J-S58005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON BARRETT,

                            Appellant                 No. 539 MDA 2015


             Appeal from the Judgment of Sentence May 28, 2013
             in the Court of Common Pleas of Lackawanna County
              Criminal Division at Nos.: CP-35-CR-0001433-2012
                           CP-35-CR-0001629-2009
                           CP-35-CR-0001945-2009
                           CP-35-CR-0002395-2009
                           CP-35-CR-0002929-2009


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 24, 2015

        Appellant, Jason Barrett, appeals nunc pro tunc from the judgment of

sentence imposed after the revocation of his intermediate punishment.

Counsel has filed a petition to withdraw.1 We affirm Appellant’s judgment of

sentence and grant counsel’s petition.

        We take the following facts from our independent review of the record.

Between the dates of June 29, 2009 and October 29, 2009, Appellant was
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*
    Retired Senior Judge assigned to the Superior Court.
1
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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arrested three times, and charged with a total of fourteen crimes.                     On

September 9, 2010, Appellant pleaded guilty to eleven of those charges,

including: three counts each of possession with intent to deliver (PWID) and

possession of a controlled substance, four counts of possession of drug

paraphernalia, and one count of retail theft.2 In exchange for the plea, the

Commonwealth nolle prossed the remaining charges.                     The court imposed

intermediate punishment by placing Appellant under treatment court

supervision.

        On May 18, 2012, Appellant was arrested for theft by unlawful taking, 3

receiving stolen property,4 and trespass by motor vehicle.5                     Appellant

pleaded guilty on October 18, 2012, to one count of theft by unlawful taking.

The court deferred disposition to the treatment court.                The remaining two

charges were nolle prossed pursuant to the plea agreement. On March 28,

2013,     the   Commonwealth        filed      a   petition   to   terminate   Appellant’s

intermediate punishment for his violation of the drug treatment program’s

terms, and the court terminated him from the program that day. On May

28, 2013, the court sentenced him to an aggregate term of incarceration of

____________________________________________


2
    35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), and 18 Pa.C.S.A. § 3929.
3
    18 Pa.C.S.A. § 3921.
4
    18 Pa.C.S.A. § 3925.
5
    75 Pa.C.S.A. § 3717.



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not less than seventy-two nor more than one hundred forty-four months in a

state correctional facility, plus eight years’ probation.

        On June 4, 2013, Appellant filed a motion for reconsideration of

sentence. He filed an amended motion on June 25, 2013, which the court

denied on July 19, 2013. On August 22, 2013, Appellant filed a notice of

appeal, which this Court quashed as untimely on October 18, 2013.

        On January 27, 2014, Appellant filed a Petition for Post-Conviction

Collateral Relief,6 in which he sought reinstatement of his direct appeal

rights.      The court appointed counsel on February 27, 2014.                  The

Commonwealth filed a response on April 14, 2014. On February 25, 2015,

the court granted the petition without a hearing.           Appellant timely filed a

direct appeal on March 23, 2015.7              Counsel filed an Anders brief and a

petition to withdraw on July 2, 2015, on the basis that the appeal is wholly

frivolous.

        The standard of review for an Anders brief is well-settled:

        Court-appointed counsel who seek to withdraw from
        representing an appellant on direct appeal on the basis that the
        appeal is frivolous must:

                    (1) petition the court for leave to withdraw
              stating   that,   after  making    a  conscientious
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6
    42 Pa.C.S.A. §§ 9541-9546.
7
 Appellant filed a timely Rule 1925(b) statement of errors complained of on
appeal on April 8, 2015 pursuant to the court’s order. See Pa.R.A.P.
1925(b). The court chose not to file an opinion. See Pa.R.A.P. 1925(a).



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              examination of the record, counsel has determined
              that the appeal would be frivolous; (2) file a brief
              referring to anything that arguably might support the
              appeal but which does not resemble a “no-merit”
              letter or amicus curiae brief; and (3) furnish a copy
              of the brief to the defendant and advise the
              defendant of his or her right to retain new counsel or
              raise any additional points that he or she deems
              worthy of the court’s attention.

             [T]his Court may not review the merits of the underlying
       issues without first passing on the request to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations

and most quotation marks omitted).             Further, our Supreme Court ruled in

Santiago, supra, that Anders briefs must contain “a discussion of

counsel’s reasons for believing that the client’s appeal is frivolous[.]”

Santiago, supra at 360.

       Instantly, counsel’s Anders brief and petition to withdraw substantially

comply with the applicable technical requirements and reveal that he has

made “a conscientious examination of the record [and] determined that the

appeal would be frivolous[.]” Lilley, supra at 997.8 Additionally, the record

establishes that counsel served Appellant with a copy of the Anders brief

and petition to withdraw, and a letter of notice which advised Appellant of

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8
  Counsel inaccurately identifies his petition to withdraw as being filed
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).                 (See
Counsel’s Petition to Withdraw, 7/02/15, at 1). However, this appears to be
merely a scrivener’s error because he has filed the required Anders brief.




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his right to retain new counsel or to proceed pro se and raise additional

issues to this Court.9      See id.; (see also Counsel’s Petition to Withdraw,

7/02/15, Exhibit 1, at 1). Further, the petition and brief cite “to anything

that arguably might support the appeal[.]” Lilley, supra at 997; (see also

Anders Brief, at 5-8).        As noted by our Supreme Court in Santiago, the

fact that some of counsel’s statements arguably support the frivolity of the

appeal does not violate the requirements of Anders. See Santiago, supra

at 360-61.

        Having concluded that counsel’s petition and brief substantially comply

with the technical Anders requirements, we must “conduct [our] own review

of the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”        Lilley, supra at 998

(citation omitted).

        The Anders brief raises one question for our review: “Did the [t]rial

[c]ourt impose a sentence that was harsh and excessive and should have

been run concurrently rather than consecutively?” (Anders Brief, at 4).

        We observe first that Appellant’s issue challenges the discretionary

aspects of his sentence, and “this Court’s scope of review in an appeal from

a revocation sentencing includes discretionary sentencing challenges. . . .

Likewise, our abuse of discretion standard of review in revocation sentencing

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9
    Appellant has not filed a response to the petition to withdraw.



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cases requires us to consider whether a sentencing court exhibited

prejudice, bias, ill-will or partiality.” Commonwealth v. Cartrette, 83 A.3d

1030, 1034, 1041 (Pa. Super. 2013) (footnote and citation omitted).

     However, it is well-settled that:

           There is no absolute right to appeal when challenging the
     discretionary aspect of a sentence.       Rather, an appeal is
     permitted only after this Court determines that there is a
     substantial question that the sentence was not appropriate under
     the sentencing code. In determining whether a substantial
     question exists, this Court does not examine the merits of the
     sentencing claim.

           In addition, issues challenging the discretionary aspects of
     a sentence must be raised in a post-sentence motion or by
     presenting the claim to the trial court during the sentencing
     proceedings. Absent such efforts, an objection to a discretionary
     aspect of a sentence is waived. Furthermore, a defendant is
     required to preserve the issue in a court-ordered Pa.R.A.P.
     1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.

Id. at 1042 (brackets, citations, and quotation marks omitted).

     “We examine an appellant’s Pa.R.A.P. 2119(f) statement to determine

whether a substantial question exists.     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.”

Commonwealth v. Hill, 66 A.3d 359, 364 (Pa. Super. 2013) (citations

omitted) (emphases in original).

     Here, Appellant has met the procedural requirements of raising his

issue in his post-sentence motion, preserving this issue in his Rule 1925(b)

statement, and including a Rule 2119(f) statement in his brief.           (See


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Amended Petition for Reconsideration of Sentence, 6/25/13, at unnumbered

pages 2-3; Rule 1925(b) Statement, 4/08/15; Anders Brief, at 6-7).

However, his statement fails to raise a substantial question where his

sentence was within the guideline range and he claims excessiveness based

only on the consecutive nature of the sentence.          See Commonwealth v.

Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal denied, 91 A.3d 161

(Pa. 2014) (“[B]ald claim of excessiveness due to the consecutive nature of

a sentence will not raise a substantial question.”) (citations omitted).

      Moreover, our own independent review reveals that the court did not

abuse its discretion when fashioning Appellant’s sentence.              The court

considered the particular circumstances of Appellant’s case, including its

history    with   Appellant   and   his    multiple   unsuccessful   attempts   at

rehabilitation. (See N.T. Sentencing, 5/28/13, at 4-5).              Further, “the

sentencing court [did not] exhibit[] prejudice, bias, ill-will or partiality.”

Cartrette, supra at 1041 (footnote and citation omitted).            Therefore, we

agree with counsel that Appellant’s issue on appeal is frivolous. See Lilley,

supra at 998. Additionally, we find no other non-frivolous issues that would

merit relief.

      Judgment of sentence affirmed.            Counsel’s application to withdraw

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2015




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