J-S13006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    KYLE DAVEY CRIBBS,

                             Appellant                No. 278 WDA 2018


        Appeal from the Judgment of Sentence Entered January 17, 2018
               In the Court of Common Pleas of Jefferson County
                           Criminal Division at No(s):
                           CP-33-CR-0000624-2013
                           CP-33-CR-0000626-2013


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 30, 2019

        Appellant, Kyle Davey Cribbs, appeals from the judgment of sentence of

an aggregate term of 10 to 20 years’ imprisonment, imposed after the court

revoked his probation based on a new conviction in an unrelated case.

Counsel seeks permission to withdraw from further representation pursuant

to Anders v. California, 386 A.2d 738 (Pa. 1967).               In our initial

memorandum filed on May 7, 2019, we found that counsel’s Anders brief

satisfied the requirements set forth in Commonwealth v. Santiago, 97 A.2d

349 (Pa. 2009), and we granted counsel’s petition to withdraw. Subsequently,

we granted reconsideration to provide Appellant with an opportunity to


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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respond to counsel’s petition.        Appellant now challenges the legality of his

post-revocation sentence, alleging that the court failed to consider time served

for the original sentence. After careful review, we vacate the judgment of

sentence, deny counsel’s motion to withdraw, and we remand this case for re-

sentencing.

        We glean the following relevant facts and procedural history from the

record. On March 19, 2014, in the Court of Common Pleas of Jefferson County,

Appellant entered a guilty plea to two charges of possession with intent to

deliver (“PWID”) a controlled substance1 at Nos. CP-33-CR-624-2013 and CP-

33-CR-626-2013.         On that same date, Appellant was sentenced to an

aggregate term of 8 to 16 months’ incarceration, followed by 20 months’

probation.

        On August 9, 2016, after taking judicial notice of a guilty plea that

Appellant entered regarding new charges in Clearfield County,2 the trial court

revoked Appellant’s probation and re-sentenced him to 3 years’ probation at

docket Nos. CP-33-CR-624-2013 and CP-33-CR-626-2013, with the sentences

to run concurrent to each other and consecutive to the sentence imposed for

a conviction in Jefferson County at CP-33-CR-143-2013.


____________________________________________


1   35 P.S. § 780-113(a)(30).

2 On March 29, 2016, Appellant was charged with driving under the influence
by the Dubois City Police Department from an incident that occurred on
December 11, 2015. Additionally, Appellant admitted to the purchase and use
of methamphetamines.

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       On January 17, 2018, after taking judicial notice of Appellant’s

conviction and sentencing for new charges of endangering the welfare of

children and simple assault at docket No. CP-33-CR-540-2017, the trial court

revoked Appellant’s probation at docket Nos. CP-33-CR-624-2013 and CP-33-

CR-626-2013 and re-sentenced him to an aggregate term of 10 to 20 years’

imprisonment.3 Appellant filed a motion for reconsideration on January 25,

2018, which was denied by the court on that same date.

       On February 15, 2018, Appellant filed a timely appeal, followed by a

timely,   court-ordered      Pa.R.A.P.    1925(b)   concise   statement   of   errors

complained of on appeal.4         Appellant presented the following issue for our

review, via counsel’s Anders brief: “Whether the [t]rial [c]ourt committed an

abuse of discretion when it revoked Appellant’s probation/parole and re-

sentenced him to serve sentences aggregating to a minimum of ten (10) years

and to a maximum of twenty (20) years in a state correctional institution given

the circumstances of the case[?]” Anders Brief at 4.


____________________________________________


3Appellant was re-sentenced to 2½ to 5 years’ imprisonment at No. CP-33-
CR-624-2013, and to 7½ to 15 years’ imprisonment at No. CP-33-CR-626-
2013.

4We recognize that our Supreme Court recently held that “the proper practice
under Rule 341(a) is to file separate appeals from an order that resolves issues
arising on more than one docket. The failure to do so requires the appellate
court to quash the appeal.” Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018).     The Court tempered its holding, however, by making it
prospective only. The Walker opinion was filed on June 1, 2018; hence, this
holding is not applicable in the instant matter, as Appellant filed his notice of
appeal on February 15, 2018.

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      Counsel’s petition to withdraw was initially granted by this Court on May

7, 2019; however, on July 8, 2018, we granted Appellant’s pro se application

for reconsideration in order to provide Appellant with the opportunity to file a

response to the Anders brief, and we withdrew our May 7, 2019 decision.

After being given an extension of time by this Court, Appellant filed a pro se

responsive brief on September 24, 2018. In his response, Appellant presents

the following sole issue for our review: “Whether Appellant’s sentence at No.

CP-33-CR-626-2013 exceeds the statutory maximum and is therefore illegal?”

Appellant’s Response at 2.

      We begin by addressing counsel’s application to withdraw and the issue

raised in the Anders brief. “When 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.” Commonwealth v. Rojas, 875 A.2d 638, 639

(Pa. Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303

(Pa. Super. 1997)).

      Court-appointed counsel who seeks to withdraw from representing
      an appellant on direct appeal on the basis that the appeal is
      frivolous 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) file a brief referring to anything that arguably might
         support the appeal but which does not resemble a “no-
         merit” letter to amicus curiae brief; and (3) furnish a copy
         of the brief to the [appellant] and advise the [appellant] of
         his or her right to retain new counsel or raise any additional
         points that he or she deems worthy of the court’s attention.



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      Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998)
      (citation omitted).

Rojas, 874 A.2d at 639.       Appellant’s counsel has complied with these

requirements.   Counsel petitioned for leave to withdraw, and filed a brief

satisfying the requirements of Anders, as discussed, infra.      Counsel also

provided a copy of the brief to Appellant, and submitted proof that he advised

Appellant of his right to retain new counsel, proceed pro se, and/or to raise

new points not addressed in the Anders brief.

      Our Supreme Court has held, in addition, that counsel must explain the

reasons underlying his assessment of Appellant’s case and his conclusion that

the claims are frivolous.    Thus, counsel’s Anders brief must satisfy the

following criteria before we may consider the merits of the underlying appeal:

      [W]e hold 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.

Santiago, 978 A.2d at 361.

      Upon review of the Anders brief submitted by Appellant’s counsel, we

find it complies with the technical requirements of Santiago.        Counsel’s

Anders brief (1) provides a summary of the procedural history and facts of

this case; (2) directs our attention, when applicable, to the portions of the

record that ostensibly supports Appellant’s claim of error; (3) concludes that


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Appellant’s claim is frivolous; and (4) does so by citation to the record and

appropriate/applicable legal authorities. Thus, we now examine whether the

claim set forth in the Anders brief is, indeed, frivolous.

       The allegations raised on behalf of Appellant in the Anders brief relate

to the discretionary aspects of his sentence.

       Challenges to the discretionary aspects of sentencing do not
       entitle an appellant to review as of right. An appellant challenging
       the discretionary aspects of his sentence must invoke this Court’s
       jurisdiction by satisfying a four-part test:

          We conduct a four-part analysis to determine: (1) whether
          [the] 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 [the]
          appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
          (4) whether there is a substantial question that the sentence
          appealed from is not appropriate under the Sentencing
          Code, 42 Pa.C.S.[] § 9781(b).

       Objections to the discretionary aspects of a sentence are generally
       waived if they are not raised at the sentencing hearing or in a
       motion to modify the sentence imposed.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and internal quotations omitted).

       Here, the record reflects that Appellant filed a timely notice of appeal,

properly preserved his claim in his post-sentence motion, and counsel has

included a Rule 2119(f) statement in his Anders brief in compliance with

Pennsylvania Rules of Appellate Procedure.5 Thus, we proceed to determine
____________________________________________


5 We recognize that where counsel files an Anders brief, we may review the
issue even absent a Rule 2119(f) statement. See Commonwealth v.
Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015).

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whether Appellant has raised a substantial question to meet the fourth

requirement of the four-part test outlined above.

      As we explained in Moury:

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.

Id. at 170 (citations and internal quotations omitted).

      Appellant maintains in his Rule 2119(f) statement that his revocation

sentence is manifestly unreasonable “in that it was excessive and constituted

too severe a punishment under the circumstances of the case and the

probation violation….” Appellant’s Brief at 7. Appellant further avers that the

reasons given by the trial court for the sentence do not justify the severity of

the sentence.   Id.   Based on the arguments presented in Appellant’s Rule

2119(f) statement, and the case law on which he relies, we conclude that he

has presented a substantial question for our review. See Commonwealth v.

Simmons, 56 A.3d 1280, 1286 (Pa. Super. 2012) (quoting Commonwealth

v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“A claim that a sentence is

manifestly excessive such that it constitutes too severe a punishment raises

a substantial question.”)).

      Accordingly, we will review the merits of Appellant’s claim, mindful of

the following standard of review:

      Sentencing is a matter vested within the discretion of the trial
      court and will not be disturbed absent a manifest abuse of

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      discretion. An abuse of discretion requires the trial court to have
      acted with manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support so as to be clearly
      erroneous. It is also now accepted that in an appeal following the
      revocation of probation, it is within our scope of review to consider
      challenges to both the legality of the final sentence and the
      discretionary aspects of an appellant’s sentence.

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)

(citations omitted). Moreover, when we consider an appeal from a sentence

imposed following the revocation of probation,

      [o]ur review is limited to determining the validity of the probation
      revocation proceedings and the authority of the sentencing court
      to consider the same sentencing alternatives that it had at the
      time of the initial sentencing. 42 Pa.C.S. § 9771(b). Also, upon
      sentencing following a revocation of probation, the trial court is
      limited only by the maximum sentence that it could have imposed
      originally at the time of the probationary sentence.

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)

(internal citation omitted).

      The reason for the trial court’s broad discretion in sentencing and the

deferential standard of appellate review is that “the sentencing court is in the

best position to measure various factors and determine the proper penalty for

a particular offense based upon an evaluation of the individual circumstances

before it.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (internal

citation and quotation marks omitted). Our Supreme Court has recognized

that the sentencing court’s “institutional advantage” is, perhaps, even “more

pronounced in fashioning a sentence following the revocation of probation,

which is qualitatively different than an initial sentencing proceeding.”

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).


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      At initial sentencing, all of the rules and procedures designed to
      inform the court and to cabin its discretionary sentencing
      authority properly are involved and play a crucial role. However,
      it is a different matter when a defendant reappears before the
      court for sentencing proceedings following a violation of the mercy
      bestowed upon him in the form of a probationary sentence. For
      example, in such a case, contrary to when an initial sentence is
      imposed, the Sentencing Guidelines do not apply, and the
      revocation court is not cabined by Section 9721(b)’s requirement
      that “the sentence imposed should call for confinement that is
      consistent with 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.”
      42 Pa.C.S. § 9721. See Commonwealth v. Reaves, … 923 A.2d
      1119, 1129 ([Pa.] 2007) (citing 204 Pa.Code. § 303.1(b)
      (Sentencing Guidelines do not apply to sentences imposed as
      result of revocation of probation)).

Id.

      Here, Appellant concedes that a period of incarceration was warranted,

but he argues that the imposition of consecutive sentences with an aggregate

term of 10 to 20 years’ imprisonment was manifestly unreasonable.

Appellant’s Brief at 10. Appellant notes that Jefferson County Adult Probation

recommended an aggregate sentence of 7½ to 20 years’ imprisonment, and

he suggests that a shorter sentence would have been more than adequate

protection of the public. Id.

      Having   carefully   reviewed the    record of Appellant’s    sentencing

proceeding, we ascertain no abuse of discretion by the court. Initially, we

stress that the court had the benefit of a pre-sentence investigation report

and reviewed that report prior to the sentencing proceeding. N.T. Sentencing,

1/17/17, at 4-5.    Additionally, the trial court indicated that it took into

consideration the fact that the mother of Appellant’s children (“Amanda”) and


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Appellant’s father both obtained protection from abuse (“PFA”) orders against

Appellant. Id. at 5. While in jail, Appellant repeatedly attempted to contact

Amanda and his father in violation of the PFA orders. Id. The court stated

that these actions demonstrated Appellant’s “lack of care and concern to any

of the court’s objectives or to any of the court’s orders or rules[,]” and

concluded, thus, that boot camp or the State Intermediate Punishment

program (“SIP”) would not be appropriate. Id. The court further addressed

Appellant from the bench:

      [T]his type of assaultive behavior and threatening behavior,
      getting PFA[] [orders] from your family members, from the people
      you love, that it shows you could and are potentially dangerous to
      individuals, especially those closest to you.

      So[,] I think … that the maximum sentence is deserved and [is]
      also necessary to protect the public and your own family against
      you and to give you some time to reach statistical maturity age
      where perhaps you could control your own behaviors, which you
      haven’t been able to do on the street since you were a juvenile.

Id. at 5-6.

      Additionally, the trial court summarized its reasoning in support of

Appellant’s post-revocation sentence in its Rule 1925(a) opinion, in which it

so aptly opined:

            Before the [c]ourt for re-sentencing, [Appellant] purported
      to take responsibility for his actions and, indicating his interest in
      being rehabilitated, asked it to consider SIP or motivational boot
      camp rather than the longer state sentence being recommended
      by Probation. His history and demeanor, however, suggested that
      he was only saying what he thought might result in a more
      favorable outcome. In that regard, his conduct at the jail while
      awaiting disposition at CP-33-CR-540-2017[,] and his devil-may-
      care attitude during proceedings related to that case[,] were far
      more instructive than the words he uttered on January 17, 2018.

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            Faced with a young man whose mindset and criminal
      proclivities had been unaffected by his previous dealings with the
      criminal justice system, therefore, the [c]ourt imposed a
      maximum term of incarceration.         Certainly[,] a prior post-
      revocation sentence (with a boot camp recommendation) had not
      proven effective, … nor had the drug rehab to which he repeatedly
      referred in his pro se filings. An escalated sentence was thus
      warranted—one that would keep him sequestered from a
      community full of potential victims for the longest possible period
      of time while he matured and learned self-control. With the credit
      he was due for time served, though, it was also a sentence that
      offered him the potential for release within a few years.

Trial Court Opinion, 5/31/18, at 1-2 (citations to record and footnote omitted).

      To the extent Appellant contends that the court failed to explain its

reasoning for imposing a harsher sentence on Appellant post-revocation, we

note that:

      [F]ollowing revocation, a sentencing court need not undertake a
      lengthy discourse for its reasons for imposing a sentence or
      specifically reference the statutes in question. Simply put, since
      the defendant has previously appeared before the sentencing
      court, the stated reasons for a revocation sentence need not be
      as elaborate as that which is required at initial sentencing. The
      rationale for this is obvious. When sentencing is a consequence
      of the revocation of probation, the trial judge is already fully
      informed as to the facts and circumstances of both the crime and
      the nature of the defendant….

Pasture, 107 A.3d at 28. The Pasture Court further emphasized that “a trial

court does not necessarily abuse its discretion in imposing a seemingly

harsher post-revocation sentence where the defendant received a lenient

sentence and then failed to adhere to the conditions imposed on him.” Id.

Based on our review of the record, we are satisfied with the justification

provided for the sentence imposed on Appellant post-revocation, and we

discern no abuse of discretion by the trial court.


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      Next, we address Appellant’s pro se claim that his post-revocation

sentence is illegal because the trial court failed to give him credit for time

served on the original sentence. As this Court has previously stated: “This

issue of whether a sentence is illegal is a question of law; therefore our task

is to determine whether the trial court erred as a matter of law and, in doing

so, our scope of review is plenary.” Commonwealth v. Maxwell, 932 A.2d

941, 942 (Pa. Super. 2007) (internal citation omitted).

      Specifically, Appellant asserts that the trial court failed to give credit for

the time he served on his original sentence at No. CP-33-CR-626-2013 when

it re-sentenced him after the revocation of his probation. Considering that his

new sentence is for the statutory maximum for a PWID conviction involving a

controlled substance, and the fact that he has already served time on the

original sentence for this conviction, Appellant argues that his post-revocation

sentence exceeds the statutory maximum and, thus, is illegal.           Appellant’s

Response at 3-5.

      Section 9760 of the Sentencing Code, provides, in relevant part:

      (1)   Credit against the maximum term and any minimum term
            shall be given to the defendant for all time spent in custody
            as a result of the criminal charge for which a prison sentence
            is imposed or as a result of the conduct on which such a
            charge is based. Credit shall include credit for time spent in
            custody prior to trial, during trial, pending sentence, and
            pending the resolution of an appeal.

      (2)   Credit against the maximum term and any minimum term
            shall be given to the defendant for all time spent in custody
            under a prior sentence if he is later reprosecuted and
            resentenced for the same offense or for another offense
            based on the same act or acts. This shall include credit in

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            accordance with paragraph (1) of this section for all time
            spent in custody as a result of both the original charge and
            any subsequent charge for the same offense or for another
            offense based on the same act or acts.

42 Pa.C.S. § 9760(1), (2).

      As we discussed in Commonwealth v. Crump, 995 A.2d 1280 (Pa.

Super. 2010), “while the language of Section 9760 does not discuss an illegal

sentence or the situation where a person receives a new sentence as a result

of a probation violation, our case law analyzing the statute has outlined the

necessary considerations we must make in determining whether a sentence is

illegal.” Id. at 1284.

      Our statutory and case law are clear. Subsequent to revocation
      of probation, the sentencing court has available to it all the options
      permissible at the time of initial sentencing, giving due
      consideration “to the time spent serving the order of probation.”
      42 Pa.C.S. § 9771(b). As long as the new sentence imposed does
      not exceed the statutory maximum when factoring in the
      incarcerated time already served, the sentence is not illegal.
      Additionally, the sentencing court cannot give a new split sentence
      where the period of incarceration and period of probation exceed
      the statutory maximum.

Id. at 1285 (internal citations omitted; emphasis added).              See also

Commonwealth v. Williams, 662 A.2d 658 (Pa. Super. 1995) (concluding

that a defendant who had previously served time on a split sentence and was

subsequently sentenced to the maximum term after revocation of his




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probation was entitled to credit for time served for his original period of

incarceration).6

       Here, Appellant was          originally sentenced to   8   to   16   months’

imprisonment followed by 20 months’ probation for his PWID conviction at No.

CP-33-CR-626-2013.          The maximum period of incarceration for PWID

involving a controlled substance is 15 years. 35 P.S. § 780-113(f)(1). In

sentencing Appellant after revocation of his probation, the trial court was

limited by the statutory maximum of 15 years. After revoking Appellant’s

probation, the trial court imposed a sentence of 7½ to 15 years’ imprisonment.

That maximum prison sentence of 15 years, in addition to the time served by

Appellant on the original sentence, clearly exceeds the statutory maximum of

15 years of incarceration. Because the trial court failed to give credit for time

served, we are constrained to deem the sentence imposed upon revocation of

Appellant’s probation at No. CP-33-CR-626-2013 as an illegal sentence.

       Accordingly, we deny counsel’s motion to withdraw.7 We further vacate

the judgment of sentence at No. CP-33-CR-626-2013.                     Because our

disposition of No. CP-33-CR-626-2013 upsets the trial court’s overall

sentencing scheme, we also vacate the judgment of sentence at No. CP-33-

CR-624-2013 and remand this matter in its entirety for re-sentencing.
____________________________________________


6 Our reasoning in Williams centered on the fact that the failure to award
credit for the original time spent imprisoned would result in the defendant
serving more time incarcerated than the lawful maximum. Id.

7 The denial of counsel’s request to withdraw is without prejudice to
Appellant’s right to request new counsel on remand.

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Commonwealth v.       Thur,   906    A.2d    552,   569   (Pa.   Super.   2006).

     Motion to withdraw as counsel denied. Judgment of Sentence vacated.

Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2019




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