J-S56033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID MICHAEL SMITH,

                            Appellant                 No. 767 MDA 2014


              Appeal from the Judgment of Sentence April 4, 2014
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0003204-2001


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 07, 2014

        Appellant, David Michael Smith, appeals from the sentence imposed



from representation pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We



        On April 2, 2003, a jury convicted Appellant of one count each of rape,

statutory sexual assault, involuntary deviate sexual intercourse, terroristic

threats, and corruption of minors; and two counts each of simple assault and




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S56033-14


indecent assault.1

                                                       daughter, was eleven-years-

old, and continued for a three-year period. When the victim was fourteen,



On June 11, 2003, the court sentenced Appellant to an aggregate term of

incarceration of not less than six nor more than twelve years, to be followed

by eight years of probation. (See N.T. Sentencing Hearing, 6/11/03, at 25-

26).   The probationary sentences were applied to the convictions of one

count each of terroristic threats and corruption of minors, and two counts of

simple assault. (See id.).

       Appellant was released from prison in June 2013.              On August 27,

2013, the Commonwealth commenced violation of probation proceedings

against Appellant for his failure to comply with the term of his probation that

he attend and complete sex offender treatment. On November 8, 2013, the

trial court held a probation violation hearing.             Brian Hoffman, of the

Pennsylvania      Board      of    Probation     and   Parole,   testified   on   the

                                  See N.T. Probation Violation Hearing, 11/08/13,

at 6-24).     Agent Hoffman stated that he began supervising Appellant on

Monday, June 17, 2013, after his release from prison on Saturday, June 15,

____________________________________________


1
 18 Pa.C.S.A. §§ 3121(a)(6), 3122.1, 3123(a)(7), 2706(a)(1), 6301(a)(1),
2701(a)(1), and 3123(a)(7) and (8), respectively.




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2013. (See id. at 7, 19). At that time, Agent Hoffman review

conditions of probation with him, specifically, condition number eight, that

he was required to engage in sex offender treatment. (See id. at 8, 21-22).

He provided Appellant with all contact information for Triad Treatment

Specialists to enable him to enroll in therapy, but Appellant was very

resistant to treatment. (See id. at 11, 22-23). Agent Hoffman testified that

Triad Treatment Specialists did not admit Appellant into therapy because he



(Id. at 13). At that point, Appellant was taken into custody for violating the

terms of his probation. (See id. at 14).

      Molly Simmons, a counselor from Triad Treatment Specialists, testified

that at her initial, July 2013, evaluation of Appellant, he indicated that he



            Id. at 26; see id. at 25). On August 8, 2013, Appellant told Ms.

                                                           g [in treatment] if

[he] would be required [to admit that he had] intentional sexual contact with

              Id. at 28).   When advised that he could take a therapeutic

polygraph examination in lieu of treatment, Appellant stated that he refused

to pay for it. (See id.                                    -examined both of



(See id. at 18-24, 30-37, 39-53).




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probation beca

all issues of credibility . . . [Appellant] has violated the terms of his

probation . . . [and] probation has been an ineffective means of promoting

                               Id. at 61).   The court scheduled sentencing

for January 10, 2014, and ordered the preparation of a pre-sentence

investigation (PSI) report. (See id.).

      On January 10, 2014, the court held a sentencing hearing, during

                                                       f testimony from the

probation violation hearing, and the record in this case. (See N.T. Hearing,

1/10/14, at 6-13). In pertinent part, the court found that Appellant refused

to participate [in sex offender treatment or] to pay for the polygraph

examination to determine whether, in fact, [he was] being deceptive with

                                  Id. at 11). Thereafter, the court imposed



incarceration, followed by five years of probation. (See id. at 14; Violation

Sentence Sheet, 1/10/14, at 1).

      Appellant filed a motion to modify sentence and, on January 29, 2014,

the court vacated its sentence and ordered a new sentencing hearing.      At

the April 4, 2014 hearing, the court made the same factual findings as it had

previously, (see N.T. Re-Sentencing Hearing, 4/04/14, at 13, 25-30), and

imposed an aggregate sentence of not less than two and one-half nor more


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J-S56033-14


                                                                       See id.

at 33; Violation Sentence Sheet, 4/04/14, at 1). Appellant timely appealed. 2

       On July 7, 2014, counsel filed an application to withdraw and an

Anders brief on the basis that the appeal is 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
              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                                     -
              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 co

       [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 quotation marks omitted).              Further, our Supreme Court ruled in
____________________________________________


2
  Pursuant to the se
court that he would be filing an Anders brief. See Pa.R.A.P. 1925(c)(4).
The court filed a Rule 1925(a) opinion on May 16, 2014, in which it stated
                                               omplained of on appeal, it

Court Opinion, 5/16/14, at 2); see also Commonwealth v. McBride, 957

file an Anders[] brief pursuant to Rule 1925(c)(4), a trial court opinion is




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Santiago, supra, that Anders



Santiago, supra at 360.

                             Anders      brief   and   application   to   withdraw

substantially comply with the applicable technical requirements and reveal

                          conscientious examination of the record [and]

                                                          Lilley, supra at 997.

Additionally, the record establishes that counsel served Appellant with copies

of the Anders brief and the application to withdraw, and a notice that

advised Appellant of his right to retain new counsel or to proceed pro se and

raise additional issues to this Court.    See id.; (see also Application For

Leave to Withdraw as Counsel, 7/07/14, Exhibit A). Further, the brief cites

to anything that arguably might support the appeal[             Lilley, supra at

997; (see also Anders Brief, at 13-16). As noted by our Supreme Court in

Santiago, the fact that some of coun

frivolity of the appeal does not violate the requirements of Anders.          See

Santiago, supra at 360-61.



comply with the technical Anders requirements,



                                                                            Lilley,

supra at 998 (citation omitted).


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J-S56033-14


      The Anders

appellate counsel be permitted to withdraw as counsel because any appellate

                                                 Anders Brief, at 4).   Counsel



appeal his judgment of sentence[, but that he] has not communicated to

                                               Id. at 12). However, the Anders

brief addresses the question of whether the evidence was sufficient to

                                                  n. (Id. at 14). Accordingly,

we will conduct our own independent review of this issue.

      Our scope of review of an appeal from a sentence imposed following

the revocation of probation is well-settled:

             Our review is limited 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. 42 Pa.C.S.[A.] §
      9771(b).     Also, upon sentencing following a revocation of
      probation, the trial court is limited only by the maximum
      sentence that it could have imposed originally at the time of the
      probationary sentence.

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)

(case citations omitted).

                  A probation violation is established whenever it
            is shown that the conduct of the probationer
            indicates the probation has proven to have been an
            ineffective vehicle to accomplish rehabilitation and
            not sufficient to deter against future antisocial
            conduct.

      Moreover, the Commonwealth need only make this showing by a
      preponderance of the evidence.[1]

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J-S56033-14



           1

           burden of proof in the administration of justice, and
           it is defined as the greater weight of the evidence,


Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010), appeal

denied, 20 A.3d 1211 (Pa. 2011) (citations omitted).

                                                           probation officer,




all contact information for Triad Treatment Specialists, but that Appellant

was not admitted into treatment.    (See N.T. Probation Violation Hearing,

11/08/13, at 7-8, 11, 13, 19-23). Triad counselor Molly Simmons testified

that Appellant was not admitted into sexual offender treatment because of

his continued failure to admit that he had committed the acts for which he

was convicted, and his refusal to pay for a therapeutic polygraph

examination in lieu of counseling. (See id. at 25-26, 28-29).



finding that Appellant had violated the terms of his probation by failing to



                                                            Id. at 61); see

also Ortega, supra at 886.

     Moreover, we observe that, when Appellant originally was sentenced,

he faced a maximum aggregate term of incarceration of fourteen years for


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the crimes of simple assault, terroristic threats, and corruption of minors.

(See N.T. Re-Sentencing, 4/04/14, at 22-23, 26); see also 18 Pa.C.S.A. §

1104(1), (2). Therefore, the sentence of not less than two and one-half nor



imposed after his probation revocation,                      the maximum

sentence that [the court] could have imposed originally at the time of the

                          MacGregor, supra at 317.



                                         Lilley, supra at 998; see also

MacGregor, supra at 317.       Additionally, we find no other non-frivolous

issues.



granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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