J-S33021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

THOMAS J. SCHRAM

                         Appellant                   No. 1267 WDA 2015


            Appeal from the Judgment of Sentence July 15, 2015
             In the Court of Common Pleas of Jefferson County
            Criminal Division at No(s): CP-33-CR-0000045-2013
                          CP-33-CR-0000046-2013
                          CP-33-CR-0000047-2013


BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 25, 2016

      Appellant, Thomas J. Schram, appeals from the judgment of sentence

entered on July 15, 2015, following revocation of his probationary sentences

for technical violations. In addition, Appellant’s court-appointed counsel filed

both a petition to withdraw as counsel and an accompanying brief pursuant

to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant’s counsel

complied with the procedural requirements necessary for withdrawal.

Moreover, after independently reviewing the record, we conclude that the

instant appeal is wholly frivolous. We therefore grant counsel’s petition to

withdraw and affirm Appellant’s judgment of sentence.




*Former Justice specially assigned to the Superior Court.
J-S33021-16



       We summarize the factual and procedural history of this case as

follows. On April 17, 2013, Appellant entered guilty pleas to three counts of

issuing   bad    checks,    18    Pa.C.S.A.    § 4105(a)(1),    at   docket    numbers

CP-33-CR-45-2013, CP-33-CR-46-2013, and CP-33-CR-47-2013.                          Each

offense constituted a misdemeanor of the second degree.               Thereafter, the

trial court sentenced Appellant to two years’ probation at each count and

ordered that all sentences should run concurrently.

       While serving his sentences, Appellant violated the terms of his

probation on four separate occasions. Appellant twice committed technical

violations by using drugs and was re-sentenced on January 7, 2015 and April

15, 2015. On May 20, 2015, after Appellant admitted to a third technical

violation stemming from his use of heroin, the trial court modified his

probationary      sentence       at   CP-33-CR-45-2013     to    include      30   days’

incarceration in the Jefferson County jail.         Appellant’s other sentences at

CP-33-CR-46-2013 and CP-33-CR-47-2013 remained unaltered. On July 15,

2015, following a fourth admission to the ingestion of heroin in violation of

his probationary terms, the trial court revoked Appellant’s probation at all

three dockets and re-sentenced him to an aggregate term of 32 to 72

months in state prison.1
____________________________________________


1
    At CP-33-CR-45-2013, the trial court sentenced Appellant to one to two
years in state prison, with credit for time served. At CP-33-CR-46-2013, the
trial court sentenced Appellant to one to two years in state prison, with
credit for time served, consecutive to the punishment ordered at
(Footnote Continued Next Page)


                                           -2-
J-S33021-16



        On August 4, 2015, Appellant filed a motion to reconsider his sentence

nunc pro tunc, claiming that the trial court abused its discretion by imposing

too severe a punishment. The trial court denied relief on August 5, 2015.

On August 10, 2015, Appellant filed a timely notice of appeal. Thereafter, in

response to an order of court, Appellant filed a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) and the trial court

issued its Rule 1925(a) opinion on September 29, 2015.                   See Trial Court

Opinion, 9/29/15.

        On appeal, Appellant’s counsel included one issue in his Anders brief:

        Whether the trial court abused its discretion when it revoked
        Appellant’s probation and re-sentenced him to serve a sentence
        of incarnation in the [s]tate [c]orrectional [i]nstitution
        aggregating to a minimum of two (2) years eight (8) months to
        a maximum of six (6) years with credit for time served and a
        recommendation of Motivational Boot Camp at all three dockets
        for [A]ppellant’s violations of probation/parole[?]

Anders Brief at 3.

        Before reviewing the merits of this appeal, however, this Court must

first   determine       whether    counsel       fulfilled   the   necessary   procedural

requirements      for     withdrawing       as     counsel.        Commonwealth        v.

Washington, 63 A.3d 797, 800 (Pa. Super. 2013).                      To withdraw under
                       _______________________
(Footnote Continued)

CP-33-CR-45-2013. At CP-33-CR-47-2013, the court sentenced Appellant to
serve eight months to two years in state prison, with credit for time served,
consecutive to the punishment imposed at CP-33-CR-46-2013. The court
recommended Appellant for Motivational Boot Camp at all three dockets and
declared Appellant’s eligibility for the Recidivist Risk Reduction Incentive
Program at 24 months.



                                            -3-
J-S33021-16


Anders,     court-appointed   counsel     must   satisfy    certain   technical

requirements. First, counsel must “petition the court for leave to withdraw

and state that after making a conscientious examination of the record, he

has determined that the appeal is frivolous.”              Commonwealth v.

Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an

Anders brief, in which counsel:

     (1) provide[s] a summary of the procedural history and facts,
     with citations to the record;

     (2) refer[s] to anything in the record that counsel believes
     arguably supports the appeal;

     (3) set[s] forth counsel’s conclusion that the appeal is frivolous;
     and

     (4) state[s] 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.

Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.

     Finally, counsel must furnish a copy of the Anders brief to his client

and “advise[] him of his right to retain new counsel, proceed pro se or raise

any additional points that he deems worthy of the court’s attention, and

attach[] to the Anders petition a copy of the letter sent to the client.”

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation

omitted).




                                    -4-
J-S33021-16


       If counsel meets all of the above 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 (citation

omitted). It is only when both the procedural and substantive requirements

are satisfied that counsel will be permitted to withdraw. In the case at bar,

counsel has met all of the above procedural obligations.2 We now turn to

the issue raised in the Anders brief.

       The Anders brief contends that the trial court abused its discretion in

imposing too severe a punishment under the circumstances of the case and

in view of the nature of Appellant’s probation violations. Anders Brief at 6.

This claim does not challenge the revocation of Appellant’s probation or the

fact that the trial court imposed a sentence of total confinement upon

Appellant. Rather, Appellant’s claim challenges the discretionary aspects of

his sentence. Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super.

2010), appeal denied, 25 A.3d 328 (Pa. 2011).

       “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion.” Commonwealth v. Clarke, 70 A.3d 1281,

1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an
____________________________________________


2
    Appellant has not filed a response to counsel’s petition to withdraw.




                                           -5-
J-S33021-16


automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).     Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

     As this Court has explained:

     To reach the merits of a discretionary sentencing issue, we
     conduct a four-part analysis to determine:           (1) whether
     appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
     (2) whether the issue was properly preserved at sentencing or in
     a motion to reconsider and modify sentence, Pa.R.Crim.P. [708];
     (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also

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

a court revokes probation and imposes a new sentence, a criminal defendant

needs to preserve challenges to the discretionary aspects of that sentence

either by objecting during the revocation sentencing or by filing a

post-sentence motion”). As previously noted, Appellant filed a timely notice

of appeal and his claim was properly preserved in a post-sentence motion.

Counsel’s Anders brief also contains a statement pursuant to Pa.R.A.P.

2119(f).    Thus, we turn to whether the appeal presents a substantial

question.

     As we have explained:

     The determination of whether a particular case raises a
     substantial question is to be evaluated on a case-by-case basis.
     Generally, however, in order to establish that there is a
     substantial question, the appellant must show actions by the
     sentencing court inconsistent with the Sentencing Code or

                                    -6-
J-S33021-16


      contrary to the fundamental norms underlying the sentencing
      process.

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted).

      Appellant’s position in his Rule 2119(f) statement is that “[his]

sentences are manifestly unreasonable in that they constitute too severe of

a punishment under the circumstances of the case and the probation/parole

violations, and the [trial c]ourt’s reasons for the sentences do not justify the

severity.” Anders Brief at 6. “[T]his Court has [] determined that such an

assertion, in combination with allegations that a sentencing court did not

consider the nature of the offenses or provide adequate reasons for its

sentence, presents a plausible argument that the length of the sentence

violates fundamental sentencing norms.” Commonwealth v. Dodge, 77

A.3d 1263, 1271-1272 (Pa. Super. 2013).

      In sentencing Appellant, the trial court was required to “consider the

general principles and standards of the Sentencing Code.” Commonwealth

v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses

these general principles in the following manner:

        the sentence imposed should call for confinement that is
        consistent with the protection of the public, the gravity of
        the offense as it relates to the impact on the life of the
        victim and on the community, and the rehabilitative needs
        of the defendant.




                                     -7-
J-S33021-16



42 Pa.C.S.A. § 9721(b).    In addition, 42 Pa.C.S.A. § 9771(c) permits the

trial court to impose a sentence of total confinement in order to vindicate its

authority. 42 Pa.C.S.A. § 9771(c).

      We also note that when the trial court has the benefit of a presentence

investigation (PSI) report, “we presume the court was aware of and weighed

information concerning Appellant’s character when making its sentencing

decision.”   Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super.

2010).

      Here, the trial court offered the following explanation for the sentence

imposed in this case:

      As he frankly acknowledged, [Appellant] was a drug addict who
      had been in front of the [trial c]ourt many times and did not
      know how to get the help he knew he needed. He had been
      given multiple breaks in the past, one of which was to serve his
      revocation sentence in the local jail rather than state prison. He
      did not respond to leniency, however, but repeatedly flouted the
      [trial c]ourt’s attempts to show mercy and directives to comply
      with the law and its orders. As a result, even [Appellant] was
      expecting a state sentence on July 15, 2015. All he asked was
      that the [trial c]ourt send him with a boot camp
      recommendation, which is what it did.

      [Appellant] complained, nonetheless, because he was hoping for
      a lower minimum. The [trial c]ourt explained exactly why it was
      imposing a higher minimum, however, and that was as an
      incentive for him to actually complete the boot camp program
      rather than decide he would rather serve his minimum in prison
      and get paroled sooner.

      What the record clearly conveys, then, is that the [trial c]ourt
      deliberately fashioned a sentence with [Appellant’s] particular
      needs and circumstances in mind. To that end, it was fully
      aware of his background and other information it needed to
      appropriately do so. [The trial court stated on the record that it

                                     -8-
J-S33021-16


      reviewed Appellant’s PSI report and considered Appellant’s age,
      his background, his prior record, and everything necessary for
      sentencing. The record] further reflects that the [trial c]ourt did
      indeed articulate its reasons for the sentence.

Trial Court Opinion, 9/29/15, at 1-2 (record citations omitted).

      Based upon the foregoing, we discern the trial court did not abuse its

discretion in imposing Appellant’s sentence. The trial court had the benefit

of a PSI report, so we presume the trial court was aware of Appellant’s

individual circumstances, including his rehabilitative needs.      Moury, 992

A.2d at 175. The trial court went further, however, and before imposing a

sentence of total confinement carefully considered the need to protect the

public, the gravity of Appellant’s conduct and its potential impact on the

community, and Appellant’s rehabilitative needs. Ultimately, the trial court

concluded that Appellant’s continued use of narcotics, despite supervision,

posed an ongoing risk of his continued involvement with criminal activity and

that a shorter state sentence would fail to ensure that Appellant received the

rehabilitative programming that he needs. The record firmly supports these

assessments.

      After an independent review of the entire record, we see nothing that

might arguably support this appeal.         The appeal is, therefore, wholly

frivolous. Accordingly, we affirm Appellant’s judgment of sentence and grant

counsel’s petition for leave to withdraw.

      Petition for leave to withdraw as counsel granted.           Judgment of

sentence affirmed.



                                     -9-
J-S33021-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2016




                          - 10 -
