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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JAMIE LYNN HICE,                           :
                                               :
                      Appellant                :      No. 1345 WDA 2019

        Appeal from the Judgment of Sentence Entered August 7, 2019
              in the Court of Common Pleas of Jefferson County
            Criminal Division at No(s): CP-33-CR-0000273-2013

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                FILED JULY 06, 2020

        Jamie Lynn Hice (“Hice”) appeals from the judgment of sentence

imposed following the revocation of her probation.            Additionally, Hice’s

counsel, Mark A. Wallisch, Esquire (“Attorney Wallisch”), has filed a Petition

to withdraw as counsel and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738, 744 (1967). We grant Attorney Wallisch’s Petition

to withdraw, and affirm Hice’s judgment of sentence.

        On August 21, 2013, Hice entered a negotiated guilty plea to criminal

conspiracy to commit theft by unlawful taking.1         The trial court sentenced

Hice to thirty to sixty months in prison, followed by five years of probation.




____________________________________________


1   18 Pa.C.S.A. § 903.
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Hice was granted 100 days of credit for time served. Hice did not file any

post-sentence motions or a direct appeal.

        On November 30, 2016, Hice was released from prison and placed on

parole.2 On December 20, 2018, Hice was released from parole, and began

her probation sentence. On February 7, 2019, a bench warrant was issued

for Hice’s arrest, based on allegations that Hice had violated her probation

by committing additional crimes.               Additionally, Hice was charged with

violating the technical terms of her probation by failing to regularly report to

her supervising agent, and by failing to update her address after being

evicted from her approved residence. On July 3, 2019, Hice waived her right

to a Gagnon I3 hearing, and the trial court ordered a pre-sentence

investigation report (“PSI”).

        On August 7, 2019, the trial court conducted a Gagnon II hearing,

and found Hice to be in violation of her probation.4 The trial court revoked

Hice’s probation and resentenced her to five to ten years in prison.          Hice
____________________________________________


2 The record indicates that Hice was previously paroled on March 29, 2015,
but does not indicate when, and under what circumstances, she was re-
incarcerated.

3   See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

4 The record is unclear as to whether Hice’s probation was revoked based on
the technical violations, the new criminal charges, or both. The trial court
entered an Order stating that Hice had “admit[ted] to the violations
charged.” See Gagnon Order, 7/3/19. However, the Order does not
specify whether Hice admitted solely to committing the technical violations,
or also the new criminal offenses.



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filed a post-sentence Motion for reconsideration of sentence, which the trial

court denied without a hearing.

       Hice filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.           Attorney

Wallisch filed, with this Court, an Anders brief and a Petition to withdraw as

counsel.5 Hice neither filed a pro se brief, nor retained alternate counsel for

this appeal.

       Before addressing Hice’s issue on appeal, we must determine whether

Attorney Wallisch has complied with the dictates of Anders and its progeny

in petitioning to withdraw from representation.       See Commonwealth v.

Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen

presented with an Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw.”).

Pursuant to Anders, when counsel believes that an appeal is frivolous and

wishes to withdraw from representation, he or she must

       (1) petition the court for leave to withdraw stating that after
       making a conscientious examination of the record and
       interviewing the defendant, counsel has determined the appeal
       would be frivolous, (2) file a brief referring to any issues in the
       record of arguable merit, and (3) furnish a copy of the brief to
       defendant and advise him of his right to retain new counsel or to
       raise any additional points that he deems worthy of the court’s
____________________________________________


5 Attorney Wallisch did not initially file a petition to withdraw. Accordingly,
we directed Attorney Wallisch to either file an advocate’s brief or fulfill all of
the requirements of Anders. In response, Attorney Wallisch filed a Petition
to withdraw as counsel.



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      attention. The determination of whether the appeal is frivolous
      remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citation omitted).

      Additionally, the Pennsylvania Supreme Court has explained that a

proper 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.

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

      In the instant case, our review of the Anders Brief and the Petition to

withdraw reveals that Attorney Wallisch has substantially complied with each

of the requirements of Anders/Santiago.            See Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must

substantially comply with the requirements of Anders).      Attorney Wallisch

indicates that he has made a conscientious examination of the record and

determined that an appeal would be frivolous. Further, Attorney Wallisch’s

Anders Brief comports with the requirements set forth by the Supreme

Court of Pennsylvania in Santiago. Finally, Attorney Wallisch provided Hice

with a copy of the Anders Brief and advised her of her rights to retain new

counsel or to raise any additional points deemed worthy of the Court’s


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attention.   Thus, Attorney Wallisch has substantially complied with the

procedural requirements for withdrawing from representation.           We next

examine the record and make an independent determination of whether

Hice’s appeal is, in fact, wholly frivolous.

      Attorney Wallisch presents the following issue for our review:

      Whether the [t]rial [c]ourt committed an abuse of discretion
      when it revoked [Hice’s] probation[] and re-sentenced her to
      serve a minimum of five (5) years to a maximum of ten (10)
      years in a state correctional institution given the circumstances
      of the case[?]

Anders Brief at 4.

      This issue challenges the discretionary aspects of Hice’s sentence. “A

challenge to the discretionary aspects of sentencing is not automatically

reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,

815 (Pa. Super. 2017).       Prior to reaching the merits of a discretionary

sentencing issue,

      [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 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.A. § 9781(b).

Grays, 167 A.3d at 815-16 (citation omitted).

      Hice, via Attorney Wallisch, filed a timely Notice of Appeal, preserved

her challenge in a post-sentence Motion, and included a Rule 2119(f)

Statement within the Anders brief. Additionally, Attorney Wallisch alleges


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that the trial court violated the fundamental norms underlying the

sentencing process by imposing a jail sentence based solely on a technical

violation. See Anders Brief at 7. Attorney Wallisch states that Hice’s new

charges had not been resolved before she was sentenced on the probation

violation. Id. Although the record is unclear as to whether Hice admitted to

committing the new offenses charged, see Gagnon Order, 7/3/19, supra,

Attorney Wallisch’s Statement raises a substantial question, as Hice claims

that   the     trial   court   violated        the   fundamental   norms   underlying

the sentencing process.        See Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010) (stating that “[t]he imposition of a sentence of total

confinement after the revocation of probation for a technical violation, and

not a new criminal offense, implicates the fundamental norms which underlie

the sentencing process.”).6       Accordingly, we will address Hice’s discretionary

sentencing claim.

       Hice alleges that the trial court did not state its reasons for the

sentence on the record, explain how the sentence was necessary to vindicate

the authority of the court, or conclude that it was likely that Hice would

commit another crime if she was not sentenced to a prison term. Anders

Brief at 10.
____________________________________________


6 We note that even if Hice had admitted to committing additional criminal
offenses, and Hice’s claim did not raise a substantial question, we would
nevertheless consider Hice’s discretionary sentencing claim as a part of our
independent review.



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     Our standard of review is well settled:

     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).

           The reason for this broad discretion and 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. Simply stated, the
     sentencing court sentences flesh-and-blood defendants and the
     nuances of sentencing decisions are difficult to gauge from the
     cold transcript used upon appellate review.        Moreover, the
     sentencing court enjoys an institutional advantage to appellate
     review, bringing to its decisions an expertise, experience, and
     judgment that should not be lightly disturbed.

             The sentencing court’s institutional advantage is, perhaps,
     more pronounced in fashioning a sentence following the
     revocation of probation, which is qualitatively different than an
     initial sentencing proceeding. 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
     appears 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.A. § 9721.




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

and quotation marks omitted).

      Upon revocation of probation, a sentencing court may choose from any

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

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that either “(1) the

defendant has been convicted of another crime; or (2) the conduct of the

defendant indicates that it is likely that [s]he will commit another crime if

[s]he is not imprisoned; or (3) such a sentence is essential to vindicate the

authority of the court.” Id. § 9771(c).

      Moreover, “[i]n every case in which the court … resentences an

offender following revocation of probation, … the court shall make as part of

the record, and disclose in open court at the time of sentencing, a statement

of the reason or reasons for the sentence imposed.”       Id. § 9721(b); see

also Pa.R.Crim.P. 708(D)(2) (providing that “[t]he judge shall state on the

record the reasons for the sentence imposed.”).           However, following

revocation of probation, a sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statutes in question. See Pasture, 107 A.3d at 28 (stating that “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.”).


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      Here, at sentencing, the trial court stated that it had reviewed the PSI,

and had considered Hice’s age, background, criminal record, and “everything

necessary for sentencing.” N.T., 8/7/19, at 7; see also Commonwealth v.

Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (stating that “where the

trial court is informed by a [PSI], it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has been so informed, its discretion should not be disturbed.”). Additionally,

the trial court indicated in its Opinion that it believed Hice was likely to

commit another crime if she was not imprisoned. See Trial Court Opinion,

10/4/19, at 2; 42 Pa.C.S.A. § 9771(c). Our review of the record confirms

that the trial court had sufficient information to make a fully informed

sentencing    decision   following   the    revocation   of    Hice’s   probation.

Accordingly, we conclude that the trial court’s sentence was not unduly

excessive, and Hice’s discretionary sentencing challenge is wholly frivolous.

See Colon, supra.

      Finally, our independent review of the record discloses no additional

non-frivolous issues that could be raised on appeal.          We therefore grant

Attorney Wallisch’s Petition, and affirm Hice’s judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2020




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