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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
                 v.                  :
                                     :
JOHN DEALBERTIS,                     :        No. 1864 EDA 2018
                                     :
                      Appellant      :


      Appeal from the Judgment of Sentence Entered May 25, 2018,
             in the Court of Common Pleas of Monroe County
           Criminal Division at Nos. CP-45-CR-0001029-2016,
                         CP-45-CR-0002845-2013



COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
                 v.                  :
                                     :
JOHN DEALBERTIS,                     :         No. 948 EDA 2019
                                     :
                      Appellant      :


      Appeal from the Judgment of Sentence Entered May 25, 2018,
             in the Court of Common Pleas of Monroe County
           Criminal Division at Nos. CP-45-CR-0001029-2016,
                         CP-45-CR-0002845-2013


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED MAY 29, 2019

     John Dealbertis appeals from the May 25, 2018 judgments of sentence

entered by the Court of Common Pleas of Monroe County following his
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conviction of criminal use of a communication facility.1          The trial court

appointed the Monroe County Public Defender’s Office as counsel for his

appeals. Eric C. Closs, Esq., filed an application to withdraw his appearance

on November 9, 2018, alleging that the appeals are wholly frivolous,

accompanied by an Anders brief.2              After careful review, we grant

Attorney Closs’s withdrawal application and affirm the judgments of sentence.

        The trial court provided the following synopsis of the relevant procedural

history:

              On May 21, 2014, [appellant] pled guilty in case
              No. 2845 Criminal 2013 to Retail Theft[3] as a felony
              of the third degree. Despite the felony grading and a
              prior record, [appellant] was sentenced to two years
              of probation.

              In April of 2016, while still on probation, [appellant]
              was arrested and charged in case No. 1029 Criminal
              2016 with Possession With the Intent to Deliver
              Heroin,[4] related drug charges, and Criminal Use of a
              Communication Facility. As a result, a probation
              violation petition was filed.

              On May 11, 2016, [appellant] pled guilty in case
              No. 1029 to Criminal Use of a Communication
              [F]acility and admitted to violating the terms of his
              probation in case No. 2845. We entered orders
              directing that [appellant] be evaluated for the [State
              Intermediate Punishment (“SIP”)] program.

1   18 Pa.C.S.A. § 7512(a).

2See Anders v. California, 386 U.S. 738 (1986), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).

3   18 Pa.C.S.A. § 3929(a).

4   35 P.S. § 780-113(a)(30).


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          The Department of Corrections (DOC) subsequently
          determined that [appellant] was suitable for SIP. On
          August 29, 2016, we issued orders sentencing
          [appellant] in both cases to the program.

          [Appellant] did well in the first two phases (in prison
          treatment immediately followed by two months of
          treatment in a privately run inpatient facility) of the
          four-phase program. However, he struggled in the
          community based third and fourth phases of the
          program. Specifically, he relapsed and used drugs on
          three occasions, thereby violating the terms of the
          program, the last of which occurred while [appellant]
          was in the fourth and final phase. After the third
          relapse, the DOC determined that, due to the multiple
          relapses, [appellant] required inpatient treatment
          which would have required him to be placed back in
          phase two. However, [appellant] did not have enough
          time left to complete inpatient and finish out SIP.
          Accordingly, the DOC expelled him from the program.

          On May 25, 2018, [the trial court] convened a
          revocation and resentencing hearing. Based on the
          expulsion, [the trial court] revoked [appellant]’s SIP
          sentences. Counsel for [appellant] asked that [the
          trial court] give credit for all time spent in phases one
          and two of the program and impose a sentence that
          would make [appellant] immediately eligible for
          parole. [Appellant] acknowledged his relapses and
          drug usage, but told the [trial court] that he had
          gotten a lot out of the program and was a better
          person now than when he went into SIP.                The
          Commonwealth asked for 15 to 30 months[’]
          incarceration in both cases, to be run consecutively,
          for an aggregate sentence of 30 to 60 months. After
          considering the expulsion letter from the DOC,
          guideline sentencing sheets and a resentencing
          memorandum prepared by our Probation office, and
          the history of these cases, including [appellant]’s
          commission of felony crimes, his violation of
          probation, his expulsion from the beneficial
          SIP program, his addiction, and his criminal history,
          which added up to a prior record score of 3, [the trial


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            court] resentenced [appellant] in case No. 1029 to
            15 to 30 months, a standard range sentence, and in
            case No. 2845 to a consecutive period of incarceration
            of 12 to 24 months,[Footnote 1] for an aggregate
            sentence of 27 to 54 months. [The trial court] gave
            [appellant] time credit of 395 days representing all
            time spent in the first two phases of the program.

                  [Footnote 1] The standard range in case
                  No. 2845 was RS to less than 12 months.
                  Thus, the individual sentence imposed in
                  that case is technically above the
                  standard range in that it exceeds the top
                  end standard range sentence by one day.
                  However, the standard range in case
                  No. 1029 is 9 to 16 months. Thus, the
                  aggregate sentence does not exceed the
                  sum total of the top end of the standard
                  range in each of the two cases.

Trial court opinion, 8/27/18 at 1-3.

      Appellant filed a motion to reconsider on June 1, 2018.        On June 4,

2018, the trial court denied appellant’s motion to reconsider. On June 22,

2018, appellant filed notices of appeal to this court. That same day, the trial

court ordered appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on July 12, 2018.

On August 27, 2018, the trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a).

      On July 22, 2018, this court filed an order directing appellant to show

cause why his appeal should not be quashed pursuant to our supreme court’s

holding in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).                The

Walker court mandated that in cases where “a single order resolves issues



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arising on more than one lower court docket, separate notices of appeal must

be filed. The failure to do so will result in quashal of the appeal.” Id. at 971

(footnote omitted).      Appellant responded to the rule to show cause on

August 1, 2018, averring that he filed two notices of appeal with the trial

court. On August 28, 2018, this court entered an order discharging the rule

to show cause, deferring the issue to the merits panel.

      Here, the record reflects that appellant filed two separate notices of

appeal, each containing both trial court docket numbers. Indeed, the trial

court’s docket sheets for both docket numbers reflect that appellant filed a

notice of appeal. As noted by appellant in his response to our order to show

cause, the notices of appeal also contain two different time stamps. (See

appellant’s answer to rule to show cause, 8/1/18 at 2, ¶¶ 3-4.) Based on our

review of the record, we find that appellant has complied with Walker’s

mandate that separate notices of appeal be filed in cases where a single order

resolves issues on more than one lower court docket.5 Now that we have

determined that quashal is not required under Walker, we turn to the merits

of appellant’s appeal.




5 Appellant filed an application for consolidation which this court denied on
August 28, 2018, because we received only one notice of appeal from the trial
court. Because appellant filed two separate notices of appeal, we generated
a new docket number, 948 EDA 2019, and transferred a copy of all filings from
No. 1864 EDA 2018 to No. 948 EDA 2019. On April 5, 2019, this court entered
an order sua sponte consolidating the appeals at Nos. 1864 EDA 2018 and
948 EDA 2019 pursuant to Pa.R.A.P. 513.


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     On November 9, 2018, Attorney Closs filed a petition in this court to

withdraw as counsel and an Anders brief, wherein Attorney Closs states there

are no non-frivolous issues preserved for our review.

           A request by appointed counsel to withdraw pursuant
           to Anders and Santiago gives rise to certain
           requirements and obligations, for both appointed
           counsel and this Court. Commonwealth v. Flowers,
           113 A.3d 1246, 1247-1248 (Pa.Super. 2015).

                 These requirements and the significant
                 protection they provide to an Anders
                 appellant arise because a criminal
                 defendant has a constitutional right to a
                 direct appeal and to counsel on that
                 appeal. Commonwealth v. Woods, 939
                 A.2d 896, 898 (Pa.Super. 2007). This
                 Court     has     summarized        these
                 requirements as follows:

                       Direct appeal counsel seeking
                       to withdraw under Anders
                       must file a petition averring
                       that, after a conscientious
                       examination of the record,
                       counsel finds the appeal to be
                       wholly frivolous.      Counsel
                       must also file an Anders brief
                       setting forth issues that might
                       arguably support the appeal
                       along with any other issues
                       necessary for the effective
                       appellate          presentation
                       thereof.

                       Anders counsel must also
                       provide a copy of the Anders
                       petition and brief to the
                       appellant,     advising      the
                       appellant of the right to retain
                       new counsel, proceed pro se
                       or raise any additional points


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                      worthy     of     this    Court’s
                      attention.

                Woods, 939      A.2d     at    898   (citations
                omitted).

                There are also requirements as to the
                precise content of an Anders brief:

                    [T]he     Anders      brief   that
                    accompanies       court-appointed
                    counsel’s petition to withdraw
                    . . . 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.

                Santiago, 978 A.2d at 361.

          Id. at 1248. If this Court determines that appointed
          counsel has met these obligations, it is then our
          responsibility “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 1248. In so doing, we review not only the
          issues identified by appointed counsel in the Anders
          brief, but examine all of the proceedings to “make
          certain that appointed counsel has not overlooked the
          existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).


                                      -7-
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      Our review of Attorney Closs’s petition to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of the

foregoing requirements.6 We note that counsel also furnished a copy of the

brief to appellant; advised him of his right to retain new counsel, proceed

pro se, or raise any additional points that he deems worthy of this court’s

attention; and attached to the Anders petition a copy of the letter sent to

appellant as required under Commonwealth v. Millisock, 873 A.2d 748, 752

(Pa.Super. 2005) (citation omitted), pursuant to this court’s November 20,

2008 order. See Commonwealth v. Daniels, 999 A.3d 590, 594 (Pa.Super.

2010) (“While the Supreme Court in Santiago set forth the new requirements

for an Anders brief, which are quoted above, the holding did not abrogate the

notice requirements set forth in Millisock that remain binding legal

precedent.”). Appellant did not respond to Attorney Closs’s Anders brief. As

Attorney Closs has complied with all of the requirements set forth above, we

conclude that counsel has satisfied the procedural requirements of Anders.

      Once counsel has met his 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.”   Santiago, 978 A.2d at 355 n.5, quoting Commonwealth v.


6We note that counsel did not attach a copy of the letter to appellant informing
him of his right to either privately retain counsel or proceed pro se to his
Anders brief. On November 20, 2018, this court entered a per curiam order
directing Attorney Closs to provide a copy of the letter, and Attorney Closs
complied.


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McClendon, 434 A.2d 1185, 1187 (Pa. 1981). Thus, we now turn to the

merits of appellant’s appeal.

      Appellant raises the following issue for our review:

            Whether Appellate Counsel should be permitted to
            withdraw pursuant to Anders and considering the
            following issues:

            a.    Whether the lower court entered an
                  excessive sentence?

            b.    Whether the lower court failed to consider
                  a sentencing alternative?

            c.    Whether the Appellant should not have
                  been resentenced because he filed a
                  grievance regarding his expulsion from
                  SIP?

Anders brief at 4.

      Attorney Closs examined the first two issues relating to appellant’s

sentence and concludes that the appeal is frivolous because the record

demonstrates that appellant’s sentence was within the standard range of the

sentencing guidelines and that the trial court considered sentencing

alternatives to incarceration. (See Anders brief at 10-15.) Attorney Closs

also examined the third issue on appeal relating to whether the trial court

erred by resentencing appellant because he filed a grievance concerning his

expulsion from the SIP program and concluded that the trial court was not

permitted to review the reasons for appellant’s expulsion from the SIP

program; rather, the court could only make a determination as to whether

appellant had been expelled from the SIP program. (Anders brief at 15-16;


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citing Commonwealth v. Schultz, 116 A.3d 1116, 1121 (Pa.Super. 2015);

42 Pa.C.S.A. § 9774(b).)

      Although Attorney Closs advances no argument in the Anders brief with

respect to these potential issues, we reiterate that neither Anders nor

McClendon requires counsel to set forth an argument; rather, Anders

requires counsel to provide references to anything in the record that might

arguably support the appeal. Santiago, 978 A.2d at 364. Attorney Closs has

done so. After carefully reviewing the record in this case, we conclude that it

supports Attorney Closs’s assessment that the appeal is frivolous because the

record demonstrates that appellant’s sentence was not excessive, the trial

court considered sentencing alternatives to incarceration, and appellant’s third

issue is waived on appeal.

      Moreover, our independent review of the entire record reveals no

non-frivolous claims.

      Judgments of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary




Date: 5/29/19




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