January 14,

2016, at which time it also indicated new counsel shall be appointed for the

purpose of Appellant’s appeal.      On January 21, 2016, current counsel

entered her appearance on Appellant’s behalf.        The trial court directed

Appellant to file and serve a Pa.R.A.P.1925(b) concise statement of errors

complained of on appeal. In lieu thereof, Appellant's counsel filed a


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statement of his intent to file an Anders brief pursuant to Pa.R.A.P.

1925(c)(4).

     On April 18, 2016, current counsel filed a petition to withdraw and an

accompanying Anders brief with this Court contending that there are no

non-frivolous issues to be reviewed. In the Anders brief, counsel states the

question presented as follows: “Are there are no non-frivolous issues

preserved for appeal.” Anders brief at 3; notwithstanding, in the argument

portion of the brief, counsel essentially raises a discretionary aspects of

sentencing issue in asserting that upon finding Appellant to be in direct

violation of his probation, “the trial court was then only limited by the

maximum sentence that it could have imposed at the time of the original

sentencing hearing in 2011.” Anders brief at 8.

     As we do not address the merits of issues raised on appeal without

first reviewing a request to withdraw, we review counsel's petition to

withdraw at the outset. Commonwealth v. Cartrette, 83 A.3d 1030, 1032

(Pa.Super. 2013) (en banc). The procedural requirements for withdrawal

require counsel to: 1) petition for leave to withdraw and state that, after

making a conscientious examination of the record, counsel has concluded

that the appeal is frivolous; 2) provide a copy of the Anders brief to the

defendant; and 3) inform the defendant that he has the right to retain

private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court's attention. Id.


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        Counsel's petition to withdraw indicates that she made a careful review

of the record and concluded that there are no non-frivolous issues. Counsel

notified Appellant that she was seeking to withdraw and furnished him with

copies of both the petition to withdraw and the Anders brief. Additionally,

counsel informed Appellant of his right to retain new counsel or proceed pro

se to raise any issues he believes this Court should consider. 1 Thus, counsel

has satisfied the procedural requirements of Anders.

        In light of counsel’s having complied with the procedural dictates of

Anders, we next consider whether counsel's Anders brief meets the

substantive requirements of Santiago. Under Santiago, an Anders 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, supra at 361.


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1
  On July 14, 2016, Appellant filed a pro se response to the petition to
withdraw as counsel wherein he reiterated his belief that he did not properly
receive credit for time served and asked this Court to deny counsel’s petition
due to his inability to obtain legal access as a result of his indigence which
will prejudice him.




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        Counsel provided a short procedural and factual history of this case,

explained her reasons for determining that Appellant's appeal is frivolous,

and provided statutory authority to support her finding there are no non-

frivolous issues; therefore, counsel has minimally complied with the

requirements     of   Anders/Santiago.      Accordingly,   we   proceed      to   a

consideration of the issue of arguable merit counsel presents in her Anders

brief concerning the discretionary aspects of Appellant’s sentence and of

Appellant’s additional claim he did not receive credit for time he spent

incarcerated to make an independent judgment as to whether the appeal is,

in fact, wholly frivolous. Commonwealth v. Bynum-Hamilton, 135 A.3d

179, 184 (Pa.Super. 2016). In doing so, we first note that:

              [a] challenge to the discretionary aspects of sentencing
        does not entitle an appellant to review as of right.
        Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.
        2011). An appellant challenging the discretionary aspects of his
        sentence must invoke this Court's jurisdiction by satisfying a
        four-part test: (1) whether appellant has filed a timely notice of
        appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
        properly preserved at sentencing or in a motion to reconsider
        and modify sentence, see Pa.R.Crim.P. 720; (3) whether
        appellant's brief has a fatal defect, Pa.R.A.P. 2119(f);5 and (4)
        whether there is a substantial question that the sentence
        appealed from is not appropriate under the Sentencing Code, 42
        Pa.C.S.A. § 9781(b). Commonwealth v. Evans, 901 A.2d 528,
        533 (Pa.Super. 2006).

Id.     Herein, as in Bynum-Hamilton, Appellant’s Anders brief fails to

include a Pa.R.A.P. 2119(f) statement. However, we note as we did therein,

that:




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            [a]lthough counsel has not included the requisite Pa.R.A.P.
     2119(f) statement in his Anders brief herein, “[w]here counsel
     files an Anders brief, this Court has reviewed the matter even
     absent a separate Pa.R.A.P. 2119(f) statement. Hence, we do
     not consider counsel's failure to submit a Rule 2119(f) statement
     as precluding review of whether Appellant's issue is frivolous.”
     Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.Super.
     2015) (citations omitted). In addition, a determination of what
     constitutes a substantial question must be evaluated on a case-
     by-case basis and such question exists only when an appellant
     advances a colorable argument that the sentencing judge's
     actions were either inconsistent with a specific provision of the
     Sentencing Code or contrary to the fundamental norms
     underlying the sentencing process. Commonwealth v. Prisk,
     13 A.3d 526, 533 (Pa.Super. 2011).
            Upon revoking one's probation, a sentencing court may
     choose from any of the sentencing options that existed at the
     time of the original sentencing, including incarceration. 42
     Pa.C.S.A. § 9771(b). However, the imposition of total
     confinement upon revocation requires a finding that the
     defendant has been convicted of another crime, his conduct
     indicates it is likely he will commit another crime if he is not
     imprisoned, or such a sentence is essential to vindicate the
     court's authority of the court. 42 Pa.C.S.A. § 9771(c). Section
     9721, which governs sentencing generally, provides that 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.”
     Id. Failure to comply with these provisions “shall be grounds for
     vacating the sentence or resentence and resentencing the
     defendant.” Id. Additionally, this Court has noted that the
     reasons stated for a sentence imposed should reflect the
     sentencing court's consideration of the criteria of the Sentencing
     Code, 42 Pa.C.S.A. § 9701 et seq., the circumstances of the
     offense, and the character of the offender. Commonwealth v.
     DeLuca, 275 Pa.Super. 176, 418 A.2d 669, 670 (1980).
     ____
     5
      In pertinent part, this Rule requires an appellant challenging the
     discretionary aspects of his sentence to set forth in his brief a
     concise statement of the reasons relied upon for allowance of
     appeal with respect to the discretionary aspects of the sentence;



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        such statement shall immediately precede the argument on the
        merits. Pa.R.A.P. 2119(f).

Id., at 184–85.

        In the within matter, Appellant was sentenced on December 3, 2015,

and he did not object to his sentence at the revocation hearing.             At the

conclusion of the hearing, Appellant was advised that he had “ten days to

ask the Judge to reconsider the sentence ….” N.T. Sentencing, 12/3/15, at

22. Nineteen days later, on December 22, 2015, Appellant filed a pro se

post-sentence motion wherein he alleged he had not been credited properly

for time served.    However, at this time Appellant was still represented by

counsel.    As such, his pro se filing is a legal nullity, as it is well-settled that

no defendant has a right to hybrid representation.            Commonwealth v.

Padilla, 62 Pa. 449, 485, 80 A.3d 1238, 1259 (2013);                   Pa.R.Crim.P.

120(a)(4) (stating “[a]n attorney who has been retained or appointed by the

court shall continue such representation through direct appeal or until

granted leave to withdraw by the court…”).

        Moreover, even had Appellant properly challenged the discretionary

aspects of his sentence in a timely post-sentence motion, this claim would

fail.    The sentencing court imposed the sentence Appellant originally

negotiated and received, one well within the statutory maximum, and stated

its reasons for imposing its sentence as follows:

              As conditions of my sentence, [Appellant] is to get
        vocational training and seek and maintain employment.



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              With this sentence, this [Appellant] will never have to
       come back in front of me again. I have the same concerns of
       the Commonwealth, that [Appellant] -– his first four cases
       involved him responding to craigslist advertisement.           Men
       seeking sex with other men and him showing up at the man’s
       house in a uniform and demanding money, in order to be quiet
       about the ad.
              He did that on four occasions, that’s why there are four
       cases.
              And there was significant restitution related to, at least
       two of them. I remember -- restitution was $1,500 in one case,
       $3,000 in another case, $1,200 in another case.
              Those three cases--$5,700 in restitution alone and then
       the fines and costs that goes with that.
              So this is the original sentence that was negotiated back in
       2011 for these cases and I think it’s appropriate.

N.T. Sentencing, 12/3/15, at 21-22. As such, we would find the trial court

did not abuse its discretion in imposing its sentence.

       To the extent Appellant challenges the legality of his sentence for the

trial court’s alleged failure to credit him for time served,2 we note that the

trial court specifically credited him for time he spent incarcerated due to a

DUI arrest in 2014 and for an arrest concerning his violation of a protection

from abuse order in February of 2015. N.T. Sentencing, 12/3/15, at 20. In

total, Appellant received credit for three hundred sixty-six days, and the trial

court enumerated the dates thereof in its sentencing order as follows: “10-

16-14 to 1-21-15, 2-12-15 to 3-12-15, 4-24-15 to 12-3-15.”           See Order

Violation of Probation, filed 12/3/15; N.T. Sentencing, 12/3/15, at 20.
____________________________________________


2
  See Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa.Super. 2014)
(recognizing a claim based upon the failure to give credit for time served is a
nonwaivable challenge to the legality of sentence).



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     Consequently, after an independent review of this appeal, we find

Appellant's issue to be frivolous, and we grant counsel's petition to

withdraw.

     Petition to Withdraw Granted. Judgment of Sentence Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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