J-S59029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
         v.                                    :
                                               :
                                               :
    RICKEY WASHINGTON                          :
                                               :
                Appellant                      :   No. 128 EDA 2017

          Appeal from the Judgment of Sentence November 28, 2016
               In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0000335-2008,
                           CP-15-CR-0003534-2008


BEFORE:       BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 03, 2017

       Rickey Washington appeals from the judgment of sentence entered

November 28, 2016, in the Court of Common Pleas of Chester County,

imposed following revocation of probation.            The trial court imposed an

aggregate revocation sentence of six to 23 months’ imprisonment, and at the

same time imposed a nine and one-half to 20 year aggregate sentence on new




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   Former Justice specially assigned to the Superior Court.
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convictions. 1,   2   Concomitant with this appeal, counsel has filed an Anders3

brief and petition for leave to withdraw from representation. Based upon the

following, we affirm on the basis of the trial court’s sound opinion, and grant

the petition to withdraw.

       The factual and procedural history of this case is set forth in the trial

court’s Pa.R.A.P. 1925(a) opinion, and there is no need to repeat it here. See

Trial Court Opinion, 4/6/2017, at 1–12.

       When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any of

the substantive issues raised on appeal. Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc).           Our review of the record

reveals counsel has complied with the requirements for withdrawal outlined in


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1 Only the revocation sentence is at issue in this appeal. The trial court
imposed a sentence of six to 23 months’ imprisonment at Docket No. 335-
2008 and a concurrent term of six to 23 months’ imprisonment at Docket No.
3534-2008, granted credit for time served, and immediately re-paroled
Washington so that he could begin serving the sentence imposed on the new
convictions.

2 On September 13, 2016, at Docket No. 1193-2016, Washington entered an
open plea to, inter alia, fleeing or attempting to elude a police officer. 75
Pa.C.S. § 3733(a), graded as a felony of the third degree. On September 15,
2016, at Docket No. 871-2016, Washington was found guilty by a jury of
burglary, 18 Pa.C.S. § 3502(a)(1), criminal trespass, 18 Pa.C.S. §
3503(a)(1)(ii), aggravated assault, 18 Pa.C.S. § 2702(a)(4), and related
offenses. See Trial Court Opinion, 4/6/2017, at 5–7.

3Anders v. California, 386 U.S. 738 (1967). See also Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).

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Anders, supra, and its progeny. Notably, counsel completed the following:

(1) she filed a petition for leave to withdraw, in which she states she has made

a conscientious review of the record and concludes the appeal is wholly

frivolous; (2) she filed an Anders brief pursuant to the dictates of

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); (3) she

furnished a copy of the Anders brief to Washington; and (4) she advised

Washington of his right to retain new counsel or proceed pro se.                    See

Cartrette, supra at 1032 (discussing procedural requirements counsel must

satisfy in requesting to withdraw from representation and substantive

requirements      of   Anders      brief).         Moreover,   we   have received    no

correspondence from Washington supplementing the Anders brief.4

       Therefore, we proceed “to make a full examination of the proceedings

and make an independent judgment to decide whether the appeal is in fact

wholly frivolous.” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.

Super. 2015) (quotations and citation omitted). In so doing, we review not

only the issues identified by counsel in the Anders brief, but examine all of

the proceedings to “make certain that appointed counsel has not overlooked




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4 This Court, upon consideration of Washington’s June 15, 2017 application
for relief, entered an order permitting Washington to file a response to
counsel’s petition to withdraw and Anders brief, either pro se or via privately
retained counsel, within 30 days of the date the order is filed. See Order,
7/10/2017. No response was received by this Court.

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the existence of potentially non-frivolous issues.” Id. at 1249 (footnote

omitted).

      The sole issue identified in the Anders brief is a challenge to the

discretionary aspects of the revocation sentence.   See Anders Brief at 5.

      A challenge to the discretionary aspects of a sentence is not absolute,

but rather, “must be considered a petition for permission to appeal.”

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

(quotation and citation omitted). To reach the merits of a discretionary issue,

this Court must determine:

            whether the appeal is timely; (2) whether Appellant
            preserved [the] issue; (3) whether Appellant's brief includes
            a concise statement of the reasons relied upon for allowance
            of appeal with respect to the discretionary aspects of
            sentence; and (4) whether the concise statement raises a
            substantial question that the sentence is appropriate under
            the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa. Super. 2013)

(citation omitted).

      Counsel complied with the procedural requirements for this appeal by

filing both a timely post-sentence motion for reconsideration of sentence and

a timely notice of appeal. Counsel also included in the Anders brief a concise

statement of reasons relied upon for appeal with respect to the discretionary

aspects of the sentence, pursuant to Commonwealth v. Tuladziecki, 522

A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f).      Therefore, we must consider

whether Washington raised a substantial question justifying our review.


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      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Bynum-Hamilton,

135 A.3d 179, 184 (Pa. Super. 2016) (citation omitted).

      Here, the Rule 2119(f) statement in the Anders brief declares, in

pertinent part:

      Although the revocation sentences [on Docket Nos. 335-2008 and
      3534-2008] were imposed prior to an aggregate sentence of nine
      and a half (9½) to twenty (20) years on docket numbers CP-15-
      CR-871-2016 and CP-15-CR-1193-2016, counsel is constrained to
      conclude the sentences were within the wide discretion of the
      sentencing court and, therefore, not improper.

Anders Brief at 4. Notwithstanding the inadequacy of this statement, we will

address the merits of the discretionary aspects of sentence claim.       See

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating that

where counsel files an Anders brief and petition to withdraw, this Court will

review the discretionary aspects of the sentence even though the claim is not

properly preserved).

      Based on our review of the Anders brief, the record, the applicable law,

and the opinion of the trial court, we affirm on the basis of the thorough

discussion of the Honorable Anthony A. Sarcione. See Trial Court Opinion,

4/6/2017, at 12–45 (finding, inter alia:     (1) Washington’s discretionary




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aspects of sentencing claim5 fails to demonstrate an abuse of discretion where

the revocation sentence is an aggregate concurrent sentence, within the

standard and mitigated range of the applicable sentencing guidelines,6 and

Washington received credit for time served and was immediately paroled on

both dockets; (2) the trial court considered Washington’s lengthy prior record

and fact these were Washington’s fourth probation violation (Docket No. 3534-

2008) and fifth probation violation (Docket No. 335-2008), these probation

violations stemmed from grave and violent new convictions, Washington’s

prior record is lengthy and disturbing, and Washington has anger and mental

health issues, suffers from chronic substance abuse, and avoids responsibility

for his actions as evidenced by his new conviction for fleeing or attempting to

elude police officer and his prior status as a fugitive; and (3) the trial court

structured Washington’s sentence “so that Washington would be deemed to

have served his revocation sentence first in order to begin serving his State

sentence on the new convictions without a detainer on him, so that he would

be immediately eligible to participate in the rehabilitative programs that are


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5In the trial court, counsel filed a concise statement pursuant to Pa.R.A.P
1925(b), contending that the court failed to give appropriate weight to
mitigating factors. See Concise Statement, 2/22/2017.

6 We recognize that the sentencing guidelines do not apply to a revocation
sentence. See 204 Pa. Code § 303.1(b); Commonwealth v. Pasture, 107
A.3d 21, 27 (Pa. 2014).




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available to him at the State Prison in order to address his personal

issues….”7). We discern no abuse of discretion on the part of the trial court.8

        Finally, our independent review discloses no other non-frivolous claim

that Washington could raise on appeal.9          Accordingly, we affirm and grant

counsel’s petition to withdraw.


Judgment of sentence affirmed. Petition to withdraw granted.10




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2017




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7   Trial Court Opinion, 4/10/2017, at 35.

8We review a sentence imposed following the revocation of probation for an
abuse of discretion. Cartrette, supra, 83 A.3d at 1041.

9 When reviewing the outcome of a revocation proceeding, this Court is limited
to determining the validity of the proceeding, the legality of the judgment of
sentence imposed after probation revocation, and the discretionary aspects of
sentencing. Cartrette, id. at 1035–1037.

10 In the event of further proceedings, the parties are directed to attach a copy
of the trial court’s April 6, 2017 opinion to this memorandum.

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