J-S06028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

QUINTON BRIGHT

                            Appellant                  No. 484 EDA 2014


           Appeal from the Judgment of Sentence December 17, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006516-2009
                            CP-51-CR-0012649-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED FEBRUARY 02, 2015

        Quinton Bright appeals from his judgment of sentence imposed in the

Court of Common Pleas of Philadelphia County on December 17, 2013, after

the court found him to be in violation of his probation.          Counsel has

petitioned this Court to withdraw his representation of Bright pursuant to

Anders, McClendon and Santiago.1               Upon review, we affirm Bright’s

judgment of sentence and grant counsel’s petition to withdraw.




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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       In order to withdraw pursuant to Anders and McClendon, counsel

must: 1) petition the Court for leave to withdraw, certifying that after a

thorough review of the record, counsel has concluded the issues to be raised

are wholly frivolous; 2) file a brief referring to anything in the record that

might arguably support an appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points that the appellant deems worthy of

review.      Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.

2001).    In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court held that, in order to withdraw under Anders,

counsel must also state his reasons for concluding his client’s appeal is

frivolous.

       Instantly, counsel’s petition states that he has made an examination of

the record and concluded the appeal is wholly frivolous. Counsel indicates

that he supplied Bright with a copy of the brief and a letter explaining his

right to proceed pro se,2 or with newly-retained counsel, and to raise any

other issues he believes might have merit.       Counsel has also submitted a

brief, setting out in neutral form three issues of arguable merit and,

pursuant to the dictates of Santiago, explains why he believes the issues to


____________________________________________


2
  Bright has not submitted any additional or supplemental filings to this
Court.



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be frivolous. Thus, counsel has substantially complied with the requirements

for withdrawal.

        Counsel having satisfied the above requirements, this Court must

conduct its own review of the proceedings and render an independent

judgment      as   to   whether     the   appeal   is,   in   fact,   wholly   frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

        Bright raises the following issues for our review:

        1. Did the lower court err in finding that [Bright] violated his
           parole and probation, thereby justifying the imposition of a
           new sentence of incarceration?

        2. Was [Bright’s] sentence legal?

        3. Did the lower court err in not acting upon [Bright’s] post-
           sentence motions?

Anders Brief, at 3.

        Bright first alleges that the trial court erred in finding that he violated

his probation. This claim is meritless. On November 5, 2009, Bright pled

guilty to multiple counts relating to the manufacture and delivery of

controlled substances.        The Honorable Rayford Means sentenced him to

concurrent terms of 6 to 23 months’ incarceration,3 followed by one year of

probation. While under Judge Means’ supervision, on June 14, 2013, Bright

was found guilty of persons not to possess firearms, theft by unlawful taking

and firearms not to be carried without a license, charges stemming from an

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3
    Bright was granted immediate parole on both cases.



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incident that occurred on August 26, 2010. The Honorable Linda Carpenter

sentenced him to an aggregate term of 10 to 24 years’ incarceration for

these charges.

      Conviction of a new crime is a sufficient basis for a court to revoke a

sentence of probation.    Commonwealth v. Kalichak, 943 A.2d 285, 289

(Pa. Super. 2008).     Thus, by virtue of his conviction on the new charges

before Judge Carpenter, Bright was in direct violation of his probation.

Additionally, Bright committed technical violations of his probation involving

drugs. See N.T. Violation Hearing, 12/17/13, at 3-4. Accordingly, the trial

court did not err in finding Bright to be in violation of his probation.

      Bright next claims that his revocation sentence was illegal. This claim

is without merit.   Pursuant to 42 Pa.C.S.A. § 9771(b), when a revocation

occurs, the court has all the sentencing alternatives that were available at

the time of initial sentencing. Commonwealth v. Mazzetti, 44 A.3d 58, 65

(Pa. 2012).      Upon resentencing, a term of total confinement may be

imposed if one of the following conditions exists:       (1) the defendant has

been convicted of another crime; (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.A. § 9771(c).

      Here, Bright was convicted of additional crimes and, thus, was eligible

for a term of total confinement under section 9771(c). Additionally, Bright

pled guilty to one charge of possession with intent to deliver (“PWID”) –

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cocaine, and one charge of PWID – marijuana and cocaine. The statutory

maximum penalty for PWID – cocaine is ten years’ imprisonment. 35 P.S. §

780-113(f)(1.1).     Judge   Means    resentenced    him    to   4   to   8   years’

incarceration on each count.     Thus, Bright’s revocation sentence was well

within the statutory limit. As such, this claim is meritless.

      Finally, Bright claims that the trial court erred by not acting upon his

post-sentence motions, in which he attempted to challenge the discretionary

aspects of his sentence. Counsel e-filed post-sentence motions in each of

Bright’s cases. However, incorrect documents – post-sentence motions from

Bright’s case before Judge Carpenter – were erroneously submitted to the

court, and the court did not consider them.                Accordingly, Bright’s

discretionary-aspect-of-sentencing claim was not preserved on appeal.

Because he did not properly preserve this claim, it is waived and, therefore,

frivolous.   See Commonwealth v. Kalichak, 943 A.2d 285, 292 (Pa.

Super. 2008) (where issue has been waived, pursuing matter on direct

appeal is frivolous in context of Anders).

      Even if Bright’s sentencing claim had not been waived, it would have

garnered him no relief.    In order to obtain review of a claim implicating the

discretionary aspects of sentencing, an appellant must raise a substantial

question as to whether the trial judge, in imposing sentence, violated a

specific provision of the Sentencing Code or contravened a “fundamental

norm” of the sentencing process. Commonwealth v. Coulverson, 34 A.3d

135, 142 (Pa. Super. 2011).       Here, Bright does not allege a violation of a

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specific provision of the Sentencing Code, nor does he claim the court

contravened a fundamental norm of the sentencing process.           Rather, the

sole basis for Bright’s claim is that he is remorseful for his crimes and seeks

the court’s mercy.       This does not raise a substantial question. 4   See id.

Accordingly, Bright’s claim is meritless.

       Judgment of sentence affirmed; petition to withdraw granted.

       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




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4
  Even if we were to interpret Bright’s claim as alleging the sentencing
court’s failure to consider mitigating circumstances, he would still be entitled
to no relief. Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super.
2006) (“A claim that a sentencing court failed to consider certain mitigating
factors does not raise a substantial question that the sentence is
inappropriate.”).



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