J-A20022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN AUSTIN SHIREY                        :
                                               :
                       Appellant               :   No. 825 WDA 2017

              Appeal from the Judgment of Sentence May 3, 2017
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000102-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                              FILED AUGUST 3, 2018

        Kevin Austin Shirey appeals from the judgment of sentence, entered in

the Court of Common Pleas of Jefferson County, after he pled guilty to

patronizing a prostitute1 and criminal conspiracy to patronize prostitutes.2

Shirey’s counsel has filed a petition to withdraw as counsel, together with an

Anders/Santiago3 brief.          We find that Shirey’s counsel has satisfied the




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1   18 Pa.C.S.A. § 5902(e).

2   18 Pa.C.S.A. § 903(a)(1).

3 See Anders v. California, 386 U.S. 738 (1967) (setting forth three general
requirements counsel must satisfy in order to withdraw from representation
on direct appeal); see also Commonwealth v. Santiago, 978 A.2d 349, 361
(Pa. 2009) (expanding on Anders by requiring counsel to explain why
appellant’s claim is frivolous).
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Anders/Santiago requirements. We accordingly grant counsel’s petition to

withdraw as counsel, and we affirm Shirey’s judgment of sentence.

       On July 6, 2016, after Shirey pleaded guilty to the above-mentioned

crimes, the trial court sentenced him to one year of probation on each count,

running consecutively. Shirey committed a technical violation of his probation

by using methamphetamine, and after a Gagnon II4 hearing on December 7,

2016, the court modified his sentence to include 29 days’ incarceration. On

May 3, 2017, Shirey admitted to another technical violation of his probation,

again using methamphetamine. The court revoked his probation and imposed

an aggregate sentence of one to two years’ incarceration in a state correctional

facility, with credit for time served. On May 15, 2017, Shirey filed a motion

for reconsideration of sentence, which was denied.         This timely appeal

followed.

       Before this Court may review the merits of Shirey’s case, we must first

address appointed counsel’s petition to withdraw.         Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007).            In order to properly

withdraw, counsel must file an Anders brief in place of an advocate’s brief.

Anders, supra; see Commonwealth v. Nischan, 928 A.2d 349, 352 (Pa.

Super. 2007). Our Supreme Court, in Santiago, 978 A.2d at 361, set forth

four requirements that counsel must include in the Anders brief:
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4 See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (finding due process
violation where probationer was not afforded either a preliminary revocation
hearing or a final hearing); see also Morrissey v. Brewer, 408 U.S. 471
(1972) (outlining minimal due process requirements for parole revocation).

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      (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.

      Counsel must furnish a copy of the Anders brief to the appellant.

Nischan, 928 A.2d at 353.       Counsel must include with the brief a letter

advising the appellant of his right to: “(1) retain new counsel to pursue the

appeal; (2) proceed pro se on appeal; or (3) raise any points that the

appellant deems worthy of the court’s attention in addition to the points raised

by counsel in the Anders brief.” Id. Counsel’s petition to withdraw must also

include the letter. See id. at 354.

      Instantly, counsel’s Anders brief meets the standards required by

Santiago. Counsel sets forth one issue in the brief:

      Whether the [t]rial [c]ourt committed an abuse of discretion when
      it revoked [Shirey]’s probation/parole and re-sentenced him to
      serve a sentence of a minimum of one (1) to a maximum two (2)
      years in a [s]tate [c]orrectional [i]nstitution given the
      circumstances of the case.

Anders Brief, at 4.

      In his discussion regarding this issue, counsel cites the relevant law

concerning revocation of probation, and in what situations total confinement



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is appropriate. Counsel articulates Shirey’s position in a neutral fashion, and

does not make any argument against Shirey’s interests.            Counsel then

concludes that Shirey offers no issues of arguable merit, and relies on the trial

court’s opinion when explaining the reasons for his conclusion. On May 24,

2018, counsel supplied Shirey with the Anders brief and a letter that complied

with the factors articulated in Nischan. This letter was appended to counsel’s

petition to withdraw.5 We accordingly find that counsel has met the technical

requirements of Santiago.           We will thus proceed to determine whether

Shirey’s claim is wholly frivolous.

       Shirey challenges the discretionary aspects of his sentence.          Our

standard of review regarding challenges to the discretionary aspects of

sentencing is well settled:

       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. In this context, an abuse
       of discretion is not shown merely by an error in judgment. Rather,
       the appellant must establish, by reference to the record, that the
       sentencing court ignored or misapplied the law, exercised its
       judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

       The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

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5 Shirey has not filed any supplemental filings in response to counsel’s petition
to withdraw.

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2004). To determine if this Court may review the discretionary aspects of a

sentence, we employ a four-part test: “(1) [W]hether appellant has filed a

timely notice of appeal; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify [the] sentence; (3)

whether appellant’s brief has a fatal defect; and (4) whether there is a

substantial question that the sentence appealed from is not appropriate under

the Sentencing Code.” Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006) (internal citations omitted).

        Here, Shirey preserved his issues in his motion for reconsideration and

timely filed a notice of appeal.         He also properly raised his issues in his

Pa.R.A.P. 1925(b) statement. Furthermore, counsel included in the Anders

brief a Pa.R.A.P. 2119(f) concise statement of reasons relied upon for

allowance of appeal, asserting, “The sentence was manifestly unreasonable in

that it was excessive and constituted too severe a punishment under the

circumstances of the case and the probation violation, and that the Court’s

reasons for the sentence did not justify the severity.” Anders Brief, at 6.

        An appellant raises a substantial question if he can show “actions by the

trial court inconsistent with the Sentencing Code[6] or contrary to the

fundamental norms underlying the sentencing process.” Commonwealth v.

Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (citation omitted).              “The

determination of whether a particular issue raises a substantial question is to

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6   42 Pa.C.S.A. §§ 9701–9799.75.

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be evaluated on a case-by-case basis.” McAfee, 849 A.2d at 274. This Court

has previously held:    “On appeal from a revocation proceeding, we find a

substantial question is presented when a sentence of total confinement, in

excess of the original sentence, is imposed as a result of a technical violation

of parole or probation.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.

Super. 2000).

      We conclude that Shirey does raise a substantial question.        Shirey’s

original sentence was an aggregate two years of probation. After revoking his

probation, the trial court imposed an aggregate sentence of total confinement

for one to two years’ incarceration in a state correctional facility.   Shirey’s

sentence of total confinement exceeds his original sentence of probation. See

id. Thus, Shirey raises a substantial question, and we will review the merits

of his case.

      Pursuant to 42 Pa.C.S.A. § 9771(c), “[t]he court shall not impose a

sentence of total confinement upon revocation unless it finds that: (1) the

defendant has been convicted of another crime; or (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.” Instantly, the trial court specifically discussed these factors in

its opinion, and stated:

      As he stood before the [c]ourt on May 3, 2017, then, [Shirey]
      evidenced his utter disregard for the [c]ourt’s sentencing
      authority, as well as a disturbing disregard for the seriousness of
      his underlying offenses. To vindicate its authority . . . the


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      [c]ourt deemed a sentence of total incarceration would be
      the most appropriate sentencing alternative.

Trial Court Opinion, filed 9/14/17, at 1-2 (emphasis added).

      Shirey’s claim warrants him no relief.     Having found that counsel

satisfied the Santiago requirements, and having determined that Shirey’s

appeal is wholly frivolous, we grant counsel’s petition to withdraw and affirm

Shirey’s judgment of sentence.

      Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2018




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