J-S36029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 GABRIELLE VICTORIA AYALA                 :
                                          :
                     Appellant            :   No. 392 MDA 2019

      Appeal from the Judgment of Sentence Entered January 30, 2019
    In the Court of Common Pleas of Franklin County Criminal Division at
                      No(s): CP-28-CR-0000200-2016


BEFORE:       PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 24, 2019

      Appellant, Gabrielle Victoria Ayala, appeals from the judgment of

sentence entered on January 30, 2019, in the Franklin County Court of

Common Pleas following the revocation of her probation. Appellant’s counsel

has filed a petition to withdraw representation and a brief pursuant to Anders

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

A.2d 349 (Pa. 2009), which govern withdrawal from representation on direct

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

Following our review, we grant counsel’s petition to withdraw and affirm the

judgment of sentence.

      The trial court summarized the facts and procedural history of this case

as follows:

           On August 10, 2015, the Pennsylvania State Police charged
      [Appellant] with Retail Theft,1 graded as a felony of the third
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S36029-19


     degree. See Police Criminal Complaint. The Public Defender’s
     Office was appointed to represent [Appellant]. After a number of
     continuances, [Appellant] appeared with counsel before the
     issuing authority and waived her right to a preliminary hearing on
     February 2, 2016. See Waiver of Preliminary Hearing, February 2,
     2016.

           1   18 Pa.C.S. § 3929(a)(1).

            The Commonwealth filed an Information charging
     [Appellant] with Retail Theft (F3) on March 4, 2016.     See
     Information, March 4, 2016. [Appellant] entered a plea of not
     guilty in this court on March 9, 2016. Id.

           After a number of continuances of trial, the parties appeared
     before the court on August 11, 2016; at that time, [Appellant]
     entered into a negotiated plea agreement with the
     Commonwealth. See Order, August 11, 2016, and attached Plea
     Agreement. In exchange for [Appellant’s] plea of guilty to the
     charge as filed, the Commonwealth agreed to, inter alia, a pled-
     to sentence of not less than time-served to twelve (12) months in
     the county jail, followed by twelve (12) months of probation. Id.
     The court accepted [Appellant’s] plea and the agreement with the
     Commonwealth and immediately imposed the agreed-upon
     sentence. See Order of Court, August 11, 2016.

             On May 25, 2017, the court found2 [Appellant] in violation
     of . . . parole . . ., and recommitted her to the county jail to serve
     the balance of the sentence; the twelve-month probationary
     period was reinstated at the expiration of the parole sentence.
     See Order of Court, May 25, 2017. [Appellant] was paroled on
     October 6, 2017.
           2 [Appellant] waived her Gagon I & II hearings. See
           Order of Court, May 25, 2017.

            On December 4, 2018, the Adult Probation Department filed
     a Notification of Hearing for Violation of Probation, Parole,
     Intermediate Punishment, or Conditions of Suspended Sentence
     (Notification). The Probation Department alleged [Appellant] was
     in violation of the probation period of the sentence due to being
     charged with multiple counts of drug trafficking and related
     offenses in the State of Maryland, being charged with Retail Theft
     (F3) by the Chambersburg Police Department (Franklin County),
     failing to comply with special conditions of probation (drug &


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       alcohol treatment and community service), and failing to pay
       fines/costs/restitution. See Notification, ¶¶ 1–4.

              On January 23, 2019, [Appellant] appeared before the court
       in this matter and in three un-related charges of Retail Theft (F3)
       that had been filed3 against [Appellant]. See Transcript of
       Proceedings of Plea Colloquy, January 23, 2019. [Appellant]
       entered a negotiated plea agreement with the Commonwealth on
       the new offenses, and sentencing was deferred until January 30,
       2019, for consideration with this violation case. Id., p. 10.
              3 Docket Numbers CP-28-CR-0002216-2018, CP-28-
              CR-0002320-2018, and CP-28-CR-0002321-2018.

              On January 30, 2019, [Appellant] appeared before this court
       with counsel and knowingly and voluntarily waived her right to a
       Gagon II hearing.      See Order of Court, January 30, 2019.
       [Appellant] admitted to failing to live as a law abiding citizen (the
       aforementioned Retail Theft pleas), possessing a controlled
       substance and paraphernalia, and failed to make payments on
       fines/costs/restitution as directed; [Appellant] denied failing to
       comply with special conditions of the sentence. See Transcript of
       Proceedings of Re-sentencing Hearing, January 30, 2019, p. 4.
       The court accepted her waiver, her acknowledgement of being in
       violation of probation, and proceeded to resentencing.

             After hearing argument from counsel and [Appellant’s]
       statements, the [c]ourt imposed a sentence of not less than
       twenty-four (24) months to not more than eighty-four (84)
       months[1] in the state correctional system.4 [Appellant] filed a
       Post-Sentence Motion seeking modification of sentence on
       February 6, 2019.     The Court issued an order determining
       hearing/argument to be unnecessary and directed the
       Commonwealth to file a response by February 22, 2019. See
       Order, February 7, 2019. The Commonwealth timely complied.

              4  The sentences for the new offenses resulted from
              the plea agreement between the parties whereby
              those sentences would be state sentences and be
              consecutive to the sentence herein. See Transcript of
              Proceedings of Plea Colloquy, January 23, 2019, p. 5.

____________________________________________


1 The court granted “credit for time previously served.” Sentencing order,
1/30/19.

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            However, before this court decided the Post-Sentence
      Motion, [Appellant] filed a Notice of Appeal to the Superior Court.5
      See Notice of Appeal, March 1, 2019. That same day, the court
      directed [Appellant] to file a concise statement of matters
      complained of on appeal. See Order, March 1, 2019. [Appellant]
      timely complied on March 19, 2019. See Concise Statement of
      Matters Complained of on Appeal (Concise Statement), March 19,
      2019.
            5 Because the sentence in this case was imposed after
            revocation of probation, [Appellant’s] Post-Sentence
            Motion did not toll the thirty day period to perfect an
            appeal in the Superior Court. See Pa.R.Crim.P. 708.

Trial Court Opinion, 3/25/19, at 1–5.

      Before we address any question raised on appeal, we must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal.

The procedural mandates are that counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that he
      or she has the right to retain private counsel or raise additional
      arguments that the defendant deems worthy of the court’s
      attention.

Id. at 1032 (citation omitted).

      In addition, our Supreme Court, in Santiago, 978 A.2d 349, stated that

an Anders brief must:

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




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      (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.

      Counsel has complied with the requirements for withdrawal outlined in

Anders.     Specifically, counsel requested to withdraw based upon his

determination that the appeal is wholly frivolous.     Petition to Withdraw as

Counsel, 5/8/19, at ¶ 7. Additionally, counsel sent a letter to Appellant, and

he attached a copy of the letter to his motion. Counsel informed Appellant

that he has filed a motion to withdraw and an Anders brief, and he apprised

Appellant of his immediate right to proceed pro se or with private counsel, in

light of the motion to withdraw as counsel. Id. at Exhibit A. Thus, Appellant’s

appellate counsel satisfied the requirements of Anders.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide 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.


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Santiago, 978 A.2d at 361; Cartrette, 83 A.3d at 1032.

       Counsel’s brief is sufficiently compliant with Santiago. It sets forth the

history of this case, outlines pertinent case authority, and refers to an issue

of arguable merit.2       Anders Brief at 7–12.     Further, the brief advances

counsel’s conclusion that the appeal is frivolous and the reasons for counsel’s

conclusion. Id. at 13–14.         Accordingly, we proceed to examine the issue

counsel identified in the Anders brief, and then we conduct “a full examination

of all the proceedings, to decide whether the case is wholly frivolous.”

Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super. 2018) (en

banc).

       Counsel for Appellant has indicated that after review of the certified

record, there are no meritorious issues. Anders Brief at 8. However, counsel

set forth one possible issue on Appellant’s behalf:

       1. Did the trial court abuse its discretion when it sentenced
       [Appellant] on January 30, 2019 to a sentence of twenty-four (24)
       months to eighty-four (84) months in a State Correctional
       Institution in case no. 200-2016?



____________________________________________


2 While counsel did not attach a certificate of service to the brief or application
to withdraw as cousel, the letter to Appellant indicates that the brief and
withdrawal request were attached. Moreover, we have overlooked counsel’s
failure to cite to the record in his brief, but remind counsel of his duty to do
so. See Pa.R.A.P. 2117(a)(4) (Statement of the case shall contain, inter alia,
“an appropriate reference in each instance to the place in the record where
the evidence substantiating the fact relied on may be found.”); Santiago, 978
A.2d at 361 (emphasis added) (“in the Anders brief that accompanies . . .
counsel’s petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record.”).

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Anders Brief at 7.

       Appellant’s issue presents a challenge to the discretionary aspects of his

sentence, and it is well settled that “[t]he right to appellate review of the

discretionary aspects of a sentence is not absolute.”       Commonwealth v.

Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). When an appellant challenges

the discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal. Commonwealth v. Hill, 210 A.3d 1104,

1116 (Pa. Super. 2019).            Moreover, when considering the merits of a

discretionary-aspects-of-sentencing claim, we analyze the sentencing court’s

decision under an abuse-of-discretion standard. Commonwealth v. Dodge,

77 A.3d 1263, 1274 (Pa. Super. 2013).3

       As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010):

       An appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction by satisfying a four-part test:

              [W]e 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. 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


____________________________________________


3 We recognize that the sentencing guidelines do not apply to a revocation
sentence. 204 Pa. Code § 303.1(b); Commonwealth v. Pasture, 107 A.3d
21, 27 (Pa. 2014).


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            from is not appropriate under the Sentencing Code,
            42 Pa.C.S.A. § 9781(b).

Id. at 170. Whether a particular issue constitutes a substantial question about

the appropriateness of a sentence is a question to be evaluated on a case-by-

case basis. Hill, 210 A.3d at 1116.

      Herein, Appellant filed a timely appeal and preserved the issue in his

post-sentence motion. Appellant has included a Pa.R.A.P. 2119(f) statement

in his brief. Thus, we determine whether Appellant has raised a substantial

question that the sentence imposed is inappropriate under the Sentencing

Code. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015).

      Appellant   asserts   that   the   sentence   imposed   was   manifestly

unreasonable.     Anders Brief at 9.      Specifically, Appellant posits that a

reasonable sentence would have been either eighteen to sixty months of

imprisonment as recommended by Franklin County Adult Probation or nine to

sixty months as counsel advanced in his argument at re-sentencing. Id. at 9,

12. While counsel asserts in the Pa.R.A.P. 2119(f) statement that he was

unable to advance a colorable argument that the sentence imposed was

inconsistent with a specific provision of the Sentencing Code, Anders Brief at

10, it is clear he contends that the court failed to consider Appellant’s drug

addiction, which she alleged was at the root of her criminal conduct, and

therefore, failed to consider mitigating factors. Id. at 12. We conclude that

Appellant raised a substantial question that the sentence appealed is not

appropriate under the Sentencing Code, but we find that the claim lacks merit.

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See Commonwealth v. Caldwell, 117 A.3d 763, 769-770 (Pa. Super. 2015)

(en banc) (holding that an assertion that a sentence is excessive, in

conjunction with a claim that the trial court failed to consider mitigating

factors, raises a substantial question).

      At sentencing, defense counsel had ample opportunity to provide the

court with a background of relevant mitigating factors. N.T., 1/30/19, at 7–

9. Counsel averred that Appellant’s drug addiction “inspire[d] a lot of what’s

happened here.” Id. at 8. Counsel emphasized that Appellant has children

who will “inspire her to do better.” Id. at 7. Appellant, herself, addressed

the court and also emphasized her reliance on drugs and her responsibility to

her children. Id. at 9–10.

      The sentencing judge has broad discretion in determining the proper

penalty, and this Court accords the sentencing court great deference because

the sentencing court is in the best position to view a defendant’s character,

displays of remorse, defiance, or indifference, and the overall effect and

nature of the crime.    Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (quotations and citations omitted). As we have stated, “In particular,

the court should refer to the defendant’s prior criminal record, his age,

personal characteristics and his potential for rehabilitation.” Commonwealth

v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).




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     The trial court reviewed all relevant and available information, and

informed Appellant of the basis for the sentence. In relevant part, the trial

court stated:

     [By the court:] Ms. Ayala, in imposing sentence, I’ve considered
     the Fulton County Adult Probation Department’s probation
     violation sentence summary sheet and all the attachments there
     to and I’ve considered the comments of counsel. I’ve considered
     your comments today and I’ve considered your prior record as laid
     out by the day. And I think it’s quite relevant to explain some
     things in regards to the [c]ourt’s sentence.

            The first of which is your record begins, at least as far as we
     know, from 2009 with the paraphernalia charge out of North
     Hamilton County in Pennsylvania[. T]here’s a DUI out of West
     Virginia in 2015, prostitution out of West Virginia in 2015, three
     retail thefts at the felony level in Virginia in 2016; Delaware, two
     counts in 2015; there’s an accident involving damage out of
     Delaware, 2015; another retail theft, felony level, out of this
     County in 2016; retail theft, felony level, out of this County in
     2017; there is a theft conviction out of the State of Maryland from
     2018; and then begins a number of pending theft offenses in the
     State of Maryland, State of West Virginia, Cumberland County,
     Pennsylvania and more out of Virginia that are all pending at some
     level.

           What’s interesting to the [c]ourt based upon your
     comments, Ms. Ayala, is that you have a son who’s 9 years old
     and it would appear that your criminal career launched sometime
     around the time you began having children.         So it’s a bit
     disingenuous in the [c]ourt’s mind that your children have been
     any kind of incentive for you to reform your conduct to comply
     with the law.

           In fact, based on your criminal record, it would appear that
     you care very little for your children. Your repeated violations of
     the law have basically ensured that you will not be available to
     them as a mother and that is as basic [a] violation of human
     decency as you can have.

          The mother of a child is basically the child’s last line of
     defense against the world.     Sometimes there’s a father,

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     sometimes there’s not, but the mother in almost all cases is the
     last one available to the child. And if she can’t prioritize the child
     in her life and in your case children in your life[,] that’s quite
     frankly, pretty disgusting.

            My opinion, Ms. Ayala, is—I fall somewhere between
     w[h]ere the Commonwealth is saying you’re not rehabilitatively
     capable and your attorney who says you absolutely are. It could
     be that your children are incentive for you to bring your behavior
     in conformance with the law. There’s not much evidence of that,
     if any.

            The other side of it is, there’s a substantial amount of
     evidence that you’re going to continue to victimize the
     community. Retail theft, unlike other types of theft, has a rippling
     effect. You steal an individual’s car, you victimize that individual
     and maybe their family, it makes it difficult for them to provide
     transportation for themselves and others and their family.

           You steal from a store, the store doesn’t just absorb that
     cost. In other words, the store will pass that cost along to
     everyone else who obeys the law and pays for the goods that are
     offered for sale and that results in higher prices. So your
     victimization is not just of the business and having to pay for
     security personnel and security systems and those things, but it
     goes beyond that to all the customers of that business. They now
     suffer because of your conduct. And that includes people in
     Virginia, West Virginia, North Hamilton County, the State of
     Maryland, and Fulton County.

            That’s setting aside the fact that you committed similar
     offenses while under supervision for similar conduct. There can
     really be no better evidence that you have not reformed than to
     go out and do the same thing.

N.T., 1/30/19, 11–14.

     The trial court set forth its considerations, explained the basis for the

sentence, and considered the mitigating factors put forth by Appellant.

Accordingly, we discern no abuse of discretion in the sentence imposed.




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       Finally, we have independently reviewed the record in order to

determine if counsel’s assessment about the frivolous nature of the present

appeal is correct. Yorgey, 188 A.3d at 1195. After review of the issue raised

by counsel and our independent review of the record, we conclude that an

appeal in this matter is frivolous.4 Accordingly, we grant counsel’s petition to

withdraw and affirm the judgment of sentence.

       Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/24/2019




____________________________________________


4 When reviewing the outcome of a revocation proceeding, this Court is limited
to determining the validity of the proceeding, the legality of the judgment of
sentence imposed after probation revocation, and the discretionary aspects of
sentencing. Cartrette, 83 A.3d at 1035–1037.

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