J-S70028-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
KEITH BEAVER,                            :
                                         :
                  Appellant              :   No. 1163 EDA 2015

          Appeal from the Judgment of Sentence March 18, 2015,
                Court of Common Pleas, Delaware County,
             Criminal Division at No. CP-23-CR-0003379-2010

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED DECEMBER 08, 2015

      Keith Beaver (“Beaver”) appeals from the judgment of sentence

entered following the revocation of his probation and parole.    His court-

appointed counsel (“Counsel”) has filed a petition seeking permission to

withdraw and a brief in support thereof pursuant to Anders v. California,

386 U.S. (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).   For the following reasons, we deny Counsel’s petition and remand

for further action in conformance with our decision.

      Counsel seeking to withdraw pursuant to Anders must fulfill certain

requirements.    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.




*Retired Senior Judge assigned to the Superior Court.
J-S70028-15


Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).                 We

have 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 any additional points worthy
            of this Court's attention.

Id. (citations omitted).

      Moreover, there are requirements as to precisely what an Anders

brief must contain:

            [T]he 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 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. If appointed counsel has met these obligations,

it is this Court’s responsibility “to make a full examination of the proceedings

and make an independent judgment to decide whether the appeal is in fact



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wholly frivolous.” Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa.

Super. 2015).      “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. (citation omitted).

        We conclude that Counsel has adequately complied with these

requirements. He has filed an application with this Court stating that after

reviewing the record, he finds this appeal to be frivolous and without merit.

In conformance with Santiago, the brief filed by Counsel includes a

summary of the procedural history and sets forth one issue that could

arguably support an appeal. Counsel explains why it would be frivolous to

raise this issue on appeal and states his conclusions to that effect. Finally,

Counsel has appended to his application the letter that he sent to Beaver,

which enclosed his application to withdraw and Anders brief, and advised

Beaver that he may proceed pro se or with private counsel.1 Accordingly, we

undertake our independent review to determine whether this appeal is wholly

frivolous.

        We summarize the relevant factual and procedural histories as follows.

In 2011, Beaver pled nolo contendere to statutory sexual assault, indecent

assault and endangering the welfare of a child. He was sentenced to a total

of seventeen years of sex offender probation. In 2014, Beaver was found to


1
    Notably, Beaver has filed a pro se advocate’s brief.


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have violated his probation, and the trial court resentenced him to time-

served to twenty-three months on the endangering the welfare of children

conviction, but allowed “immediate parole upon an approved parole plan.”

Certificate of Imposition of Judgment of Sentence, 2/20/14. The trial court

also imposed a sentence of ten years of probation on the statutory sexual

assault conviction. Id.

      In March 2015, the trial court found that Beaver violated the terms of

his probation and parole by visiting websites forbidden by the terms of his

probation and by being discharged from a mandatory sex offender treatment

program for failure to abide by its rules. N.T., 3/18/15, at 4-5, 42. The trial

court revoked Beaver’s parole and probation and resentenced him to the

“full back time of 572 days” on the endangering the welfare of a child

conviction, in addition to a concurrent term of eighteen to thirty-six months

of incarceration on the statutory sexual assault conviction.     Certificate of

Judgment of Sentence, 3/18/15.         Beaver filed a timely post-sentence

motion, but he filed a notice of appeal before the trial court disposed of it.

In response to the trial court’s directive to file a statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b), Counsel filed a

statement indicating his intention to file an Anders brief, as permitted by

Pa.R.A.P. 1925(c)(4).

      The sole issue that Counsel presents is “[w]hether the aggregate

sentence imposed … was harsh and excessive under the circumstances[.]”



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Anders Brief at 1. This claim is addressed to the discretionary aspects of

Beaver’s sentence.    There is no absolute right to appeal when challenging

the discretionary aspect of a sentence. Commonwealth v. Cartrette, 83

A.3d 1030, 1042 (Pa. Super. 2013) (en banc). Before we may review the

merits of a challenge to the discretionary aspects of a sentence, we must

determine: (1) whether appellant has filed a timely notice of appeal; (2)

whether the issue was properly preserved at sentencing or in a motion to

reconsider and modify sentence; (3) whether appellant's brief has a fatal

defect; 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. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),

appeal denied, 909 A.2d 303 (Pa. 2006). The record reveals that the notice

of appeal was timely filed. Although the docket indicates that Beaver filed a

post-sentence motion on March 26, 2015, it was not included in the certified

record on appeal and so we cannot discern whether this issue was properly

raised.    However, for purposes of this appeal, we will assume that it was

properly raised therein. Further, there is a briefing defect, as Counsel has

not included a statement as required by Pa.R.A.P. 2119(f) in the Anders

brief.    The Commonwealth has not objected to that omission, and so this

defect does not preclude our review. See Commonwealth v. Antidormi,

84 A.3d 736, 759 (Pa. Super. 2014).




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      The fourth factor of the Evans test as set forth above requires that we

consider whether the issue presented by Counsel raises a substantial

question requiring us to review the discretionary aspects of the sentence.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Moury, 992 A.2d

162, 170 (Pa. Super. 2010).      A substantial question exists only when an

appellant advances a colorable argument that the sentence is either

inconsistent with a specific provision of the Sentencing Code or contrary to

the fundamental norms which underlie the sentencing process. Id. Counsel

claims   that   Beaver’s   sentence   is    excessively    long    and    therefore

inappropriate. Anders Brief at 4. However, a bald claim of excessiveness

does not raise a substantial question so as to invoke our review.              See

Commonwealth v. Reynolds, 835 A.2d 720, 733 (Pa. Super. 2003).

Accordingly, we agree with Counsel that there is no merit to this claim.2

      Nonetheless,   our   independent     review   of    the   record   reveals   a

potentially non-frivolous issue. When imposing Beaver’s sentence, the trial

court did not have the benefit of a pre-sentence investigative report and it

stated only that although Beaver was in compliance with “some aspects of


2
  In his discussion on this issue, Counsel includes one sentence that seems
to allege a separate claim: that the trial court erred by not considering
certain mitigating factors. Anders Brief at 4. A claim that the trial court
failed to consider mitigating factors, by itself, does not present a substantial
question so as to invoke our review. Commonwealth v. Swope, __ A.3d
__, 2015 WL 5439772 at *4 (Sept. 16, 2015). Accordingly, to the extent
that Counsel was attempting to raise such a claim, he fails.


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the treatment … it’s also clear that there have been violations[.]”      N.T.,

3/18/15, at 42.     It then imposed the sentence recommended by the

Department of Adult Probation and Parole (although it did not state the

terms of this recommended sentence), instructed Counsel to advise Beaver

of his post-sentence and appellate rights, and concluded the proceedings.

Id. Our law provides that

            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
            failure to comply with these provisions shall be
            grounds for vacating the sentence or resentence and
            resentencing the defendant.

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

denied, 109 A.3d 678 (Pa. 2015) (quoting Commonwealth v. Cartrette,

83 A.3d 1030, 1040–1041 (Pa. Super. 2013)); see also 42 Pa.C.S.A. §

9721(b) (“In every case in which 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.”). “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




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character   of   the   offender.”   Colon,    102   A.3d    at    1044    (quoting

Commonwealth v. Crump, 995 A.2d 1280, 1282-83 (Pa. Super. 2010)).

      Based upon the record before us, there appears to be a non-frivolous

issue as to whether the trial court complied with its obligation to state the

reasons for the sentence it imposed on Beaver. Such determinations are not

subject to a bright-line rule, but are highly dependent on the facts and

circumstances of each sentencing proceeding. See Antidormi, 84 A.3d at

761 (recognizing that the trial court’s obligation is met where “the record as

a whole … reflect[s] due consideration … of the statutory considerations[.]”).

As an indigent defendant on direct appeal, Beaver is entitled to the benefit of

counsel to assess whether this claim is viable. Woods, 939 A.2d at 898.

Accordingly, we deny Counsel’s petition to withdraw and remand for the

filing of either an advocate’s brief or another Anders brief.3

      Petition to withdraw denied.         Case remanded.        Panel jurisdiction

retained.

      Platt, J. joins the Memorandum.

      Lazarus, J. concurs in the result.




3
   On November 19, 2015, Beaver filed a motion with this Court attempting
to raise additional claims of trial court error, including the issue we have
identified. In light of our disposition, we deny Beaver’s motion as moot.
However, we instruct that on remand Counsel should consider whether to
raise the other issues Beaver identified in this motion as well as the claim he
raised in the pro se brief he filed in support of this appeal.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2015




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