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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

BERNARD REDDICK,

                            Appellant                No. 130 EDA 2016


           Appeal from the Judgment of Sentence December 4, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0007822-2013


COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BERNARD RIDDICK,

                            Appellant                No. 132 EDA 2016


           Appeal from the Judgment of Sentence December 4, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0007475-2013


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 27, 2016

       Appellant, Bernard Reddick, appeals from the judgments of sentence

entered following the violation of his parole and probation in the above-

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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captioned matters.       Appellate counsel has filed a petition to withdraw his

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

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

govern a withdrawal from representation on direct appeal.1              We grant

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

       We summarize the procedural history of this case as follows.            On

February 11, 2014, Appellant entered a plea of guilty to one count of retail

theft at CP-23-CR-0007475-2013.            On that date, the trial court sentenced

Appellant to serve a term of incarceration of time served to twenty-three

months. On March 17, 2014, Appellant entered a plea of guilty to one count

of retail theft at CP-23-CR-0007822-2013.           On that date, the trial court

sentenced Appellant to serve a term of incarceration of time served to

twenty-three months, followed by three years of probation. Subsequently,

Appellant was arrested on additional charges of retail theft, and a bench

warrant was issued. A Gagnon I hearing was held on November 20, 2015,

and a Gagon II hearing was held on December 4, 2015.2 At the conclusion


____________________________________________


1
  We observe that Appellant is referred to as “Bernard Reddick” in one trial
court docket and as “Bernard Riddick” in the second trial court docket. In
his Anders brief, counsel notes that for the sake of consistency, he refers to
Appellant as “Mr. Reddick.”
2
  In Commonwealth v. Heilman, 876 A.2d 1021 (Pa. Super. 2005), we
summarized the probation revocation process as follows:

(Footnote Continued Next Page)


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of the Gagnon II hearing, the trial court found Appellant to be in violation

of his parole at CP-23-CR-0007475-2013, revoked his parole, and sentenced

Appellant to his full back time with immediate parole.           At CP-23-CR-

0007822-2013, the trial court found Appellant to be in violation of his

parole, revoked his parole, and sentenced him to full back time with

immediate parole.         In addition, the trial court found Appellant to be in

violation of his probation at CP-23-CR-0007822-2013, revoked his probation,

and sentenced Appellant to serve a term of incarceration of twelve to thirty-

                       _______________________
(Footnote Continued)

            In Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656,
      93 S. Ct. 1756 (1973), the United States Supreme Court held
      that a defendant accused of violating the terms of his probation
      is entitled to two hearings prior to formal revocation and re-
      sentencing.

             When a parolee or probationer is detained pending a
             revocation hearing, due process requires a
             determination at a pre-revocation hearing, a
             Gagnon I hearing, that probable cause exists to
             believe that a violation has been committed. Where
             a finding of probable cause is made, a second, more
             comprehensive hearing, a Gagnon II hearing, is
             required before a final revocation decision can be
             made.

      Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super.
      2001). The Gagnon II hearing requires two inquiries: (1)
      whether the probationer has in fact violated one of the
      conditions of his probation, and, if so, (2) should the probationer
      “be recommitted to prison or should other steps be taken to
      protect society and improve chances of rehabilitation.”         Id.
      (quoting Gagnon, supra at 784).

Heilman, 876 A.2d at 1026-1027.



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six months.    Appellant did not file post-sentence motions.       This timely

appeal followed the imposition of the new judgments of sentence.

      As noted, counsel has filed a petition to withdraw from representation.

Before we address the questions raised on appeal, we must resolve appellate

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

1030 (Pa. Super. 2013) (en banc).          There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on direct

appeal. The procedural mandates are that 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 brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within the petition

to withdraw, counsel averred that he conducted a conscientious review of

the record and pertinent legal research.      Following that review, counsel

concluded that the present appeal is frivolous.     Counsel sent Appellant a

copy of the Anders brief and petition to withdraw, as well as a letter, a copy

of which is attached to the petition to withdraw.      In the letter, counsel

advised Appellant that he could represent himself or that he could retain

private counsel.




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      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago.       The brief sets forth the

procedural history of this case and outlines pertinent case authority.       We

thus conclude that the procedural and briefing requirements for withdrawal

have been met.

      Counsel presents the following issue for our review:

            Whether the 12 to 36 months of incarceration imposed in
      addition to the back time in these cases is harsh and excessive
      under the circumstances and whether the Lower Court provided
      adequate reasons for imposing it?

Anders Brief at 2 (italics in original).

      Appellant’s sole issue challenges the discretionary aspects of his

sentence.   However, Appellant waived any challenges to the discretionary

aspects of his sentence by failing to raise such issue to the trial court.

      As this Court clarified in Cartrette, our scope of review following the

revocation of probation is not limited solely to determining the validity of the


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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.   Rather, it also includes challenges to the discretionary

aspects of the sentence imposed.      Specifically, we unequivocally held that

“this Court’s scope of review in an appeal from a revocation sentencing

includes discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034.

Further, as we have long held, 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. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

      It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).       Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.    Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

            [W]e 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

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           to reconsider and modify sentence, see Pa.R.Crim.P.
           [708]; (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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

     Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.” Pa.R.A.P. 302(a). 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. Moury, 992 A.2d at

170 (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In

addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must

be filed within ten days of the imposition of sentence following the

revocation of probation.       Pa.R.Crim.P. 708(D).   As the comment to

Pa.R.Crim.P. 708 explains:

     Issues properly preserved at the sentencing proceeding need
     not, but may, be raised again in a motion to modify sentence in
     order to preserve them for appeal. In deciding whether to move
     to modify sentence, counsel must carefully consider whether the
     record created at the sentencing proceeding is adequate for
     appellate review of the issues, or the issues may be waived.

Pa.R.Crim.P. 708 cmt.     Thus, an objection to a discretionary aspect of a

sentence is waived if not raised in a post-sentence motion or during the

sentencing proceedings.      See Commonwealth v. Parker, 847 A.2d 745



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(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was

waived because appellant did not object at sentencing hearing or file post-

sentence motion).

      Herein, the first requirement of the four-part test is met because

Appellant brought a timely appeal.      However, our review of the certified

record reflects that Appellant waived his challenge to the discretionary

aspects of his sentence by failing to raise the claim either at the sentencing

proceeding or by means of a post-sentence motion. Thus, this issue has not

been properly preserved for appeal, and the record is not adequate to allow

appellate review of Appellant’s claim. Accordingly, we deem this issue to be

waived.

      We also have independently reviewed the record in order to determine

whether there are any non-frivolous issues present in this case that

Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.

Super. 2014).   Having concluded that there are no meritorious issues, we

grant Appellant’s counsel permission to withdraw, and we affirm the

judgment of sentence.

      Petition of counsel to withdraw is granted.    Judgments of sentence

affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




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