J-S23034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CANYON CLIFF BEER                          :
                                               :
                       Appellant               :   No. 1409 WDA 2018

        Appeal from the Judgment of Sentence Entered August 30, 2018
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000272-2014


BEFORE:      BENDER, P.J.E., NICHOLS, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                 FILED JUNE 18, 2019

        Appellant, Canyon Cliff Beer, appeals from the judgment of sentence of

71/2 to 15 years of incarceration, imposed by the trial court after it revoked

drug and alcohol restrictive intermediate punishment that it had imposed

following Appellant’s violation of the probation portion of a split sentence of

incarceration and probation.          Appellant’s counsel has filed a petition to

withdraw and an Anders1 brief, stating that the appeal is wholly frivolous.

After careful review, we deny counsel’s petition to withdraw and order counsel

to submit an advocate’s brief or a new Anders brief within 30 days of the date

of this memorandum.



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1   Anders v. California, 386 U.S. 738 (1967).



*    Retired Senior Judge assigned to the Superior Court.
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        On September 17, 2014, Appellant pled guilty to a single count of

delivery of a controlled substance,2 heroin, and was sentenced to one to two

years of incarceration in a state correctional facility followed by three years of

probation, with credit for time served since April 28, 2014. The maximum

sentence for this offense is 15 years of incarceration. 35 P.S. § 780-113(f)(1).

On May 24, 2015, Appellant was released from state custody on parole, at

which time the maximum date on his incarceration sentence was April 28,

2016 and his probation sentence was to run from April 28, 2016 to April 28,

2019.       Order    to   Release    on    Parole,   5/5/15;   Request   for   Special

Probation/Parole Supervision, 12/3/15.           On April 29, 2016, Appellant was

charged with a technical violation of parole and probation conditions consisting

of failing to notify his supervising officer of a change of residence and was

jailed for seven days. Notice of Charges, 4/29/16; Memorandum of Credit for

Time Served, 12/12/18. Following a hearing on that charge, Appellant’s home

plan was modified and he was ordered to attend family counseling, but no

revocation of Appellant’s parole or probation was issued. Gagnon3 Order,

5/6/16.

        On June 2, 2016, Appellant was charged with technical violations of his

probation, failure to report to his supervising officer and violation of curfew,



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2   35 P.S. § 780-113(a)(30).
3   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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which occurred on May 27, 2016, after he had fully served the incarceration

portion of his sentence. Notice of Charges, 6/2/16. Appellant was jailed on

these charges for 52 days. Memorandum of Credit for Time Served, 12/12/18.

Following the results of toxicology tests, the trial court on July 22, 2016

revoked Appellant’s probation and re-sentenced him to five years of drug and

alcohol restrictive intermediate punishment, including inpatient drug and

alcohol rehabilitation, followed by commitment to a halfway house, outpatient

treatment, and three months of house arrest with electronic monitoring.

Gagnon Order, 7/22/16; Release Order, 7/22/16. Appellant served 194 days

in rehabilitation and 90 days of house arrest under this sentence.

Memorandum of Credit for Time Served, 12/12/18.

      On May 15, 2017, Appellant was charged with a technical violation of

his drug and alcohol restrictive intermediate punishment, consisting of illegal

drug use. Notice of Charges, 5/15/17. Appellant was jailed on these charges

for 14 days. Memorandum of Credit for Time Served, 12/12/18. On May 25,

2017, the trial court revoked the drug and alcohol restrictive intermediate

punishment imposed in 2016 and re-sentenced Appellant to a new sentence

of five years of drug and alcohol restrictive intermediate punishment with

additional drug court terms and conditions. Gagnon Order, 5/25/17. Under

this sentence, Appellant served 18 days in rehabilitation and 118 days of

house arrest and was incarcerated for several periods between May 25, 2017




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and June 28, 2018 for a total of 42 days. Memorandum of Credit for Time

Served, 12/12/18.

      Appellant was ordered detained on June 28, 2018, for violating the

conditions of his drug court drug and alcohol restrictive intermediate

punishment sentence as a result of his testing positive for methamphetamine,

and was removed from the Drug Court program on July 6, 2018. Detainer

Order, 6/28/18; Order, 7/6/18; Notice of Charges, 7/6/18.              Appellant

remained jailed until a Gagnon II hearing was held on August 30, 2018.

Gagnon Order, 7/18/18; Memorandum of Credit for Time Served, 12/12/18.

      At the August 30, 2018 hearing, the trial court found that Appellant had

been convicted of a new crime, the summary offense of criminal mischief, and

had violated the conditions of his drug court drug and alcohol restrictive

intermediate punishment sentence.      N.T. at 3, 5.    The trial court revoked

Appellant’s drug court drug and alcohol restrictive intermediate punishment

and re-sentenced Appellant to the statutory maximum sentence for his

delivery of a controlled substance conviction, 71/2 to 15 years of incarceration,

with credit for time served.     Gagnon Order, 8/30/18; N.T. at 5-6.          On

September 10, 2018, counsel timely filed a motion for reconsideration of

sentence, which the trial court denied on September 11, 2018.




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       On September 27, 2018, counsel timely filed the instant direct appeal

from the August 30, 2018 judgment of sentence.4 On March 8, 2019, counsel

filed an Anders brief and a petition to withdraw as counsel and sent copies of

these documents to Appellant.           In his Anders brief, counsel presents the

following issue:

       Whether the Trial Court committed an abuse of discretion when it
       revoked Appellant’s probation/parole and re-sentenced him to
       serve a sentence of not less than seven and a half (71/2) years nor
       more than fifteen (15) years in a state correctional institution
       given the circumstances of the case.

Anders Br. at 4. Appellant has not filed any pro se response to counsel’s

petition to withdraw or Anders brief. On March 11, 2019, the Commonwealth

advised the Court that it had elected not to file a brief.

       Before this Court can consider the merits of this appeal, we must first

determine whether counsel has satisfied all of the requirements that court-

appointed counsel must meet before leave to withdraw may be granted.

Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en

banc); Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2017);

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc).

       To withdraw from representing a criminal defendant on direct appeal on

the basis that the appeal is frivolous, counsel must (1) petition the court for


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4Appellant filed his statement of errors complained of on appeal on October
31, 2018. The trial court entered its opinion on November 2, 2018.

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leave to withdraw stating that he has made a conscientious examination of

the record and has determined that the appeal is frivolous; (2) file a sufficient

Anders brief; and (3) provide a copy of the Anders brief to the defendant

and advise the defendant of his right to retain new counsel or proceed pro se

and to raise any additional points that he deems worthy of the court’s

attention.    Dempster, 187 A.3d at 270; Commonwealth v. Bynum-

Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016); Commonwealth v.

Zeigler, 112 A.3d 656, 659-60 (Pa. Super. 2015). An Anders brief must

comply with the all of the following requirements:

       [T]he Anders brief … 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); see also

Dempster, 187 A.3d at 270; Tejada, 176 A.3d at 359; Zeigler, 112 A.3d at

660.

       If counsel has satisfied the above requirements, it is then this Court’s

duty to conduct its own review of the trial court’s proceedings and render an

independent judgment as to whether the appeal is wholly frivolous.

Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa. Super. 2018) (en

banc); Dempster, 187 A.3d at 271; Zeigler, 112 A.3d at 660. If the Court

in its independent review concludes that the issues raised in counsel’s Anders

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brief have not been shown to be wholly frivolous or that counsel has

overlooked an issue that may have arguable merit, the petition to withdraw

must be denied, and counsel must be directed to file either an advocate’s brief

on the merits or a new Anders brief that, at a minimum, addresses those

non-frivolous or potentially non-frivolous issues. Tejada, 176 A.3d at 359-

62; Zeigler, 112 A.3d at 662-63; Commonwealth v. Orellana, 86 A.3d 877,

882-83 (Pa. Super. 2014).

      Counsel states in his petition to withdraw that he has reviewed the entire

record and determined that there are no non-frivolous grounds for the appeal.

Counsel’s March 8, 2019 letter to Appellant provided a copy of the Anders

brief to Appellant and advised him of his right either to retain new counsel or

to proceed pro se on appeal to raise any points he deems worthy of the court’s

attention. Counsel in his brief provides procedural and factual summaries of

the case with references to the record and cites and discusses law applicable

to the issue he has identified. Counsel also explains the argument that he has

raised, that imposition of the maximum 15-year sentence is manifestly

excessive and unreasonable where Appellant’s violations of probation and

intermediate punishment have been primarily technical violations and the new

conviction was a summary offense. Counsel has therefore complied with all

of the technical requirements for petitioning to withdraw.

      Accordingly, we proceed to conduct an independent review of the record

to ascertain whether the appeal is indeed wholly frivolous. This Court first


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considers the issues raised by counsel in the Anders brief and determines

whether they are in fact frivolous. Dempster, 187 A.3d at 272. We conclude

that the issue raised by counsel has not been shown to be wholly frivolous.

       A claim that a sentence following the revocation of probation or another

non-incarceration sentence is manifestly excessive and unreasonable presents

a substantial question that this Court may review on appeal. Commonwealth

v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016).5 While a sentencing court

has broad discretion in choosing the length of confinement, an argument that

a sentence at the extreme reaches of the trial court’s sentencing power is

excessive can present a non-frivolous issue. Commonwealth v. Edwards,

906 A.2d 1225, 1230-32 (Pa. Super. 2006).

       It does not appear from counsel’s Anders brief or on the face of the

record that the statutory maximum sentence imposed here cannot possibly be

considered manifestly excessive and unreasonable.       The trial court at the

hearing and in its opinion did not state that it considered 15 years of

incarceration appropriate to Appellant’s violations of his intermediate

punishment. It also did not find that Appellant’s violations involved violent or

dangerous conduct or the same criminal conduct, drug dealing, for which he


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5 While an appellant challenging the discretionary aspects of sentence is also
required to satisfy other requirements, including filing a timely post-sentence
motion and complying with Pa.R.A.P. 2119(f), see, e.g., Dempster, 187 A.3d
at 272; Derry, 150 A.3d at 991, all of those other requirements were satisfied
here.


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was originally sentenced.     Rather, the trial court’s sole explanation for

selecting the statutory maximum sentence, rather than a shorter maximum

sentence of incarceration, was that anything short of a 15-year sentence

would not provide a meaningful minimum period of incarceration and would

result in Appellant’s near immediate release on parole because of the credit

that Appellant would receive for time served. N.T. at 5-6; Trial Court Opinion

at 2.

        That reasoning does not appear to be an accurate statement of the law.

Credit against the new sentence for time served on prior sentences for the

same conviction is required where the statutory maximum sentence is

imposed to prevent the imposition of an illegal sentence. Commonwealth v.

Williams, 662 A.2d 658, 659 (Pa. Super. 1995).          Credit against a new

sentence imposed after revocation of probation or intermediate punishment is

not required, however, where the new sentence and all prior sentences that

the defendant has already served for the same conviction added together total

less than the statutory maximum.      Commonwealth v. Crump, 995 A.2d

1280, 1284 (Pa. Super. 2010). The trial court therefore was not required to

impose a 71/2-to-15 year sentence to achieve its stated objective of a

meaningful minimum period of incarceration.

        An argument is not wholly frivolous simply because counsel views the

argument as weak and unlikely to prevail.        Orellana, 86 A.3d at 882;

Edwards, 906 A.2d at 1231; Commonwealth v. Kearns, 896 A.2d 640, 647


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(Pa. Super. 2006).    Rather, an argument is wholly frivolous only if it is

foreclosed under controlling law. Orellana, 86 A.3d at 882; Edwards, 906

A.2d at 1231; Kearns, 896 A.2d at 647.

     Our system of appellate review is based upon the notion that an
     adversarial process will best advance the interests of the parties
     and the development of the law. In this process, each side is
     expected to make its best argument(s) and the appellate court
     decides which argument is of greater merit. It appears that unless
     a position is without question defeated by existing caselaw, an
     appointed counsel should advance the best argument he/she is
     capable of constructing and allow the appellate court to make the
     ultimate determination that the argument lacks merit. It may be
     that counsel believes that the argument advanced is unlikely to
     ultimately prevail. Nevertheless, this does not mean that the
     appeal is wholly frivolous.

Edwards, 906 A.2d at 1231 (quoting Kearns).

     Given the length of the sentence and the trial court’s apparently

inaccurate assumption that no shorter sentence could provide the meaningful

minimum period of incarceration that it sought to impose, Counsel should

evaluate whether the issue that he raised concerning excessiveness of

Appellant’s sentence is wholly frivolous under the above standard and address

that issue in an advocate’s brief or new Anders brief.

     For the above reasons, we deny counsel’s petition to withdraw and order

counsel to file an advocate’s brief or new Anders brief within 30 days of the

date of this memorandum. In addition to the above issue, counsel may raise




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any other non-frivolous issues that he has identified.     The Commonwealth

shall have 30 days from that filing to respond.6

       Petition to withdraw denied. Anders brief stricken. Appellant’s counsel

ordered to file an advocate’s brief or a new Anders brief within 30 days of the

date of this memorandum. The Commonwealth may file a brief within 30 days

of Appellant’s counsel’s brief. Panel jurisdiction retained.




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6 If the Commonwealth chooses to not file a brief in response, the Court
requests that the Commonwealth promptly send a letter to the Prothonotary
advising the Court that no brief will be filed.

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