J-S31044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 KEVIN ARTERS,                           :
                                         :
                   Appellant             :   No. 3315 EDA 2017

           Appeal from the Judgment of Sentence March 27, 2017
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0004106-2010


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                         FILED OCTOBER 15, 2018

     Appellant Kevin Arters appeals from the Judgment of Sentence entered

following the revocation of his parole (“VOP”).      He challenges the VOP

sentence of 4 months and 29 days’ imprisonment (the balance of his original

term of incarceration) as excessive because it is part of an aggregate term of

35–70 years’ incarceration. Appellant’s counsel seeks to withdraw pursuant

to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant Counsel’s Petition

to Withdraw and affirm the Judgment of Sentence.

     Preliminarily, we note that Appellant is serving an aggregate sentence

of 35 to 70 years’ imprisonment as a result of four separate cases involving

sex crimes against children. The instant appeal arises from only one case,

specifically the VOP sentence imposed at CP-15-CR-4106-2010 (“CR 4106-
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2010”).1 In order to provide context for the sentencing challenge raised here,

we summarize all four cases as follows.

        On May 25, 2011, Appellant pled guilty in the case underlying this

appeal, CR-4106-2010, to Indecent Exposure, graded as a misdemeanor of

the first degree, and received a sentence of 9 to 23 months’ imprisonment

and a consecutive term of 3 years’ probation. On the same day, Appellant

also pled guilty in another case, CP-15-CR-0004105-2010 (“CR-4105-2010”),

to indecent exposure, a misdemeanor of the second degree.              The court

imposed a sentence of two years’ probation, to run consecutive to the first

sentence.

        On April 8, 2012, Appellant pled guilty at CP-15-CR-4016-2011 (“CR-

4016-2011”) to three counts of indecent exposure and one count each of

endangering the welfare of children, and corruption of minors. 2       The court

imposed an aggregate sentence of 11½ to 23 months’ imprisonment and a

consecutive term of 10 years’ probation, and found him to be a sexually violent

predator (SVP).

        On April 15, 2014, the court found Appellant to have violated his parole

and/or probation in all three cases. In CR-4105-2010, the trial court revoked


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1Appellant appealed each of the four cases. See 1464 EDA 2017, 3312 EDA
2017, and 3314 EDA 2017.

2   This new conviction did not violate Appellant’s parole or probation.




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his two years’ probation but reinstated that same term as a new violation of

probation (VOP) sentence. The trial court also revoked Appellant’s parole and

probation in the instant case, CR-4106-2010, and in CR-4016-2011 and

imposed VOP sentences totaling 22 months and 16 days’ imprisonment (the

combined balances of his maximum terms) and 12 years’ probation.3

       On July 15, 2016, after a non-jury trial, the court convicted Appellant in

a new case, CP-15-CR-0002192-2015 (“CR-2192-2015”), in which he had

been charged with luring a child into a motor vehicle, criminal use of a

communication facility, and 12 counts of sexual abuse. On March 27, 2017,

the trial court, which had the benefit of a pre-sentence investigation report,

imposed an aggregate term of 28½ to 57 years’ imprisonment and again found

that Appellant was a SVP.4

       Also on March 27, 2017, the trial court revoked the 2 years’ probation

in CR-4105-2010, and imposed a new VOP sentence of 1 to 2 years’

imprisonment and ordered it to run concurrently with the CR-2192-2015

sentence.5 Additionally, at the instant case, CR-4106-2010, the trial court
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3  Although the original sentences in CR-4106-2010 and CR-4016-2011
included a total 13 years’ probation, the new sentences of April 15, 2014 only
included 12 years’ probation.

4 The luring a child into a motor vehicle and 12 sexual abuse convictions each
carried a mandatory “second strike” minimum sentence of 25 years, and the
trial court imposed them concurrently. N.T., 3/27/17, at 14, 18, 75.

5 The original sentencing order stated that this sentence was to run
consecutively to the sentence in CR-2192-2015. However, on March 12, 2018,



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revoked Appellant’s parole and probation and sentenced him to 4 months and

29 days’ imprisonment (the balance of his maximum originally-imposed term),

to run concurrently with the CR-2192-2015 sentence, as well as a consecutive

term of 3 years’ probation. Finally, at CR-4016-2011, the trial court revoked

Appellant’s parole and sentenced him to an aggregate term of 5½ months (the

balance of his maximum term), to run concurrently with his CR-2192-2015

sentence. The court also revoked the three terms of probation in that case

and imposed three terms of imprisonment, aggregating 6½ to 13 years’

imprisonment, all to run consecutive to the sentence in CR-2192-2015. Thus,

the total aggregate sentence Appellant received in all four cases was 35 to 70

years’ imprisonment and 3 years’ probation.

       Appellant filed a timely post-sentence motion seeking reconsideration of

the sentences in all four cases, and the trial court denied it on April 10, 2017.

On May 10, 2017, Appellant filed one notice of appeal, again listing all four

cases which this Court docketed at 1464 EDA 2017. On July 18, 2017, we

quashed the appeal in this case, as well as those at CR-4105-2010 and CR-

4016-11, for untimeliness.6 On September 12, 2017, however, the trial court
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the trial court issued an order stating that it was a clerical error and, with the
agreement of the parties, amended the sentence such that it shall run
concurrently with the CP-2192-2015 sentence.

6 Appellant’s appeal from the judgment of sentence in the newest case, CR-
2192-2015, was timely because it was filed within 30 days of the denial of
post-sentence motion. See Pa.R.Crim.P. 720(A)(2)(a) (if defendant files a
timely post-sentence motion, notice of appeal shall be filed within 30 days of



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granted Appellant’s request for nunc pro tunc relief and reinstated his right to

appeal in all three VOP cases. Appellant then filed three separate appeals in

each case, and the appeal at CR-4106-2010 is presently before us.7 Counsel

has filed an Anders petition to withdraw and accompanying brief, and

Appellant has not filed any pro se or counseled response.

       The Anders brief presents the one issue for our review:

       Does the imposition of four (4) months, twenty-nine (29) days,
       followed by three (3) years’ consecutive probation for revocation
       on an Indecent Exposure case raise a substantial question that the
       Sentencing Code was violated by the sentencing court which
       imposed the sentence after a decision that Appellant had failed to
       meet terms of the court’s probation supervision when convicted
       of one count of Luring a Child into a Motor Vehicle, 18 Pa.C.S. §
       2910, twelve counts of Sexual Abuse, 18 Pa.C.S. § 6312(d), and
       one count of Criminal Use of Communication Facility, 18 Pa. C.S.
       § 7512(a)? Is such a sentence an abuse of the sentencing Court’s
       discretion?

Anders Brief at 4.

       We first consider counsel’s petition to withdraw. When presented with

an Anders brief, this Court may not review the merits of the underlying issues

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the order deciding the motion). However, in his three VOP cases, the filing of
the post-sentence motion did not toll the 30-day appeal period. See
Pa.R.Crim.P. 708(E) (filing of motion to modify sentence imposed after
revocation of probation will not toll 30-day appeal period).

7This Court affirmed Appellant’s VOP Judgment of Sentence in CR-4105-2010
on June 26, 2018. Commonwealth v. Arters, No. 3314 EDA 2017 (Pa.
Super. filed June 26, 2018). On August 27, 2018, this Court affirmed the
Judgment of Sentence imposed on CR-2192-2015. Commonwealth v.
Arters, No. 1464 EDA 2017 (Pa. Super. filed Aug. 27, 2018). Appellant’s
appeal of the VOP Judgment of Sentence imposed in CR-4016-2011 is pending
with the Court at No. 3312 EDA 2017.

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without first passing on the request to withdraw. Before counsel is permitted

to withdraw, he or she must meet the following requirements:

      First, counsel must petition the court for leave to withdraw and
      state that after making a conscientious examination of the record,
      he has determined that the appeal is frivolous; second, he must
      file a brief referring to any issues in the record of arguable merit;
      and third, he must furnish a copy of the brief to the defendant and
      advise him of his right to retain new counsel or to himself raise
      any additional points he deems worthy of the Superior Court’s
      attention.

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super. 2008)

(citations omitted).

      [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 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).                 “[W]hen

counsel meets his or her obligations, ‘it then becomes the responsibility of the

reviewing court to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Id. at 355 n.5.

      Here, Counsel’s petition to withdraw states that she has made a

conscientious examination of the record, determined that the appeal is wholly

frivolous, notified Appellant of her opinion and provided him with a copy of

her Anders brief, and advised Appellant that he may proceed pro se or retain

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private counsel.    Furthermore, as discussed infra, we are satisfied that

Counsel’s Anders brief complies with the dictates of Santiago. We therefore

proceed to an independent review of Appellant’s sole issue — a challenge to

the discretionary aspects of his sentence. See Bynum-Hamilton, 135 A.3d

at 183.

      Appellant avers that his aggregate sentence of 35 to 70 years’

incarceration, and a consecutive 3 years’ probation, is so manifestly excessive

that it constitutes too severe a punishment. Anders Brief at 12. The Anders

Brief notes that the statutory maximum term of imprisonment allowable for

the underlying crime, First Degree Indecent Exposure, is 5 years. 18 Pa.C.S.

§ 3127. The original sentence imposed was 9 to 23 months’ incarceration.

      In considering a challenge to the discretionary aspects of sentence, this

Court has stated:

      A challenge to the discretionary aspects of sentencing does not
      entitle an appellant to review as of right. An appellant challenging
      the discretionary aspects of his sentence must invoke this Court’s
      jurisdiction by satisfying a four-part test: (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. 720;
      (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 from is not appropriate under the Sentencing Code, 42
      Pa.C.S.A. § 9781(b).

Bynum-Hamilton, 135 A.3d at 184 (some citations omitted). Where counsel

files an Anders brief, we may overlook the lack of a Rule 2119(f) statement.

Id.


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       Here,    Appellant    filed   a   timely   notice   of   appeal 8    and   sought

reconsideration of his sentence in a timely post-sentence motion. The Anders

brief includes a heading, “statement of reasons to allow appeal from the

discretionary aspects of sentencing,” but the supporting discussion is that

Counsel has concluded that Appellant’s sentence was within the wide

discretion of the trial court. We do not consider this statement, however, to

impede our review of Appellant’s issue.           See Bynum-Hamilton, supra at

184.    Furthermore, Appellant’s claim of an excessive aggregate sentence

raises a substantial question. See Commonwealth v. Dodge, 77 A.3d 1263,

1270 (Pa. Super. 2013) (“defendant may raise a substantial question where

he receives consecutive sentences within the guideline ranges if the case

involves circumstances where the application of the guidelines would be

clearly unreasonable, resulting in an excessive sentence”).                Therefore, we

proceed to address the merits of Appellant’s claim.

       The sentence Appellant challenges in the instant appeal resulted from

the revocation of both parole and probation. In parole revocation cases, our

standard of review is limited to whether the revocation court erred, as a


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8 The Commonwealth argues that this Court should dismiss Appellant’s appeal
for untimeliness, where he was sentenced on March 27, 2017, but his notice
of appeal was not filed until May 10, 2017. Commonwealth’s Brief at 7. As
the Commonwealth notes elsewhere in its brief, however, this Court did quash
the appeal on July 18, 2017, but the trial court reinstated Appellant’s direct
appeal rights nunc pro tunc on September 12, 2017. Id. at 4-5. The court
provided Appellant 30 days to file a notice of appeal, and his October 11, 2017
filing of a notice of appeal was timely.

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matter of law, in deciding to revoke parole and, therefore, to recommit the

defendant to confinement. Commonwealth v. Kalichak, 943 A.2d 285, 291

(Pa. Super. 2008). In probation revocation cases, we review the VOP court’s

decision for an abuse of discretion. Commonwealth v. Hoover, 909 A.2d

321, 322 (Pa. Super. 2006) (citations omitted). Our scope of review is “limited

to determining the validity of the 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.”   Id.   at   322-33.   See   also

Commonwealth v. Cartrette, 83 A.3d 1031, 1034 (Pa. Super. 2013)

(concluding review of discretionary aspects of a sentence imposed after

revocation of probation is included in our scope of review).

      When imposing sentence upon a revocation of parole, the court’s options

for sentencing are limited.

      Unlike a probation revocation, a parole revocation does not
      involve the imposition of a new sentence. Indeed, there is no
      authority for a parole-revocation court to impose a new penalty.
      Rather, the only option for a court that decides to revoke parole
      is to recommit the defendant to serve the already-imposed,
      original sentence. At some point thereafter, the defendant may
      again be paroled.

Kalichak, supra at 290 (internal citation omitted).

      Where the sentencing court had the benefit of a pre-sentence

investigation report, we presume the court weighed all sentencing factors.

Dodge, 77 A.3d at 1275.

      To the extent Appellant challenges the length of his aggregate sentence


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of incarceration in all four cases—35 to 70 years’ imprisonment—we

emphasize that only the appeal from the VOP Judgment of Sentence in CR-

4106-2010 of 4 months, 29 days and to 3 years’ probation is before this panel.

We reiterate that on May 25, 2011, Appellant pled guilty to indecent exposure

graded as a misdemeanor of the first degree, and the trial court initially

imposed a sentence of 9 – 23 months’ imprisonment and a consecutive term

of 3 years’ probation. Approximately three years later, on April 15, 2014, the

trial court revoked his parole and probation and sentenced him to the

maximum remaining on his original term of incarceration, 11 months. The

court reimposed the term of 3 years’ probation. On March 27, 2017, the trial

court again revoked Appellant’s parole and probation; and it was within the

trial court’s authority to impose the amount of time remaining on his original

sentence of incarceration. See Kalichak, 943 A.2d at 290.

      Furthermore, we presume the trial court, which reviewed the pre-

sentence report, weighed all of the sentencing factors. See Dodge, 77 A.3d

at 1275.   In any event, the court provided an extensive explanation for

imposing a lengthy sentence. The court considered the protection of the public

and Appellant’s rehabilitative needs, and found that he was likely to reoffend.

N.T., 3/27/17, at 64. The court considered Appellant’s criminal history, which

included a 1995 conviction of corruption of the morals of a minor for having




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sexual intercourse with a 15-year-old girl;9 a 2000 conviction of stalking and

harassment for following three middle school girls in his vehicle as they walked

to and from a bus stop; a 2000 conviction of trespassing for repeatedly driving

around a high school campus and following female students; and 2003

convictions of indecent assault and indecent exposure for exposing himself to

his 19-year old mentally impaired niece, who had the intellectual capacity of

a 5-year old, and forcing her to touch his penis despite her protestations. The

court also heard that just 10 days after being paroled in 2009 after a six-year

term of incarceration, Appellant committed the indecent exposure acts in this

case and CR-4106-2010 by exposing himself to a 13-year old girl in the

children’s section of a Barnes & Noble bookstore and exposing himself to a

17-year-old girl in a Michael’s craft store. Furthermore, while living at home

for 7 months on parole, Appellant abused his 6-year old daughter, which

resulted in a conviction of endangering the welfare of a child.

        The trial court stated that Appellant’s pre-sentence investigation report

was “probably one of the worst [he] ever read because it’s . . . so consistently

alarming of [sic] the victims he chooses, where he chooses them, how he acts,

[and] his performance on probation and parole.” Id. at 51. The court noted

that Appellant had “many” opportunities for rehabilitation, but he has at times

denied his attraction to children (and sometimes admitted to it), and the court



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9   At that time, Appellant was 20 years old. N.T., 3/27/17, at 21.

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was concerned that he has not accepted “how bad a problem” he has. Id. at

67-68. In light of the foregoing, we conclude that the trial court thoroughly

and properly considered the sentencing factors and did not abuse its

discretion.

      Accordingly, upon independent review of Appellant’s claims, we

conclude that he is not entitled to relief.   Further, after conducting a full

examination of all the proceedings, as required pursuant to Anders, we

discern no non-frivolous issues to be raised on appeal. See Commonwealth

v. Yorgey, 188 A.3d 1190, 1198-99 (Pa. Super. 2018). We therefore grant

Counsel’s petition to withdraw and affirm the judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/18




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