J-S38039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                         Appellee        :
                                         :
              v.                         :
                                         :
JACOB SIMMONS,                           :
                                         :
                         Appellant       :     No. 1838 EDA 2013


        Appeal from the Judgment of Sentence Entered October 12, 2012,
             In the Court of Common Pleas of Montgomery County,
               Criminal Division, at No. CP-46-CR-0002400-2011.


BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 04, 2014

        Appellant, Jacob Simmons, appeals from the judgment of sentence

entered following the revocation of his probation. Appellate counsel has filed

a petition to withdraw his 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 a withdrawal from representation on

direc

judgment of sentence.

        The procedural history of this case is summarized as follows.      On

October 11, 2011, Appellant entered an open guilty plea to the crime of

receiving stolen property.   On February 9, 2012, the trial court sentenced

Appellant to a term of incarceration of time-served to twenty-three months
J-S38039-14



in the Montgomery County Correctional Facility, to be followed by a term of

probation of three years. Appellant was released on parole on February 13,

2012, but on May 29, 2012, he was arrested in Chester County and charged

with robbery, retail theft, and simple assault.

      The trial court summarized the subsequent protracted procedural

posture of this case as follows:

              On October 12, 2012, at a hearing pursuant to Gagnon v.
      Scarpelli, 411 U.S. 778 (1973), and Pa.R.Crim.P. 708, Jacob
      Simmons, represented by Assistant Public Defender Gregory
      Nester, entered an open stipulation to having violated the terms
      of his probation/parole supervision.                         -10,
      Oct. 12, 2012.) The Court revoked probation and sentenced
      Simmons to eleven months to three years in a state correctional
      facility, with commitment to date from June 15, 2012, and also
      remanded him to serve back time of twelve months, two days,
      concurrently, on his violation of parole, to date from June 15,
      2012, making him eligible for reparole after having served

      12, 2012; Probation/Parole Intermediate Punishment Violations
      2.) On October 22, 2012, Attorney Nester filed a timely motion
      to reconsider sentence under Pa.R.Crim.P. 708(E).

             On March 13, 2013, the Clerk of Courts entered an order
      purporting to deny the post-sentence motion by operation of law
      pursuant to Pa.R.Crim.P. 720(B)(3)(b), advising Simmons, in
      accordance with Pa.R.Crim.P. 720(B)(4), of a right, among
      others, to appeal within thirty days. However, since the Court
      had imposed the judgment of sentence for probation/parole
      violations rather than upon original conviction, the post-sentence
      procedures of Pa.R.Crim.P. 720, in particular the tolling of the
      time for appeal under Pa.R.Crim.P. 720(B)(3), did not apply, and
      the thirty-day period specified in the Pennsylvania Rules of
      Appellate Procedure, Pa.R.A.P. 903(a), for appealing the final
      judgment of sentence had expired in November 2012, and was
      not extended by the motion to reconsider the sentence imposed




                                       -2-
J-S38039-14



     motion to modify a sentence imposed after a revocation shall be
     filed within 10 days of the date of imposition. The filing of a
     motion to modify sentence will not toll the 30-day appeal


           In any event, on April 3, 2013, Attorney Nester filed a
     notice of appeal. On April 12, 2013, this Court under Pa.R.A.P.
     1925(b) ordered that a statement of matters complained of on
     appeal be filed and served. On April 30, Nester responded with a
     statement under Pa.R.A.P. 1925(c)(4) and the Pennsylvania
                                   Commonwealth v. Goodwin, 928
     A.2d 287 (Pa. Super. Ct. 2007) (en banc), certifying that a
     conscientious review of the record revealed no non-frivolous
     issues upon which to base a direct appeal from the judgment of
     sentence, and that accordingly, he, on appeal, would be
     proceeding in accordance with Anders v. California, 386 U.S. 738
     (1967), Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
     (2009), and Commonwealth v. McClendon, 495 Pa. 467, 434
     A.2d 1185 (1981), which, taken together, sanction procedures
     for counsel to wit

                      Santiago, 602 Pa. at 169, 978 A.2d at 355-
     56 (quoting McCoy v. Wisconsin, 486 U.S. 429, 438 n.10
     (1988)).

            On May 14, 2013, the Superior Court ordered Simmons to
     show cause why the appeal should not be quashed as untimely
     filed on April 3, 2013, from the judgment of sentence imposed
     on October 12, 2012, citing              Pa.R.Crim.P. 720 and
     Commonwealth v. Coleman, 721 A.2d 798 (Pa. Super. Ct. 1998)
     (quashing an appeal not filed within thirty days from sentence
     imposed upon revocation of parole/probation without prejudice
     to petitioning the trial court for allowance of appeal nunc pro
     tunc under Commonwealth v. Hall, 713 A.2d 650 (Pa. Super. Ct.
     1998),                                , 565 Pa. 92, 771 A.2d 1232
     (2001)). Commonwealth v. Simmons, No. 991 EDA 2013 (Pa.
     Super. Ct. May 14, 2013) (order to show cause why the appeal
     should not be quashed).          ln response, Attorney Nester
     discontinued the first appeal and sought permission from this
     lower Court to appeal the judgment of sentence nunc pro tunc.
     Upon being advised the Commonwealth did not oppose the




                                    -3-
J-S38039-14



       request, this Court granted leave to appeal nunc pro tunc, and
       Attorney Nester filed [the instant appeal].

Trial Court Opinion, 12/4/13, at 1-3.

       As noted, counsel has filed a petition to withdraw from representation.

Before we address the questions raised on appeal, we first must resolve

                                              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


Id. at 1032 (citation omitted).

       In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted a conscientious examination

of the record.   Following that review, counsel concluded that the present

appeal is wholly frivolous. Counsel sent to Appellant a copy of the Anders

brief and petition to withdraw, as well as a letter, a copy of which is attached

to the petition to withdraw. In the letter, counsel advised Appellant that he

could represent himself or that he could retain private counsel to represent

him.


                                        -4-
J-S38039-14




dictates in Santiago, which provide that:

     in the Anders brief that accompanies court-
     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


     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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

                                         Santiago.    It sets forth the factual

and procedural history of this case and outlines pertinent case authority. We

thus conclude that the procedural and briefing requirements for withdrawal

have been met.

     Counsel presents the following issues for our review:

     [1] DID THE VOP COURT LACK JURISDICTION TO REVOKE
     PROBATION FOR CONDUCT THAT OCCURRED PRIOR TO THE
     COMMENCEMENT OF THE TERM OF PROBATION?

     [2] DID THE VOP COURT ABUSE ITS DISCRETION WHEN IT
     IMPOSED A SENTENCE, FOLLOWING THE REVOCATION OF

     EXCESSIVE?



     In his first issue, Appellant claims that the trial court erred in revoking

his probation.   Basically, Appellant asserts that the trial court lacked




                                      -5-
J-S38039-14



authority to revoke his probationary term because Appellant never violated

the terms of his probation, as the violations occurred while Appellant was

still on parole and prior to the commencement of his term of probation. We



     This Court has long stated that a revocation court has the authority to

                                            he fact that, at the time of

revocation of probation, the defendant had not yet begun to serve the

probationary portion of the sentence. Commonwealth v. Ware, 737 A.2d

251, 253 (Pa. Super. 1999). This is so even though the offense upon which

revocation of probation was based occurred during the parole period and not

the probationary period. Id. See also Commonwealth v. Dickens, 475

A.2d 141, 144 (Pa. Super. 1984) (ruling that the fact the defendant had not

commenced serving probation when the new offense occurred did not

prevent the court from revoking its prior order placing the defendant on

probation because if the new offense is committed at any time before the

maximum period of probation has been completed, probation may be

revoked). As our Court observed in Commonwealth v. Wendowski, 420

A.2d 628 (Pa. Super. 1980):

     If, at any time before the defendant has completed the
     maximum period of probation, or before he has begun service of
     his probation, he should commit offenses of such nature as to
     demonstrate to the court that he is unworthy of probation and
     that the granting of the same would not be in subservience to
     the ends of justice and the best interests of the public, or the


                                    -6-
J-S38039-14



      defendant, the court could revoke or change the order of
      probation.

Id. at 456 (emphasis in original) (quoting James v. United States, 140

F.2d 392, 394 (5th Cir. 1944) (Waller, J., concurring)).      Essentially, the

Court in Wendowski held that, for revocation purposes, the term of

probation included the time beginning when probation was granted.

      Our review of the record in this matter reflects that Appellant pled

guilty to the crime of receiving stolen property and was originally sentenced

on February 9, 2012, to a term of incarceration of time-served to twenty-

three months in the Montgomery County Correctional Facility, to be followed

by a term of probation of three years. On February 13, 2012, Appellant was

placed on parole. On May 29, 2012, while Appellant was on parole and prior

to the beginning of his probation, Appellant was arrested in Chester County

and charged with robbery, retail theft, and simple assault.         Appellant

appeared before the trial court on October 12, 2012, and stipulated to being

in violation of the terms and conditions of his parole. At the conclusion of

t

directed that he serve his remaining backtime. N.T., 10/12/12, p.23. The



to serve a term of incarceration of eleven months to three years in a state

correctional institution, to run concurrently with his county parole backtime.

Thus, the record reflects that in May of 2012, the time during which



                                      -7-
J-S38039-14



Appellant committed offenses of such a nature as to demonstrate to the



                                                  Dickens, 475 A.2d at 144.



term of probation. Hence, Appell

      Secondly, Appellant argues that the trial court abused its discretion in

imposing the sentence following the revocation of his probation. Specifically,

Appellant contends that the sentence imposed was harsh and excessive.

      As this Court recently clarified in Cartrette, our scope of review

following the revocation of probation is not limited solely 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. Rather, it also includes challenges to the

discretionary   aspects    of   the   sentence   imposed.    Specifically,   we

                                                                        rom a



Cartrette, 83 A.3d at 1034. Further, as we have long held, the imposition

of sentence following the revocation of probation is vested within the sound

discretion of the court, which, absent an abuse of that discretion, will not be

disturbed on appeal.      Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.

Super. 2000).




                                        -8-
J-S38039-14




                                Commonwealth v. Martin, 727 A.2d 1136,

1143 (Pa. Super. 1999).        Rather, where an appellant challenges the

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

petition for allowance of appeal.     Commonwealth v. W.H.M., 932 A.2d

155, 162 (Pa. Super. 2007).

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

Super. 2010):

     An   appellant    challenging   the   discretionary   aspects   of   his

     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.
                                                     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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).   The determination of whether there is a substantial question is

made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

                                             ent with a specific provision of the




                                       -9-
J-S38039-14



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

the sentencing process. Sierra, 752 A.2d at 912-913.

      Herein, the first three requirements of the four-part test are met,

those being that Appellant brought an appropriate appeal, albeit nunc pro

tunc, raised the challenge in his post-sentence motion, and included in his

appellate brief the necessary separate concise statement of the reasons

relied upon for allowance of appeal pursuant to Pa.R.A.P.               2119(f).

Therefore, we will next determine whether Appellant raises a substantial

question requiring us to review the discretionary aspects of the sentence

imposed by the trial court.

      In a Rule 2119(f) statement, an appellant must set forth the reasons

why      the   discretionary     challenge   raises   a   substantial   question.

Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013), appeal

denied

                                                      argue the manner in which

the sentence violates either a specific provision of the sentencing scheme set

forth in the Sentencing Code or a particular fundamental norm underlying

                               Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.

Super. 2012), appeal denied, 63 A.3d 776 (Pa. 2013) (citation omitted).



and the prefatory 2119(f) statement to determine whether a substantial




                                         -10-
J-S38039-14



                   Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.

Super. 2012) (citation omitted).



abused its discretion by imposing a sentence following the revocation of

probation that was unduly harsh and excessive.           Anders Brief at 11-12.

Appellant provides this Court with nothing more than bald allegations that



      We    do   not     accept     bald    assertions   of   sentencing   errors.

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006)

(citing Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)); see

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

2007) (claiming a sentence is excessive or unreasonable does not raise a

substantial question).    Accordingly, we are constrained to conclude that

Appellant has failed to present a substantial question for our review. Thus,

we decline to address this issue.

      We also have independently reviewed the record in order to determine

                             ut the frivolity of the present appeal is correct.

Anders, Santiago, and Cartrette.             We agree with the assessment of



      Petition of counsel to withdraw is granted.         Judgment of sentence

affirmed. Jurisdiction relinquished.




                                           -11-
J-S38039-14



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/4/2014




                          -12-
