J-S48008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MICHAEL JOHN CLARK

                        Appellant                    No. 1195 WDA 2014


           Appeal from the Judgment of Sentence June 23, 2014
             In the Court of Common Pleas of Jefferson County
            Criminal Division at No(s): CP-33-CR-0000268-2009


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                       FILED OCTOBER 26, 2015

     Appellant, Michael John Clark, appeals from the judgment of sentence

entered on June 23, 2014, in the Court of Common Pleas of Jefferson

County. Additionally, Clark’s court-appointed counsel, Mark Allan Wallisch,

Esquire, has filed an application to withdraw as counsel pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). After careful review, we affirm Clark’s judgment of

sentence and grant counsel’s petition to withdraw.

     On December 16, 2009, Clark entered a guilty plea to delivery of a

controlled substance, 35 P.S. § 780-113(a)(30), and was sentenced to five

years in the Jefferson County Intermediate Punishment Program, including 6

months’ partial confinement, with work release in the Jefferson County Jail.

On November 2, 2011, Clark was found to be in violation of the conditions of
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his probation. The court extended his sentence in the County Intermediate

Punishment program for two years, including six additional months of partial

confinement and 90 days of electronic monitoring. On November 14, 2012,

Clark was again found to be in violation of his probation, after which the

revocation court re-sentenced Clark to two years in the State Intermediate

Punishment Program.

     Relevant to the instant proceeding, Clark appeared for yet another

revocation hearing on June 23, 2014, at which it was determined that Clark

had been administratively expelled from the State Intermediate Punishment

Program due to various infractions. See N.T., Revocation Hearing, 6/23/14

at 22. Thereafter, the revocation court revoked Clark’s participation in the

State Intermediate Punishment Program, and resentenced him to four to

fifteen years of incarceration, with credit for time served.   Clark filed a

motion to reduce sentence, which the court denied.       This timely appeal

followed.

     Attorney Wallisch has requested to withdraw and has submitted an

Anders brief in support thereof contending that Clark’s appeal is frivolous.

The Pennsylvania Supreme Court has articulated the procedure to be

followed when court-appointed counsel seeks to withdraw from representing

an appellant on direct appeal.

        [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 arguably believes supports the appeal; (3) set

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           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).

        Attorney   Wallisch     has    substantially   complied   with   all   of   the

requirements of Anders as articulated in Santiago. Additionally, Attorney

Wallisch confirms that he sent a copy of the Anders brief as well as a letter

explaining to Clark that he has the right to proceed pro se or the right to

retain new counsel. A copy of the letter is appended to Attorney Wallisch’s

petition. See Commonwealth v. Daniels, 999 A.2d 5990, 594 (Pa. Super.

2010); Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).

        We now proceed to examine the issue counsel sets forth in the Anders

brief.1

        Whether the trial court abused its discretion when it revoked
        Appellant’s State Intermediate Punishment and re-sentenced
        him to serve a sentence of incarceration in a State Correctional
        Institution for a minimum of four (4) years to a maximum of
        fifteen (15) years with credit for time served for [A]ppellant’s
        failure to complete State Intermediate Punishment.

Appellant’s Brief at 4.

        Our standard when reviewing a sentence imposed following the

revocation of probation is as follows.

        Our review is limited to determining the validity of the probation
        revocation proceedings and the authority of the sentencing court
____________________________________________


1
    Clark has not filed a response to Attorney Wallisch’s petition to withdraw.



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     to consider the same sentencing alternatives that it had at the
     time of the initial sentencing. Also, upon sentencing following
     revocation of probation, the trial court is limited only by the
     maximum sentence that it could have imposed originally at the
     time of the probationary sentence.

Commonwealth v. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation

omitted), appeal denied, 94 A.3d 1009 (Pa. 2014).

     Clark challenges the discretionary aspects of his sentence.          In

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc),

we concluded that “this Court’s scope of review in an appeal from a

revocation sentencing includes discretionary sentencing challenges.” Id. at

1034. Therefore, Clark’s claim is properly before us.

     A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

     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.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).



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      Clark challenged his sentence in a post-sentence motion and filed a

timely appeal. Clark’s appellate brief also contains the requisite Rule 2119(f)

concise statement.     We must now determine whether Smith’s challenge to

the discretionary aspects of his sentence raises a substantial question.

      “A substantial question will be found where an appellant advances 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 which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

2015) (citation omitted).      “[W]e cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”       Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013) (citation omitted). “We note that a generic

claim that a sentence is excessive does not raise a substantial question for

our review.” Id. (citation omitted).

      Clark claims in his Rule 2119(f) statement that the “sentence was

manifestly unreasonable under the circumstances of the case … and that the

[c]ourt’s reasons for the sentence did not justify the severity.” Appellant’s

Brief at 9.   Clark does not does not challenge a specific provision of the

sentencing    scheme    or   allege   that   any   particular   fundamental   norm

underlying the sentencing process was violated. This claim essentially

amounts to a bald allegation that Clark’s sentence was excessive, without

citation to legal authority. The claim fails to raise a substantial question for

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our review. Therefore, we will not review Clark’s sentencing claim.      See

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 785 (Pa. Super.

2015) (en banc) (“A defendant who fails to raise a substantial question is

not entitled to appellate review of the discretionary aspects of sentence,

even if raised in a post-sentence motion.”).

      After examining the issue contained in the Anders brief and after

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed.        Permission to withdraw as counsel

granted. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2015




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