J-S28003-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JUSTIN NICHOLAS WHITE,

                        Appellant                  No. 2823 EDA 2015


        Appeal from the Judgment of Sentence September 3, 2015
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0002427-2013


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED APRIL 01, 2016

     Justin Nicholas White appeals from the judgment of sentence imposed

after he was found to be violation of parole and probation. 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 was charged with possession of a controlled substance with

intent to deliver (“PWID”) and possession of a controlled substance.       On

April 25, 2013, Chester County Detective Matthew J. Gordon of the narcotics

and organized crime unit was assigned to the Chester County Detective Drug

Strike Force and was targeting Appellant.     At 2:40 a.m. on the day in

question, Detective Gordon conducted a controlled buy using a confidential


* Retired Senior Judge assigned to the Superior Court.
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informant (“CI”). The purchase was made on the 200 block of East Chestnut

Street, Coatesville, and Appellant sold the CI $200 worth of cocaine.

      On November 18, 2013, Appellant entered a negotiated guilty plea to

one count of felony PWID, 35 P.S. § 780-113(a)(3), in exchange for nine to

twenty-three months imprisonment, which was within the standard range,

followed by two years probation. That same day, Appellant was sentenced,

in accordance with the negotiated guilty plea, to nine to twenty-three

months imprisonment, with credit for time served, followed by two years of

probation. He was paroled on June 26, 2014.

      On December 24, 2014, the Commonwealth filed a petition to revoke

parole and probation averring that on December 8, 2014, Appellant was

arrested by the Coatesville City Police Department, and charged with PWID,

possession of a controlled substance, and possession of drug paraphernalia.

      Appellant’s parole and probation were thereafter revoked, and he was

sentenced on January 3, 2015.        For purposes of the parole violation,

Appellant was sentenced to serve the balance of his previously-imposed

sentence, ten months and nine days, with credit for time served. Appellant’s

probation-violation sentence was five years probation, consecutive to the jail

term. Within ten days of imposition of the judgment of sentence, Appellant

filed a pro se notice of appeal.   In that document, he asserted that his

sentence was unduly harsh in light of the fact that he had violated his parole

and probation only once. In that document, Appellant confused the grading

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of the crime herein as well as the fact that his jail term was imposed due to

a parole violation.   He argued that the amount of incarceration that he

received exceeded the applicable guidelines given that his crime was a

misdemeanor. In response to the trial court’s directive to file a Pa.R.A.P.

1925(b) statement, counsel indicated that she intended to file a petition to

withdraw.

     Since we do not consider the merits of any contentions raised in an

Anders brief without reviewing a request to withdraw, we first consider

counsel’s petition to withdraw.    Commonwealth v. Cartrette, 83 A.3d

1030 (Pa.Super. 2013) (en banc).     In order to be permitted to withdraw,

counsel must meet three procedural requirements: 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.

     Counsel’s petition to withdraw sets forth that she made a conscientious

review of the record and concluded that the appeal is wholly frivolous.

Counsel informed Appellant that she was seeking to withdraw and furnished

him with a copy of the Anders brief. Further, counsel told Appellant that he

had the right to retain new counsel or could proceed on a pro se basis and

raise any additional issues he deemed worthy of this Court’s review. A copy

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of counsel’s letter to Appellant is appended to the Anders brief.             Thus,

counsel complied with the procedural aspects of Anders.

        We must now examine whether counsel’s Anders brief meets the

substantive elements of Santiago. Pursuant to 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.

        In her appellate brief, counsel has included a summary of the factual

and procedural history of the case. Counsel references that the record fails

to support any issues of merit.    Counsel delineates case law that establishes

that the issue raised by Appellant, that his parole/probation violation

sentence is unduly harsh, is frivolous. We thus find the brief to be Santiago

compliant.

        We concur with counsel’s assessment of the frivolity of the sentencing

issue raised in the notice of appeal.        We note that Appellant’s admitted

commission of new crimes constituted violations of his probation and parole.

See Commonwealth v. Kalichak, 943 A.2d 285 (Pa.Super. 2008). Once

the parole was revoked, the trial court properly sentenced Appellant to serve



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the balance of his previously-imposed sentence; in fact, that alternative was

the only one open to the trial court. Id at 290 (“the only option for a court

that decides to revoke parole is to recommit the defendant to serve the

already-imposed, original sentence”); Commonwealth v. Ware, 737 A.2d

251, 253 (Pa.Super. 1999) (at a violation-of-parole hearing, the trial court is

not free to give a new sentence and must sentence defendant to the

unexpired term of the original sentence).          As observed, supra, the

negotiated jail term was within the standard range of the guidelines. Hence,

the trial court properly sentenced Appellant with respect to the parole

violation.

      The probation-revocation sentence was likewise sound.

         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. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014) (citation

omitted).

      Once probation is revoked, “a sentencing court may choose from any

of the sentencing options that existed at the time of the original sentencing,

including incarceration.” Id. at 1044. Additionally, “the trial court is limited

only by the maximum sentence that it could have imposed originally at the



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time of the probationary sentence.” Id. (citation omitted).    In the present

case, Appellant was not sentenced to incarceration for violating probation,

even though the court was authorized to impose such a sentence.            42

Pa.C.S. § 9771(c)(1) (upon revocation of probation, “a sentence of total

confinement” may be imposed if “the defendant has been convicted of

another crime[.]”).   Instead, the court imposed an additional probationary

term of five years, which it was authorized to do since Appellant’s crime

constituted a felony punishable by up to ten years in jail.    35 P.S. §780-

113(f)(1.1). A probationary term is a lenient sentencing alternative.

      Hence, we concur with counsel’s assessment that Appellant’s claim

that his parole/probation violation sentence was unduly harsh is wholly

frivolous. We conducted an independent review of the record and found that

there are no other issues of arguable merit that can be raised in this appeal.

Hence, we permit counsel to withdraw and affirm.

      Petition of Erin N.B. Bruno, Esquire, to withdraw as counsel is granted.

Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016


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