J. S42042/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
JEREMY COOL,                               :         No. 1925 MDA 2016
                                           :
                          Appellant        :


            Appeal from the Judgment of Sentence, August 9, 2016,
               in the Court of Common Pleas of Luzerne County
               Criminal Division at No. CP-40-CR-0001360-2015


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 18, 2017

        Jeremy Cool appeals from the August 9, 2016 judgment of sentence

where the trial court resentenced him to serve a term of 8 to 16 months’

imprisonment for retail theft.1         Matthew P. Kelly (“Attorney Kelly”),

appellant’s counsel, has filed a petition to withdraw, alleging that the direct

appeal is wholly frivolous, accompanied by an Anders brief.2 After careful

review, we grant the petition to withdraw and affirm.

        The facts, as recounted by the trial court, are as follows:

                   On February 27, 2014, [appellant] was
              charged with Retail Theft, 18 Pa. C.S.A. § 3929
              §§ A1 after absconding with merchandise from the


1
    18 Pa.C.S.A. § 3929(a)(1).
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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          Kmart    Department       Store     in    Edwardsville,
          Pennsylvania.

                On September 2, 2015, [appellant] pled guilty
          to Retail Theft. . . . On October 9, 2015, [appellant]
          was sentenced to two (2) to four (4) months in the
          Luzerne County Correctional Facility followed by
          one (1) year probation.

                 On October 14, 2015, [appellant] filed a Motion
          for Modification of Sentence. On October 20, 2015,
          the Motion for Modification was denied.             On
          October 26, 2015, [appellant] filed a Petition for
          Parole to Inpatient Treatment to White Deer Run of
          Allenwood, Pennsylvania.       On October 28, 2015,
          without objection of the Commonwealth, [appellant’s
          p]etition for inpatient treatment was granted. On
          November 23, 2015, [appellant] filed an Application
          for Parole indicating that at the time of parole he will
          have successfully completed inpatient treatment at
          White Deer Run of Allenwood. After hearing, on
          December 11, 2015, the Court granted [appellant’s]
          application for parole effective December 14, 2015
          with the stipulation that [appellant] reside at the
          James A. Casey House, LLC.

                 On June 10, 2016, a probation violation report
          was filed against [appellant] alleging a new arrest.
          After continuance was granted in this matter, by
          admission of [appellant], [appellant’s] probation was
          revoked. [Appellant] was to be transferred to a
          State Correctional Institute to be evaluated for State
          Intermediate Punishment. The sentencing was to be
          scheduled by video. On July 27, 2016, [appellant]
          filed a Motion for Reconsideration of sentence. On
          August 9, 2016, after hearing on [appellant’s]
          Motion, [appellant’s] Motion for Modification was
          denied and [appellant] was resentenced to eight (8)
          to sixteen (16) months consecutive to Case No. 3219
          of 2015.

               On August 10, 2016, [appellant] filed a Motion
          to Modify Sentence for the following reasons:



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               a.    [Appellant’s] crimes are     due   to   his
                     serious heroin addiction;

               b.    [Appellant] is amenable to treatment, as
                     evidenced by his successfully completing
                     the    White      Deer  Run     inpatient
                     rehabilitation program;

               c.    This Honorable Court is aware of
                     [appellant’s] addiction as evidenced by
                     the Court’s original attempt to have
                     [appellant] evaluated for the State
                     Intermediate Punishment Program;

               d.    [Appellant] could have been sentenced
                     concurrently with with case 3219-15;

               e.    [Appellant] could have been sentenced
                     to a County sentence; and

               f.    [Appellant] has private insurance and
                     has an opportunity to attend a long term
                     rehabilitation program if serving a
                     sentence at LCCF.[3]

                    On August 11, 2016, the Court              denied
               [appellant’s] Motion to Modify Sentence.

                     On November 18, 2016, [appellant] filed an
               Application to File Appeal Nunc Pro Tunc.          On
               November 22, 2016, the Court granted [appellant’s]
               Motion permitting [appellant] to file an appeal within
               thirty (30) days of the date of the order.         On
               November 22, 2016, [appellant] filed a Notice of
               Appeal to the Superior Court.

                    This Court entered an Order on December 7,
               2016 directing [appellant] to file of record a Concise
               Statement of Errors Complained of on Appeal
               pursuant to Pa. R.A.P. 1925(b) and serve a copy of
               same upon the District Attorney and this Court
               pursuant to Pa. R.A.P. 1925(b)(1).          The Order

3
    “LCCF” is an abbreviation for Luzerne County Correctional Facility.


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               required the Statement to concisely identify each
               ruling or error [a]ppellant intends to challenge with
               sufficient detail to identify all pertinent issues for the
               Judge to consider. Further, the Order provided that
               any issue not properly included in the Concise
               Statement and timely filed and served within
               twenty-one (21) days of the date of the Order shall
               be deemed waived pursuant to Rule 1925(b).

                     On December 22, 2016, [appellant] filed a
               Statement of Matters Complained of on Appeal
               Pursuant to Rule 1925(b). On December 28, 2016,
               the Commonwealth filed Commonwealth’s Response
               to [appellant’s] Concise Statement of Matters
               Complained     of    on   Appeal  Pursuant   to
               Pa.R.A.P. 1925([b]).

Trial court opinion, 3/13/17 at 1-2.

      Appellant raises one issue for this court’s review: “Whether the trial

court abused its discretion in sentencing the [a]ppellant[?]”               (Appellant’s

brief at 1.)

      On May 8, 2017, Attorney Kelly filed in this court a petition to

withdraw as counsel and an Anders brief, wherein he states that the appeal

is wholly frivolous and no meritorious issues exist.

                     A request by appointed counsel to withdraw
               pursuant to Anders and Santiago gives rise to
               certain requirements and obligations, for both
               appointed counsel and this Court. Commonwealth
               v. Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
               2015).

                     These requirements and the significant
                     protection they provide to an Anders
                     appellant arise because a criminal
                     defendant has a constitutional right to a
                     direct appeal and to counsel on that
                     appeal.   Commonwealth v. Woods,


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               939 A.2d 896, 898 (Pa.Super. 2007).
               This Court has summarized these
               requirements as follows:

                    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 additional points
                    worthy     of    the     Court’s
                    attention.

               Woods, 939     A.2d   at   898   (citations
               omitted).

               There are also requirements as to the
               precise content of an Anders brief:

                    The     Anders     brief    that
                    accompanies court-appointed
                    counsel’s petition to withdraw
                    . . . 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


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                       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.

           Id. at 1248. If this Court determines that appointed
           counsel has met these obligations, it is then our
           responsibility “to make a full examination of the
           proceedings and make an independent judgment to
           decide whether the appeal is in fact wholly frivolous.”
           Id. at 1248. In so doing, we review not only the
           issues identified by appointed counsel in the Anders
           brief, but examine all of the proceedings to “make
           certain that appointed counsel has not overlooked
           the existence of potentially non-frivolous issues.”
           Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Kelly’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant; advised him of his right to retain new counsel,

proceed pro se, and/or raise any additional points that he deems worthy of

this court’s attention; and attached to the Anders petition a copy of the

letter sent to appellant as required under Commonwealth v. Millisock,

873 A.2d 748, 751 (Pa.Super. 2005).       See Commonwealth v. Daniels,


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999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are

quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”). As Attorney Kelly has

complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.

      Once    counsel   has   met   his   obligations,   “it   then   becomes   the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to the merits of appellant’s appeal.

      Appellant asserts that the trial court abused its discretion when

imposing sentences. Specifically, appellant alleges that the trial court failed

to consider his heroin addiction and successful completion of an inpatient

rehabilitation program and that if he received a county sentence, he would

have an opportunity to attend a long-term rehabilitation program. Appellant

further asserts that the trial court abused its discretion when it failed to

sentence him concurrently with a sentence that he was then serving at

Luzerne County Docket No. 3219 of 2015.

      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


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           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. Swope, 123 A.3d 333, 340 (Pa.Super. 2015), quoting

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015).           See also Commonwealth v.

Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc) (this court’s scope of

review in an appeal from a revocation sentencing includes discretionary

sentencing challenges).

           Upon      revoking    probation,     “the   sentencing
           alternatives available to the court shall be the same
           as were available at the time of initial sentencing,
           due consideration being given to the time spent
           serving the order of probation.”           42 Pa.C.S.
           § 9771(b). Thus, upon revoking probation, the trial
           court is limited only by the maximum sentence that
           it could have imposed originally at the time of the
           probationary sentence, although once probation has
           been revoked, the court shall not impose a sentence
           of total confinement unless it finds that:

           (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.

           42 Pa.C.S. § 9771(c).




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Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014). We also note

that the sentencing guidelines do not apply to sentences imposed as the

result of probation revocations. Id. at 27.

            An appellant wishing to appeal the discretionary
            aspects of a probation-revocation sentence has no
            absolute right to do so but, rather, must petition this
            Court for permission to do so. [Commonwealth v.
            Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
            42 Pa.C.S.A. § 9781(b). Specifically, the appellant
            must present, as part of the appellate brief, a
            concise statement of the reasons relied upon for
            allowance of appeal. Malovich, 903 A.2d at 1250;
            Pa.R.A.P. 2119(f). In that statement, the appellant
            must persuade us there exists a substantial question
            that the sentence is inappropriate under the
            sentencing code.     Malovich, 903 A.2d at 1250;
            Pa.R.A.P. 2119(f).

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).

            In general, an appellant may demonstrate the
            existence of a substantial question by advancing a
            colorable argument that the sentencing court’s
            actions were inconsistent with a specific provision of
            the sentencing code or violated a fundamental norm
            of the sentencing process. Malovich, 903 A.2d at
            1252. While this general guideline holds true, we
            conduct a case-specific analysis of each appeal to
            decide whether the particular issues presented
            actually form a substantial question. Id. Thus, we
            do not include or exclude any entire class of issues
            as being or not being substantial. Id. Instead, we
            evaluate each claim based on the particulars of its
            own case. Id.

Id. at 289-290.

      Attorney Kelly included a Rule 2119(f) statement in his brief, in which

he avers that the trial court’s refusal to sentence appellant to a county



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sentence for the purpose of entering into a long-term rehabilitation program

is a substantial question that requires discretionary review.

        In the argument section of the Anders brief, Attorney Kelley asserts

that appellant alleges that the trial court failed to consider appellant’s heroin

addiction and his successful completion of an inpatient rehabilitation

program.     If the trial court had considered these rehabilitative needs, it

would have sentenced him to a county sentence where he could have

participated in a long-term rehabilitation program.      Attorney Kelly asserts

that a claim that a trial court abused its discretion when sentencing a

defendant by failing to consider his rehabilitative needs does not raise a

substantial question that a sentence was inappropriate under the Sentencing

Code.

        The trial court stated that it received a pre-sentence investigation

report.    (Notes of testimony, 8/9/16 at 10.)     “[W]here the trial court is

informed by a pre-sentence report, it is presumed that the court is aware of

all appropriate sentencing factors and considerations[.]”       Commonwealth

v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009). As a result, the trial

court was aware of appellant’s completion of an inpatient treatment program

and the possible current need for drug treatment. Further, allegations that a

sentencing court failed to adequately consider mitigating factors does not

raise a substantial question for appellate review.         Commonwealth v.

DiSalvo, 70 A.3d 900, 903 (Pa.Super. 2013).            This court agrees with



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Attorney Kelly that appellant failed to establish a substantial question that

the trial court’s decision violated the Sentencing Code or a fundamental

norm of the sentencing process.

      Attorney Kelly also reports that appellant alleges that the trial court

abused its discretion when it failed to sentence appellant concurrently with

the sentence he was serving at Luzerne County Docket No. 3219 of 2015.

Attorney Kelly explains that 42 Pa.C.S.A. § 9721 affords a sentencing court

discretion to impose a sentence concurrently or consecutively with other

sentences imposed at the same time or already imposed and that a

challenge to this exercise of discretion does not ordinarily raise a substantial

question.   See Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.

2005). This court agrees with Attorney Kelly that this issue is frivolous.

      Additionally, our independent review of the record has not disclosed

any potentially non-frivolous issues.     Consequently, we grant counsel’s

petition to withdraw, and we affirm the judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2017




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