J-S22036-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                     Appellee               :
                                            :
                     v.                     :
                                            :
SAUNDRA LEE DINGER,                         :
                                            :
                      Appellant             :   No. 1784 WDA 2014

    Appeal from the Judgment of Sentence Entered September 22, 2014,
             in the Court of Common Pleas of Jefferson County,
         Criminal Division, at No(s): CP-33-CR-0000445-2011 and
                          CP-33-CR-0000605-2012

BEFORE:     PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:             FILED JANUARY 05, 2016

     Saundra Lee Dinger (Appellant) appeals from a judgment of sentence

entered after the trial court revoked her probation. In addition, Appellant’s

counsel has filed a petition to withdraw and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).      We grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.1

     At   trial   court   docket   number   CP-33-CR-0000445-2011    (Docket

Number 445), Appellant faced 23 counts of criminal misconduct. At counts

2-5, Appellant was charged with disorderly conduct, all of which were graded

as third degree misdemeanors and carried a maximum sentence of one year

1
  Counsel twice previously petitioned to withdraw, and this Court denied
those petitions and remanded the matter due to counsel’s failure to comply
with Anders/Santiago.

*Retired Senior Judge assigned to the Superior Court.
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in prison. 18 Pa.C.S. § 1104(3). Appellant pled guilty to counts 2-5; the

Commonwealth nolle prossed the remaining counts.

     At   trial   court   docket   number   CP-33-CR-0000605-2012    (Docket

Number 605), Appellant faced three counts of criminal misconduct, including

one count of retail theft.         The retail theft count was graded as a

misdemeanor of the second degree and carried a maximum sentence of

sentence of two years in prison. 18 Pa.C.S. § 1104(2). Appellant pled guilty

to retail theft, and the Commonwealth nolle prossed the remaining counts.2

     On January 2, 2013, Appellant was sentenced at both docket numbers.

As to Docket Number 445, Appellant received one year of probation for each

court of disorderly conduct. The court ran count 5 concurrently with count

3, count 4 concurrently with count 2, and count 3 consecutively with count

2. As to Docket number 605, the court sentenced Appellant to two years of

probation; the court ran this sentence concurrently with the sentence at

Docket Number 445. Thus, Appellant received an aggregate sentence of two

years of probation.

     On February 13, 2013, a bench warrant was issued because the

Jefferson County Adult Probation Department (Probation Department)



2
 Prior to entering her guilty pleas, Appellant’s counsel filed a motion for a
hearing to determine whether Appellant was competent to stand trial.
Counsel also filed a motion to have Appellant undergo psychological testing.
The trial court granted the motions. On December 19, 2012, the court
entered an order finding Appellant competent to stand trial.


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informed the court that Appellant had violated several of her probation

conditions. The court later withdrew the bench warrant.

        On January 29, 2014, the court held a Gagnon I hearing.3,   4
                                                                        At that

hearing, the Probation Department alleged that Appellant violated the terms

of her probation by, inter alia, refusing to take her medications.         The

following day, the court entered an order stating that Appellant would have a

hearing that day to determine whether she should receive inpatient

treatment at Warren State Hospital. As best we can discern from the record,

Appellant was admitted into Warren State Hospital.

        On August 25, 2014, the trial court placed a detainer on Appellant,

stating that the Probation Department informed the court that Appellant

again had violated the conditions of her probation. The court conducted a

Gagnon I hearing on August 27, 2014, where the Probation Department

alleged that Appellant had violated her probation by, inter alia, refusing to

take her medications. Appellant admitted to not taking her medications but

expressed her belief that medication issues were between her and her

doctor.    The court issued an order noting that Appellant admitted to the

violations charged. The order further directed that Appellant shall remain in


3
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4
  “[T]he Gagnon I hearing is similar to the preliminary hearing afforded all
offenders before a Common Pleas Court trial: the Commonwealth must
show probable cause that the violation was committed.” Commonwealth
v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (citation omitted).


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the Jefferson County Jail and that the Probation Department must conduct a

pre-sentence investigation report.

        The court held a Gagnon II hearing5 on September 22, 2014. At the

hearing, the Probation Department recommended that a hearing be held to

determine whether Appellant should undergo long-term mental health

treatment. Appellant insisted that she did not need medication and that she

would not cooperate with long-term inpatient treatment. The court took this

to mean that Appellant would violate her probation again; the court

concluded that it must vindicate its authority. The court, therefore, accepted

the     Probation   Department’s    secondary    recommendation     to   revoke

Appellant’s probation and sentence her to time in prison.




5
    As this Court has explained,

        [t]he Gagnon II hearing entails, or may entail, two decisions:
        first, a consideration of whether the facts determined warrant
        revocation. The first step in a Gagnon II revocation decision ...
        involves a wholly retrospective factual question: whether the
        parolee [or probationer] has in fact acted in violation of one or
        more conditions of his parole [or probation]. It is this fact that
        must be demonstrated by evidence containing probative value.
        Only if it is determined that the parolee [or probationer] did
        violate the conditions does the second question arise: should
        the parolee [or probationer] be recommitted to prison or should
        other steps be taken to protect society and improve chances of
        rehabilitation? Thus, the Gagnon II hearing is more complete
        than the Gagnon I hearing in affording the probationer
        additional due process safeguards[.]

Ferguson, 761 A.2d at 617 (citations and quotation marks omitted).


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       As to Docket Number 445, the court sentenced Appellant to six to

twelve months in prison on counts 4, 5, and 6.         The court directed these

sentences to be served consecutively. Regarding Docket Number 605, the

court sentenced Appellant to one to two years in prison and directed that

this sentence shall be served consecutively to the sentence imposed on

Docket Number 445.       Thus, Appellant received an aggregate sentence of

two-and-one-half to five years in prison.

       Two days later, the court entered a corrected order.          The court

observed that counts 3 and 5 were the only active counts on Docket Number

445.   In other words, the court could not impose a sentence on count 4.

Thus, the court eliminated the sentence on count 4, lowering Appellant’s

aggregate sentence to two to four years in prison.          Oddly, neither the

Anders counsel’s filings nor the trial court’s opinion acknowledges this

corrected order.

       Appellant timely filed a post-sentence motion, which the trial court

denied.   Appellant timely filed a notice of appeal.    Appellant and the trial

court complied with Pa.R.A.P. 1925(b).      Counsel subsequently filed in this

Court an Anders brief and a petition to withdraw.

       The following principles guide our review of this matter.

       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




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      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.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

      Our Supreme Court has clarified portions of the Anders procedure:

      Accordingly, we hold that in the Anders brief that accompanies
      court-appointed counsel’s petition to withdraw, counsel 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.

      Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the




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above requirements.6      Once “counsel has met these 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.’” Commonwealth v. Flowers, 113

A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n.

5).

        Counsel presents one issue that arguably supports this appeal.

Specifically, counsel raises a challenge to the discretionary aspects of

Appellant’s sentence. It is within this Court’s scope of review to consider

challenges to the discretionary aspects of an appellant’s sentence in an

appeal following a revocation of probation. Commonwealth v. Ferguson,

893 A.2d 735, 737 (Pa. Super. 2006).

        An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test.

        We conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
        and 903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify sentence,
        see Pa.R.Crim.P. 720; (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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation

omitted).

6
    Appellant has not responded to counsel’s petition to withdraw.



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      Appellant timely filed a notice of appeal. Appellant did not object to

her sentence during the sentencing hearing.       However, she did include a

request to reconsider her sentence in her post-sentence motion.        Therein,

Appellant claimed that her sentence was excessive in light of the lack of

severity of her violation and that the trial court failed to state adequately on

the record its reasons for the sentence imposed. Thus, Appellant preserved

only these issues for appellate review.

      The Anders brief contains a 2119(f) statement, albeit an arguably

inadequate statement.     Anders Brief at 4.    However, because Appellant’s

counsel believes this appeal is frivolous, an inadequate 2119(f) statement is

not an impediment to further review. See Commonwealth v. Zeigler, 112

A.3d 656, 661 (Pa. Super. 2015) (“Where counsel files an Anders brief, this

Court has reviewed the matter even absent a separate Pa.R.A.P. 2119(f)

statement.    Hence, we do not consider counsel’s failure to submit a Rule

2119(f) statement as precluding review of whether Appellant’s issue is

frivolous.”) (citations omitted).

      We now consider whether Appellant has presented a substantial

question for our review. The determination of what constitutes a substantial

question must be evaluated on a case-by-case basis. Commonwealth v.

Paul, 925 A.2d 825, 828 (Pa. Super. 2007). “A substantial question exists

only when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the



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Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Griffin, 65 A.3d at 935 (citation and quotation

marks omitted).

     We conclude that Appellant has raised a substantial question.        See

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006)

(“[A] claim that a particular probation revocation sentence is excessive in

light of its underlying technical violations can present a question that we

should review.”).   We, therefore, will examine the merits of Appellant’s

sentencing issue.

     [Our] standard of review is clear: sentencing is vested in the
     discretion of the trial court, and will not be disturbed absent a
     manifest abuse of that discretion.        An abuse of discretion
     involves a sentence which was manifestly unreasonable, or
     which resulted from partiality, prejudice, bias or ill will. It is
     more than just an error in judgment.

           We note that a sentencing court must state on the record
     its reasons for imposing sentence. Nevertheless, a lengthy
     discourse on the trial court’s sentencing philosophy is not
     required. Rather, the record as a whole must reflect the court’s
     reasons and its meaningful consideration of the facts of the
     crime and the character of the offender.

           In the particular context of a sentence imposed for a
     probation violation, we also keep in mind that a term of total
     confinement is available if any of the following conditions exist:
     (1) the defendant is convicted of another crime; or (2) his
     conduct indicates that it is likely that he will commit another
     offense; or (3) such a sentence is essential to vindicate the
     court’s authority.

Id. at 1252-53 (citations and quotation marks omitted).




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      As an initial matter, the record clearly establishes that the trial court

was permitted to sentence Appellant to total confinement. At the Gagnon

II hearing, Appellant stated in no uncertain terms that she would not comply

with the terms of her probation. As such, the court vindicated its authority

by sentencing Appellant to total confinement.

      The trial court’s opinion addressed Appellant’s sentencing claim as

follows.

              As the transcript reflects, it was the [c]ourt’s intention to
      facilitate long-term mental health treatment for [Appellant].
      Bluntly and without hesitation, however, she stated that she
      would not comply with such a regimen. She thereby informed
      the [c]ourt that she fully intended to violate again if it ordered
      the treatment it believed she needed. Giving her a chance to
      change her mind, however, the [c]ourt explained that it could
      otherwise order total confinement and reminded her that she
      was already in the county jail because of her refusal to comply
      with outpatient treatment and housing requirements. It then
      queried, “After about a month and a half or so in the county jail,
      you’re telling me you’re not going to comply with the
      treatment[?]” When [Appellant] confirmed that intention - again
      without hesitation - the [c]ourt, in order to vindicate its
      authority, sentenced her to an aggregate term of 2½ - 5 years’
      imprisonment.

            Rarely does a defendant so blatantly express his or her
      intention to defy the [c]ourt’s order, and whether or not
      [Appellant’s] obstinance was occasioned to any degree by her
      mental illness, that she refused to comply with a long-term
      mental health treatment program meant not only that she would
      not obey the [c]ourt’s direct order, but that she would not
      successfully reintegrate into society as a law-abiding citizen.

            As the record reflects, therefore, the [c]ourt did indeed
      provide adequate reasons for its sentence[.]

Trial Court Opinion, 11/3/2014, at 1-2 (citations omitted).


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        The trial court’s observations are supported by the record.    After a

review of the record, although sitting as a sentencing court, we might have

vindicated the court’s authority with a lesser sentence, we cannot conclude

that Appellant’s sentence of two to four years in prison is manifestly

unreasonable or that the sentence resulted from partiality, prejudice, bias,

or ill will.   Consequently, the sentence does not constitute an abuse of

discretion.

        Based on the foregoing, we agree with counsel that Appellant’s

challenge to the discretionary aspects of her sentence is frivolous.

Moreover, we have conducted “a full examination of the proceedings” and

conclude that “the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at

1248.     Thus, we affirm the judgment of sentence and grant counsel’s

petition to withdraw.

        Judgment of sentence affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




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Date: 1/5/2016




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