J-S62034-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
KEVIN ANTHONY CLARKE,                    :
                                         :
                 Appellant               :     No. 460 MDA 2017

          Appeal from the Judgment of Sentence February 13, 2017
               in the Court of Common Pleas of Berks County,
            Criminal Division, at No(s): CP-06-CR-0002521-2014

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

MEMORANDUM BY STRASSBURGER, J.:          FILED OCTOBER 23, 2017

      Kevin Anthony Clarke (Appellant) appeals from his February 13, 2017

judgment of sentence to an aggregate one to three years’ imprisonment

following the revocation of his probation.   Counsel has filed a petition to

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

(1967).   We affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.

      On September 30, 2014, Appellant pled guilty to criminal trespass and

terroristic threats and was sentenced to less than two years of incarceration

followed by seven years’ probation.

            Once paroled from his sentence of incarceration, Appellant
      violated the terms of his probation because of a new arrest at




*Retired Senior Judge assigned to the Superior Court.
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        CP-06-CR-0003249-2014. At the Gagnon II[1] hearing,
        Appellant admitted the violations and proceeded informally.
        Following the recommendations of the Commonwealth, []
        Appellant was resentenced to not less than one (1) nor more
        than three (3) years’ incarceration at the Bureau of Corrections.
        Concurrent to this sentence, [for count three, terroristic threats],
        Appellant was resentenced to not less than one (1) nor more
        than three (3) years’ incarceration at the Bureau of Corrections.

               Following sentencing, a timely post sentence motion was
        filed. [The trial court] denied the motion on February 27, 2017.
        Appellant then filed an appeal on March 13, 2017.
        Subsequently, Appellant filed a concise statement of errors
        pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
        Procedure.

Trial Court Opinion, 5/23/2017, at 1 (citation omitted).

        In this Court, counsel filed both an Anders brief and a petition to

withdraw as counsel. Accordingly, the following principles guide our review.

               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.

               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

1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).


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        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). Further, our Supreme Court has specified the following

requirements for the Anders brief:

        [I]n 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 substantially complied with the

technical    requirements    set   forth    above.2   Thus,   we   now   have   the

responsibility “‘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, 1249 (Pa. Super.

2015) (quoting Santiago, 978 A.2d at 354 n. 5).




2   Appellant has not filed a response to counsel’s petition to withdraw.


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      In his Anders brief, counsel states the following question for this

Court’s review:

      Whether Appellant’s sentence of 1 to 3 years in a state
      correctional institution on two counts (concurrent) was
      manifestly excessive, clearly unreasonable, and contrary to the
      fundamental norms underlying the Sentencing Code, where the
      court imposed a sentence that failed to fully account for
      Appellant’s remorse and the nature of the probation violation?

Anders Brief at 9.

      We consider this question mindful of the following.      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)

            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.

            In determining whether a sentence is manifestly
            excessive, the appellate court must give great
            weight to the sentencing court’s discretion, as he or
            she is in the best position to measure factors such as
            the nature of the crime, the defendant’s character,
            and the defendant’s display of remorse, defiance, or
            indifference.

           Upon revoking probation, a sentencing court may choose
      from any of the sentencing options that existed at the time of
      the original sentencing, including incarceration.            [U]pon
      revocation [of probation] ... 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.     However, 42 Pa.C.S.[]
     § 9771(c) provides that once probation has been revoked, a
     sentence of total confinement may only be imposed if any of the
     following conditions exist[s]:

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

           (2) the conduct of the defendant indicates that it is
           likely that he will commit another crime if he is not
           imprisoned; or

           (3) such a sentence is essential to vindicate the
           authority of the court.

           In addition, in all cases where the court resentences an
     offender following revocation of probation ... the court shall
     make as a 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 [and] [f]ailure to comply with these provisions
     shall be grounds for vacating the sentence or resentence and
     resentencing the defendant. A trial court need not undertake a
     lengthy discourse for its reasons for imposing a sentence or
     specifically reference the statute in question, but the record as a
     whole must reflect the sentencing court’s consideration of the
     facts of the crime and character of the offender.

Commonwealth v. Colon, 102 A.3d at 1033, 1044 (Pa. Super. 2014)

(citations and quotation marks omitted).

     An appellant is not entitled to the review of challenges to the
     discretionary aspects of a sentence as of right. Rather, an
     appellant challenging the discretionary aspects of his sentence
     must invoke this Court’s jurisdiction. We determine whether the
     appellant has invoked our jurisdiction by considering the
     following four factors:

           (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

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            there is a substantial question that the sentence
            appealed from is not appropriate under the
            Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant filed a notice of appeal after preserving the issue by

filing a motion to modify sentence, and the Anders brief contains a

statement pursuant to Pa.R.A.P. 2119(f). We thus consider whether there is

a substantial question that Appellant’s sentence is inappropriate.

      Appellant contends

      that the [trial] court failed to state reasons [for imposing
      Appellant’s sentence that] comport with the requirements under
      42 Pa.C.S. § 9721(b). The [trial] court failed to follow the
      general principle 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 [Appellant], thereby creating a sentence that offends the
      fundamental norms underlying sentencing. The [trial] court’s
      failure to give these factors their proper weight in deciding
      Appellant’s sentence raises a substantial question as to the
      appropriateness of the sentence under the Sentencing Code.

Anders Brief at 17. With respect to Appellant’s latter argument, Appellant

claims that the court did not “consider the requisite factors under 42

PA.C.S.[ ] § 9721(b), particularly the rehabilitative needs of Appellant[,]”

noting that he had expressed remorse and sought to stay out of jail to

maintain his employment and be there for his children. Appellant’s Brief at

19.   Appellant also argues that the trial court did not “fully consider” the

applicable sentencing factors. Appellant is essentially requesting this Court

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to reweigh the factors in his favor, averring the trial court failed to give

“these factors proper weight.”   Id. at 17.   Such a claim does not raise a

substantial question for our review.    “We cannot re-weigh the sentencing

factors and impose our judgment in the place of the sentencing court.”

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009).

      Moreover, in this case, the trial court had the benefit of a presentence

investigation report and thus is presumed to have considered all relevant

information.   Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super.

2004).    Additionally, the trial court had the opportunity to listen to

Appellant’s allocution, on the record, at the time of sentencing. N.T.,

2/13/2017, at 4.

      Furthermore, the trial court did state reasons on the record for

sentencing Appellant to a term of total incarceration.3

      The thing that is most troubling about this matter is in a very
      short period of time after you are convicted at this docket you
      did basically the exact same thing and were sentenced by Judge
      Barrett for the same thing, terroristic threats. … And you know,
      [Appellant], I believe in giving somebody a break and giving
      somebody a second chance but your sheet goes back here
      [seven] years. I mean you’ve got plenty of time and you got a

3
  Under 42 Pa.C.S. § 9711(c), as cited supra, there are limitations on a
sentence of total confinement after the revocation of probation. A trial court
may impose a term of incarceration if it determines, inter alia, that a
defendant has been convicted of another crime.            See    42 Pa.C.S.
§ 9711(c)(1). Here, Appellant admitted that he had been convicted of
another crime, prompting the revocation of his probation.         See N.T.,
2/13/2017, at 2 (indicating that, when asked if Appellant acknowledged that
he was in violation of his probation because of a new arrest and conviction,
Appellant answered “yes.”).


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      real mix of cases here[,] sexual assault, delivery of controlled
      substances, criminal trespass. You show no signs of good faith
      here that can be relied on.

Id. at 4-5.

      Thus, we agree with counsel that Appellant’s issue regarding his

sentence is frivolous. Moreover, we have conducted “a full examination of

the proceedings” and conclude that “the appeal is in fact wholly frivolous.” 4

Flowers, 113 A.3d at 1248.        Accordingly, 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: 10/23/2017




4 We reviewed the record mindful of the fact that “the scope of review in an
appeal following a sentence imposed after probation revocation is limited to
the validity of the revocation proceedings and the legality of the sentence
imposed following revocation.” Commonwealth v. Infante, 888 A.2d 783,
790 (Pa. 2005)


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