J-S28043-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
              Appellee               :
                                     :
              v.                     :
                                     :
STORM CLOUD BEER                     :
                                     :
              Appellant              :     No. 1936 WDA 2016

          Appeal from the Judgment of Sentence May 3, 2013
           in the Court of Common Pleas of Jefferson County
          Criminal Division at No(s): CP-33-CR-0000011-2007

COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
              Appellee               :
                                     :
              v.                     :
                                     :
STORM CLOUD BEER                     :
                                     :
              Appellant              :     No. 1937 WDA 2016

          Appeal from the Judgment of Sentence May 3, 2013
           in the Court of Common Pleas of Jefferson County
          Criminal Division at No(s): CP-33-CR-0000498-2006

COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
              Appellee               :
                                     :
              v.                     :
                                     :
STORM CLOUD BEER                     :
                                     :
              Appellant              :     No. 1940 WDA 2016

          Appeal from the Judgment of Sentence May 3, 2013
           in the Court of Common Pleas of Jefferson County
          Criminal Division at No(s): CP-33-CR-0000494-2006
J-S28043-17


BEFORE:     OLSON, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED JULY 11, 2017

      Storm Cloud Beer (Appellant) appeals nunc pro tunc from the

judgment of sentence which the trial court imposed after revoking

Appellant’s probation. In addition, Appellant’s counsel has filed a petition to

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

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

affirm the judgment of sentence and grant the petition to withdraw.

      We set forth the following procedural history of this case.

             On April 19, 2013, at docket number CP-33-CR-0000606-
      2012 (docket number 606-2012), a jury found Appellant guilty of
      persons not to possess a firearm. That act of possession formed
      the basis for the allegation that Appellant was in violation of his
      probation at docket numbers CP-33-CR-0000011-2007 (docket
      number 11-2007), CP-33-CR-0000498-2006 (docket number
      498-2006), and CP-33-CR-0000494-2006 (docket number 494-
      2006). Taking judicial notice of the subsequent conviction at
      docket number 606-2012, the court found Appellant to be in
      violation of the terms and conditions of his probation and
      resentenced Appellant to the following terms of confinement on
      May 3, 2013: six months to two years at docket number 11-
      2007, two to seven years at docket number 498-2006, and three
      to ten years at 494-2006. Each of these terms of confinement
      was to be served consecutive to the other and to his sentence
      imposed at docket number 606-2012.             [] Appellant was
      sentenced on the probation violations and the conviction forming
      the basis for those violations on the same day….

            Appellant did not file post-sentence motions or a direct
      appeal. On April 16, 2014, Appellant pro se filed timely a [Post
      Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (PCRA)] petition
      challenging his sentence on various grounds and alleging that,
      inter alia, his counsel was ineffective for failing to request
      reconsideration of his sentence and file a direct appeal. Counsel
      was appointed and amendments to the pro se petition were filed.

*Retired Senior Judge assigned to the Superior Court.
J-S28043-17


     A hearing was held on April 7, 2016, after which the PCRA court
     denied Appellant’s petition.

Commonwealth v. Beer, No. 661 WDA 2016, 662 WDA 2016, and 663

WDA 2016, unpublished memorandum at *1 (Pa. Super. filed November 16,

2016) (internal citation and footnote removed). On appeal from the order

denying his PCRA petition, this Court reversed the order and remanded for

reinstatement of Appellant’s direct appeal rights nunc pro tunc. Id.

     After remand, Appellant timely filed a notice of appeal from the

revocation court’s May 3, 2013 judgment of sentence imposed after

revocation of Appellant’s probation at docket numbers 11-2007, 498-2006,

and 494-2006. In response to the revocation court’s order to file a concise

statement of errors complained of on appeal, counsel for Appellant filed a

statement of intent to file an Anders/McClendon brief pursuant to

Pa.R.A.P. 1925(c)(4).1

     The following principles guide our review of this matter.

            Direct appeal counsel seeking to withdraw under Anders
     must file a petition averring that, after a conscientious
     examination of the record, counsel finds the appeal to be wholly
     frivolous. Counsel must also file an Anders brief setting forth
     issues that might arguably support the appeal along with any
     other issues necessary for the effective appellate presentation
     thereof….

            Anders counsel must also provide a copy of the Anders
     petition and brief to the appellant, advising the appellant of the
     right to retain new counsel, proceed pro se or raise any
     additional points worthy of this Court’s attention.

1
 Due to counsel’s statement of intent, the revocation court did not issue a
Rule 1925(a) opinion. Also, the Commonwealth did not file a brief.



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J-S28043-17


               If counsel does not fulfill the aforesaid technical
        requirements of Anders, this Court will deny the petition to
        withdraw and remand the case with appropriate instructions
        (e.g., directing counsel either to comply with Anders or file an
        advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
        petition and brief satisfy Anders, we will then undertake our
        own review of the appeal to determine if it is wholly frivolous. If
        the appeal is frivolous, we will grant the withdrawal petition and
        affirm the judgment of sentence. However, if there are non-
        frivolous issues, we will deny the petition and remand for the
        filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

        Our Supreme Court has clarified portions of the Anders procedure as

follows.

        Accordingly, we 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.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied substantially with the

above requirements.2      Once “counsel has met these 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

2
    Appellant has not responded to counsel’s petition to withdraw.



                                       -3-
J-S28043-17


the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 113

A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n.

5).

      According to counsel, Appellant wishes to challenge the discretionary

aspects of his sentence. It is within this Court’s scope of review to consider

challenges to the discretionary aspects of an appellant’s sentence in an

appeal following a revocation of probation. Commonwealth v. Ferguson,

893 A.2d 735, 737 (Pa. Super. 2006); see also Commonwealth v.

Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (“A challenge to an alleged

excessive sentence is a challenge to the discretionary aspects of a

sentence.”).

      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
      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); 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).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation

omitted).

      Instantly, Appellant has satisfied the first requirement by timely filing

a notice of appeal nunc pro tunc.     To satisfy the second requirement, we

point out that “[o]bjections to the discretionary aspects of a sentence are




                                      -4-
J-S28043-17


generally waived if they are not raised at the sentencing hearing or in a

motion to modify the sentence imposed.” Id.

     Prior to imposition of the sentence, Appellant requested that the

revocation court consider imposing his revocation sentences concurrent with

his sentence at docket number 606-2012, but Appellant did not lodge an

objection to the revocation court’s ultimate decision to run the sentences

consecutive to each other and to his sentence at 606-2012.           See N.T.,

5/3/2013, at 4-8.   Appellant did not file a motion to modify the sentence

imposed.3   Therefore, Appellant has not preserved this issue, and it is

waived. An issue that is waived is frivolous. See Commonwealth v.

Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding that when an issue

has been waived, “pursuing th[e] matter on direct appeal is frivolous”).

Consequently, we agree with counsel that this appeal is frivolous.

     Even if Appellant had not waived this issue, we agree with counsel that

baldly challenging the exercise of the revocation court’s discretion in

imposing a sentence concurrently or consecutively does not raise a




3
  Due to PCRA counsel’s failure in the PCRA appeal to develop properly
Appellant’s claim that his revocation counsel was ineffective because he did
not file post-sentence motions, this Court held that Appellant was not
entitled to reinstatement of his right to file post-sentence motions nunc pro
tunc. Beer, 2016 WL 6777553, at *4. However, as set forth infra, even if
this issue had been preserved properly, Appellant’s issue does not raise a
substantial question.



                                    -5-
J-S28043-17


substantial question.4 Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.

Super. 2013).

     Based on the foregoing, we conclude that Appellant’s issue challenging

the discretionary aspects of his sentence is frivolous.   Moreover, we have

conducted “a full examination of the proceedings” and conclude that “the

appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248. Thus, we

affirm the judgment of sentence and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2017




4
   The writer of this Memorandum has previously inveighed against the
virtually unfettered discretion given trial judges deciding whether to impose
consecutive or concurrent sentences.          Appellant was sentenced to an
aggregate of five-and-a-half to 19 years.             Had the sentences run
concurrently, he could have received three to ten years. In either event,
this Court could not reverse. See Commonwealth v. Zirkle, 107 A.3d
127, 136 (Pa. Super. Ct. 2014) (Strassburger, J., concurring).



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