J-S11003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

DAVID MICHAEL HASTINGS

                         Appellant                 No. 1405 MDA 2014


           Appeal from the Judgment of Sentence July 23, 2014
           In the Court of Common Pleas of Lackawanna County
            Criminal Division at No(s): CP-35-CR-0002877-2012


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                          FILED APRIL 07, 2015

      Appellant, David Micheal Hastings, appeals from the judgment of

sentence entered after his participation in the Lackawanna County Drug

Treatment Court Program (“the Program”) was terminated.        Additionally,

Hastings’s court appointed counsel, Donna M. DeVita, Esq., has filed an

application to withdraw as counsel pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). After careful review, we affirm Hastings’s judgment of sentence and

grant counsel’s petition to withdraw.

      In June 2013, Hastings pled guilty to unauthorized use of his sister’s

motor vehicle, and was admitted into the Program.       As part of his plea

agreement, Hastings signed an agreement to abide by the rules and
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regulations of the Program. Failure to abide by those rules would allow the

court to terminate his participation in the Program.

      In December 2013, the trial court issued a bench warrant for Hastings,

as he had missed scheduled appointments with his probation officer. It was

later discovered that Hastings had pled guilty to assault – intent to cause

physical injury, in Broome County, New York, on February 25, 2014.         A

hearing on these violations was held on July 23, 2014.       At the hearing,

Hastings admitted to technical violations, as well as the criminal charges in

New York.    The trial court then terminated Hastings’s participation in the

Program, and sentenced him to an aggravated range sentence of 12 to 24

months’ imprisonment.

      Hastings filed post-sentence motions asserting that the sentence was

harsh and excessive. The trial court denied these motions, and this timely

appeal followed.

      As noted, Hastings’s appointed counsel has requested to withdraw and

has submitted an Anders brief in support thereof contending that Hastings’s

appeal is frivolous. The Supreme Court of Pennsylvania has articulated the

procedure to be followed when court-appointed counsel seeks to withdraw

from representing an appellant on direct appeal:

      [I]n 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
      arguably believes supports the appeal; (3) set forth counsel’s
      conclusion that the appeal is frivolous; and (4) state counsel’s

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       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).

       We note that counsel has substantially complied with the technical

requirements of Anders as articulated in Santiago.1 Additionally, counsel

confirms that she sent a copy of the Anders brief to Hastings as well as a

letter explaining to Hastings that he has the right to proceed pro se or the

right to retain new counsel. A copy of the letter is appended to counsel’s

Anders brief, as required by this Court’s decision in Commonwealth v.

Millisock, 873 A.2d 748 (Pa. Super. 2005), in which we held that “to

facilitate appellate review, … counsel must attach as an exhibit to the

petition to withdraw filed with this Court a copy of the letter sent to

counsel’s client giving notice of the client’s rights.” Id. at 749 (emphasis in

original). Hastings has not filed a response to the petition.

       We will now proceed to examine the issues counsel has set forth in the

Anders brief.      Counsel identifies only three issues for our review, two of

which concern the discretionary aspects of the sentence imposed by the trial
____________________________________________


1
  Counsel failed to assert in her petition that she reviewed the record and
has found no meritorious issues. She has included such assertions in her
Anders brief and in her letter to Hastings. Furthermore, our independent
review of the record does not reveal any meritorious issues. Thus, we
conclude that the absence of this assertion from the petition is merely an
oversight by counsel, and not indicative of a failure to actually review the
record.



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court.     The remaining issue challenges the trial court’s termination of

Hastings’s participation in the Program.

         On appeal from a judgment of sentence following the revocation of

probation

         [o]ur review is limited to determining the validity of the
         probation revocation proceedings and the authority of the
         sentencing court to consider the same sentencing alternatives
         that it had at the time of the initial sentencing. 42 Pa.C.S.A. §
         9771(b).

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (citations

omitted). This scope of review encompasses a review of the discretionary

aspects of the sentence imposed after revocation. See Commonwealth v.

Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc).

         “Revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court's decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

discretion.”    Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super.

2008) (citation omitted).     A court may revoke an order of probation upon

proof of the violation of specified conditions of the probation.             See

Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005). “A probation

violation is established whenever it is shown that the conduct of the

probationer indicates the probation has proven to have been an ineffective

vehicle to accomplish rehabilitation and not sufficient to deter against future

antisocial conduct.” Id., at 791. Technical violations are sufficient to trigger



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revocation.   See Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.

2000).

      Hastings admitted to technical violations of the Programs conditions,

as well as the assault conviction in New York. See N.T., 7/23/14, at 2. Any

one of these violations was sufficient to permit revocation of his participation

in the Program. Thus, we concur with counsel’s assessment that this claim

is wholly frivolous.

      In his final two issues, Hastings contends that the sentence imposed

by the trial court was excessive and that the court erred in running the

sentence consecutive to his sentence on other charges.        As noted above,

these issues challenge the discretionary aspects of the sentence imposed.

See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa. Super.

2007).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.        See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274 (citation omitted). “First, an appellant must set forth in his brief a


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concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.” Id. (citation omitted).

      “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id. (citation omitted).   That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.”        Tirado,

870 A.2d at 365.    We examine an appellant’s Rule 2119(f) statement to

determine whether a substantial question exists. See id. “Our inquiry must

focus on the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted).

      In the present case, Hastings’s brief contains the requisite Rule

2119(f) statement. Hastings argues that the sentence imposed by the trial

court was excessive. It is well-settled that a generic claim that a sentence is

excessive does not raise a substantial question for our review.     See, e.g.,

Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013). Hastings

does not cite to any specific provision of the sentencing code that was

violated, but contends that the court improperly weighted the evidence

before it at sentencing. This is simply a bald allegation of excessiveness,

which does not raise a substantial question. See Commonwealth v.

Mouzon, 812 A.2d 617, 627 (Pa. 2002). Additionally, we observe that the


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trial court thoroughly identified the factors that led him to impose the

sentence at issue:    the leniency the sentencing courts had initially shown

and Hastings had abused, and Hastings’s inability to take responsibility for

his own actions. See N.T., 7/23/14, at 6-7. Thus, the sentence imposed by

the trial court does not constitute an abuse of discretion, and we agree with

counsel that this issue is wholly meritless.

      Finally, Hastings argues that running the sentence consecutive to an

existing sentence constituted an abuse of discretion.      “Pennsylvania law

affords the sentencing court discretion to impose its sentence concurrently

or consecutively to other sentences being imposed at the same time or to

sentences already imposed.” Commonwealth v. Austin, 66 A.3d 798, 808

(Pa. Super. 2013) (citations omitted). Challenges to this exercise of

discretion generally do not raise a substantial question. See id. A challenge

to consecutive sentences will only raise a substantial question in the most

extreme cases, such as those where aggregate sentence is unduly harsh,

considering nature of the crime and length of imprisonment. See id. That is

simply not the case here. Hastings’s final claim is without merit.

      As we conclude that Hastings’s issues on appeal are without merit, and

our independent review of the record reveals no possibly meritorious issues,

we grant counsel’s petition to withdraw and affirm the judgment of

sentence.




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      Judgment of sentence affirmed.        Petition to withdraw as counsel

granted. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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