J-S43005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JASON HARRY LANG

                            Appellant                   No. 259 EDA 2014


          Appeal from the Judgment of Sentence December 20, 2013
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0007610-2007


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                          FILED AUGUST 05, 2014

       Appellant, Jason Harry Lang, appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas, following

revocation of his probation.           We affirm and grant counse

withdraw.

       The relevant facts and procedural history of this appeal are as follows.

On January 30, 2008, the Commonwealth filed a criminal information

charging Appellant with multiple offenses stemming from his possession of

prescription drugs and cocaine at a Montgomery Township motel.               On

October 3, 2008, Appellant entered a negotiated guilty plea at No. 7610 of

2007 to one count of possession of a controlled substance with intent to

_____________________________________________

*Former Justice specially assigned to the Superior Court.
*Justice Fitzgerald did not participate in the consideration or decision of this
case.
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                                          -113(a)(30).   That same day, the court

accepted the plea and imposed the agreed-upon sentence of one (1) to three
                                                                      1
                                                                          The court



Hearing, 10/3/08, at 14).

       Appellant subsequently violated the terms of his probation and parole

at multiple docket numbers, including No. 7610 of 2007.                   The court

conducted a revocation hearing on October 20, 2010. At the conclusion of

the hearing, the court revoked A

and deferred re-sentencing. On November 30, 2010, the court re-sentenced

Appellant as follows:

          And now, November 30, 2010, the sentence imposed on

          undergo imprisonment for not less than time served nor
          more than 23 months in the Montgomery County
          Correctional Facility, commitment to date from May 19,
          2010.

____________________________________________


1
  The trial court states that the jurist who presided ov
sentencing hearing imposed a mandatory minimum sentence, pursuant to 18
Pa.C.S.A. § 7508(a)(3)(i). (See Trial Court Opinion, filed April 7, 2014, at 3
n.3.) The certified record, however, does not confirm this assertion. Our
review of the notes of testimony reveals no mention of imposition of a
mandatory minimum sentence. Significantly, there is no evidence that the
Commonwealth provided notice of its intent to seek a mandatory minimum
sentence. See 18 Pa.C.S.A. § 7508(b) (explaining reasonable notice of

after conviction and before sentencing). Absent more, we cannot conclude
that the sentence imposed constituted a Section 7508(a)(3)(i) mandatory
minimum term.



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        [Appellant] is sentenced to probation for a period of one
        year in the custody of the Montgomery County Adult
        Probation Department consecutive to parole under
        information [Nos. 157.1 and 2499 of 2007 and No. 8262.1
        of 2005], concurrent sentences.

(N.T. Re-Sentencing Hearing, 11/30/10, at 8).

     Appellant again violated the terms of his probation and parole at the

various docket numbers, including No. 7610 of 2007. The court conducted a

revocation hearing on June 17, 2011. At the conclusion of the hearing, the

court revoked parole at No. 7610 of 2007 and ordered Appellant to serve

sixteen (16) months, nineteen (19) days of backtime. The court also made

                                            -diagnosis, inpatient program if



July 12, 2011, the parole board granted Appellant early parole to an

inpatient program at the Keystone Center in Lansdale.

     Appellant subsequently violated the terms of his probation at No. 7610

of 2007 by committing technical violations. Appellant also pled guilty to a

new firearms offense in Philadelphia.     The court initially conducted a

revocation hearing on December 6, 2013. At that time, Appellant appeared



requested to proceed pro se

allowing the public defender to remain as standby counsel.      During the

revocation hearing, the court questioned Appellant about his recent firearms

conviction in Philadelphia.   Appellant claimed he was unaware that the


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Commonwealth would utilize the Philadelphia conviction as a basis to revoke

probation at No. 7610 of 2007. At the conclusion of the hearing, the court

continued the matter.   Regarding the continuance, the court informed the

parties as follows:


         reschedule it for Tuesday, December 17, 2013, at 1:30.


         sentence[es] are, what his whole history is, answer any
         questions that he has. He has some concerns about

         same page together.

(N.T. Revocation Hearing, 12/6/13, at 16).         On December 17, 2013,

Appellant stipulated to a probation violation.   The court revoked probation

and deferred re-sentencing. On December 20, 2013, the court re-sentenced



a pro se post-sentence motion on December 30, 2013, which the court

denied on January 6, 2014.

      Appellant timely filed a pro se notice of appeal on January 14, 2014.

On January 16, 2014, the court ordered Appellant to file a concise statement

of errors complained on appeal, pursuant to Pa.R.A.P. 1925(b). On February

11, 2014, the court conducted a hearing to determine whether Appellant

knowingly sought to waive his right to counsel on direct appeal. During the

hearing, Appellant elected to proceed with counsel from the public



1925(b) statement.

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      As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009).      Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.         Substantial compliance

with these requirements is sufficient.     Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007).

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

             Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

      In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:




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          Neither Anders nor McClendon[2]
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
                    mination and assessment of the record and

          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed

          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
                                 n that the appeal is frivolous; and

          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.

Id. at 178-79, 978 A.2d at 361.

       Instantly, appellate counsel filed a petition for leave to withdraw

representation.      The petition states counsel conscientiously reviewed the

record and concluded the appeal would be wholly frivolous.            Counsel also

supplied Appellant with a copy of the withdrawal petition, the brief, and a

                                                       pro se or with new privately

retained counsel to raise any additional arguments Appellant deems
____________________________________________


2
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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necessary.   In his Anders brief, counsel provides a summary of the facts

and procedural history of the case with citations to the record.        Counsel

refers to evidence in the record that may arguably support the issues raised

on appeal, and he provides citations to relevant law. The brief also provides



Thus, counsel has substantially complied with the requirements of Anders

and Santiago.

     As Appellant has filed neither a pro se brief nor a counseled brief with

new privately retained counsel, we review this appeal on the basis of the

issues raised in the Anders brief:


        VIOLATED WHEN APPELLANT WAS NOT GIVEN ADVANCE
        NOTICE OF AN ADDENDUM TO THE NOTICE OF
        PROBATION VIOLATIONS PRIOR TO THE VIOLATION OF
        PROBATION HEARING?

        IS THE SENTENCE OF TOTAL CONFINEMENT IMPOSED BY
        THE TRIAL COURT FOLLOWING THE REVOCATION OF


(Anders Brief at 4).

     In his first issue, Appellant acknowledges that he received notice of

the technical probation violations prior to the December 6, 2013 revocation

hearing. Appellant complains, however, that the Commonwealth provided a

written addendum to the original notice during the hearing.            Appellant

maintains    the   addendum    amounted    to   his   first   notice    of   the




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untimely submission of the addendum left him with insufficient time to

prepare a defense against the charge of a direct probation violation.

Appellant concludes the Commonwealth and revocation court violated his

due process rights by failing to provide adequate notice of the direct

violation included in the addendum. We disagree.



claimed probation violations prior to commencement of the revocation

              Commonwealth v. Carter, 523 A.2d 779, 781 (Pa.Super.

1987) (quoting Commonwealth v. Quinlan, 488 Pa. 255, 258, 412 A.2d

494, 496 (1980)).

        The purpose of requiring prior written notice is to ensure

        both against the allegations of violations, and against the
        argument that the violations, if proved, demonstrate


        on the ability to contest revocation.

Carter, supra at 781 (internal citation and quotation marks omitted). See

also Reavis v. Pennsylvania Bd. of Probation and Parole, 909 A.2d 28



                                                      ffender did not assert

prejudice or suggest defense); Colon v. Pennsylvania Bd. of Probation

and Parole, 456 A.2d 1145 (Pa.Cmwlth. 1983) (holding offender was not

denied due process in connection with revocation hearing on ground that he


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had only eight (8) days to prepare defense, absent description of prejudice

or suggestion of defense).

      Instantly, the revocation court addressed the notice of the direct

violation as follows:

         Appellant next claims that he was given insufficient notice
         of the addendum to the original probation violation charges
         and, consequently, was unable to prepare a defense to
         those charges prior to the December 20, 2013 sentencing.
         Appellant first alleges that he was provided with only three
                                                     set forth in the
         addendum to the original notice of violation.           This
         allegation is false.     On December 6, 2013, Appellant
         appeared before the [court] for a violation of probation
         hearing. Appellant was made aware of the addendum to
         the original probation violation charges before this
         probation hearing was rescheduled. At the rescheduled
         December 17, 2013 violation hearing, Appellant testified
         that he received the addendum to the original probation

         he had prior notice of the charges contained in the
         addendum. Finally, it should be noted that even though
         Appellant stipulated to the violation on December 17,
         2013, both the [court] and [standby] counsel informed him
                                              for the [c]ourt to find
         that he violated his probation.

(See Trial Court Opinion at 3) (internal citations to the record omitted). We

also observe that the eleven-

addendum and the resumption of the revocation hearing gave Appellant

adequate time to prepare his case.     See Reavis, supra; Colon, supra.

Moreover, Appellant stipulated to a violation at the December 17, 2013

hearing, which was enough to revoke his probation. Thus, Appellant cannot

demonstrate prejudice as a result of the late issuance of the addendum. Id.


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Therefore, Appellant is not entitled to relief on his first issue.

      In his second issue, Appellant argues the new sentence of two to four

                                                                s of confinement,

exceeds the statutory maximum term of imprisonment for his PWID

conviction.   Appellant claims the maximum sentence the court could have



Appellant concludes his current sentence is illegal. We disagree.

       In general, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,



Commonwealth v. Hoover

standard of review is limited to determining the validity of the 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

               Id. at 322-

probation, the trial court is limited only by the maximum sentence that it



Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).

Additionally, a person who commits PWID is subject to the following

penalties:

         § 780-113. Prohibited acts; penalties

                                    *     *      *


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           (f)   Any person who violates clause (12), (14) or (30)
        of subsection (a) with respect to:

                                *     *      *

               (1.1)     Phencyclidine; methamphetamine, including
           its salts, isomers and salts of isomers; coca leaves and
           any salt, compound, derivative or preparation of coca
           leaves; any salt, compound, derivative or preparation of
           the preceding which is chemically equivalent or identical
           with any of these substances, except decocanized coca
           leaves or extracts of coca leaves, which extracts do not
           contain cocaine or ecgonine; and marihuana in a
           quantity in excess of one thousand (1,000) pounds, is
           guilty of a felony and upon conviction thereof shall
           be sentenced to imprisonment not exceeding ten
           years, or to pay a fine not exceeding one hundred
           thousand dollars ($100,000), or both, or such larger
           amount as is sufficient to exhaust the assets utilized in
           and the profits obtained from the illegal manufacture or
           distribution of these substances.

35 P.S. § 780-113(f)(1.1) (emphasis added).

     Instantly, the revocation court determined that Appellant was subject

to a maximum sent


        clearly explained to Appellant that the charge of [PWID]

                                                           ty of up

        sentencing sheet unmistakably demonstrates that the
        [PWID] charge was graded as an ungraded felony.
        Additionally, the October 3, 2008 sentencing guideline
        form clearly shows that the statutory limits for this
        ungraded felony were 60 to 120 months. There is no

        as a felony of the third degree. Rather, evidence indicates

        felony punishable by a maximum sentence of ten years.
        As Appellant had five years and one month exposure as of
        the date of sentencing, the two to four year sentence

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           imposed by the [revocation court judge] did not constitute
           an illegal sentence.

(See Trial Court Opinion at 2-3) (internal footnote omitted).

      Following the entry of the guilty plea, the court sentenced Appellant to



                                                     -sentenced Appellant to

time served to twenty-

probation.    In 2011, the court revoked parole and did not impose a new

sentence; rather, the court ordered Appellant to serve sixteen months,

nineteen days of backtime.     See Commonwealth v. Kalichak, 943 A.2d

285, 290 (Pa.Super. 2008) (explaining parole revocation does not involve

imposition of new sentence; instead, only option for parole revocation court

is to recommit defendant to serve already-imposed, original sentence).

Following the current revocation hearing, the court re-sentenced Appellant to




imprisonment, which is less than the maximum ten (10) years permissible

                                   See 35 P.S. § 780-113(f)(1.1). Therefore,

the court imposed a legal sentence. See Coolbaugh, supra. Accordingly,



withdraw.



granted.

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J-S43005-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




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