J-S41036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

TERRANCE BISHOP

                            Appellant                     No. 355 EDA 2014


            Appeal from the Judgment of Sentence January 7, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0005578-2007


BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                                FILED AUGUST 05, 2014

        Appellant, Terrance Bishop, appeals from the January 7, 2014



                                                                          robation

was revoked and Appellant presented for resentencing.                 Additionally,

Counsel has filed a petition to withdraw together with an Anders Brief,

concluding the appeal is frivolous.1           After careful review, we affirm the

judgment of sentence and grant c

        We summarize the factual and procedural history of this case as

follows. On June 9, 2008, Appellant entered a guilty plea to two counts of

possession with intent to deliver a controlled substance (cocaine), 35 P.S.

§ 780-113(a)(30). On that same day, the trial court sentenced Appellant to
____________________________________________
1
    Anders v. California, 386 U.S. 738 (1967).
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a term of incarceration of 15 to 36 months on the first count, and a



serving his parole, Appellant was convicted of delivery of a controlled

substance (marijuana), 35 P.S. § 780-113(a)(30).2 A petition for revocation



October 23, 2013. At his Gagnon I hearing,3 on January 7, 2014, Appellant

stipulated to the allegations in the petition, waiving the necessity of a

Gagnon II hearing. N.T., 1/9/14, at 3. The trial court thereupon revoked



The Commonwealth requested imposition of a sentence of incarceration of

18 to 36 months.        Id. at 5-6.      Appellant argued for leniency due to his

family obligations to his ailing mother and his 13-year-old son, and due to

the time he already spent incarcerated as a result of the new charge and

parole violation. Id. at 8, 15-16. The trial court sentenced Appellant to 12



        Appellant filed no post-sentence motion.          On February 4, 2014,

Appellant filed a timely notice of appeal. The trial court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b).            In accordance with
____________________________________________
2
  Appellant was sentenced to a term of incarceration of 6 to 23 months on
the new charge. Additionally, Appellant was serving back time as a result of
the revocation of his parole on count one of his June 9, 2008 sentence at the
time of the instant revocation of his probation for count two.
3
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).


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Subsection (c)(4) of the Rule, in lieu of a concise statement, Counsel gave

notice of his intent to file an Anders brief.



representation together with an Anders brief.        Appellant has not filed a

                                                 Anders brief. In his Anders

brief, counsel raises the following issue for our review.

            [1.]   Whether    the    sentence   imposed    upon
                   [Appellant] for violating his probation was
                   harsh and excessive under the circumstances?

Anders Brief at 3.

                                  Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

              Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted).                                     Anders brief for

compliance with the requirements set forth by our Supreme Court in

Santiago.

                  [W]e hold that in the Anders brief that
            accompanies court-                       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)
                                                     he appeal is

            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.


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J-S41036-14


Santiago, supra at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

                                                                        Anders

brief to his client. Attending the brief must be a letter that advises the client

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

                                                                        Anders

        Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)




                                                         independent judgment

                                                           Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

      Instantly, we are satisfied that counsel has complied with the

requirements of Anders and Santiago. Counsel carefully summarized the

pertinent procedural history and made appropriate references to the record.

He acknowledged his own review of the record, articulated one issue that

could arguably support an appeal, but stated his conclusion that the appeal

is nevertheless frivolous. Further, he set forth the reasons upon which he

based that conclusion.     Counsel has also complied with the notification

requirements described in Millisock, supra.            Since receiving notice,


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Appellant has not filed any response.        We therefore proceed with our



behalf.

                   In considering an appeal from a sentence
            imposed following the revocation of probation, 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.    Revocation of a probation
            sentence is a matter committed to the sound

            will not be disturbed on appeal in the absence of an
            error of law or an abuse of discretion.

Commonwealth v. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (citation

omitted), affirmed, 44 A.3d 58 (Pa. 2012). Further, the scope of our review

following the imposition of a new sentence following revocation of probation

includes   challenges   to   the   discretionary   aspects   of   the   sentence.

Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en

banc).




discretionary aspects of the January 9, 2014 sentence.

discretionary aspects of a sentence must be considered a petition for



Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en

banc) (citation omitted), appeal denied, 75 A.3d 1281 (Pa. 2013).

                                                     y after
            this Court determines that there is a substantial

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J-S41036-14


           question that the sentence was not appropriate
                                          Commonwealth v.
           Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)].
           In determining whether a substantial question exists,
           this Court does not examine the merits of the
           sentencing claim. Commonwealth v. Tuladziecki,
           513 Pa. 508, 522 A.2d 17 (1987).


           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
                                            Commonwealth v.
           Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011).
           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.
           Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.
           Super. 2012).

Cartrette, supra at 1042.

           The determination of what constitutes a substantial
           question must be evaluated on a case-by-case basis.
           A substantial question exists only when the appellant
           advances a colorable argument that the sentencing

           specific provision of the Sentencing Code; or (2)
           contrary to the fundamental norms which underlie
           the sentencing process.

Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (internal

quotation marks and citations omitted), appeal denied, 63 A.3d 774 (Pa.

2013).

     Instantly, Appellant has not preserved his issue in a timely post-

sentence motion. We therefore look to the record to determine if Appellant

preserved his issue by raising his claim at the sentencing proceeding.


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During the sentencing proceeding, Appellant argued for leniency based on

the nature of his violation, the additional time already spent incarcerated,

his family obligations, and his efforts to reform. N.T., 1/7/14, at 8, 15-16.

In response to those arguments, the trial court entered a sentence of 12 to




                          Id. at 5-6, 19.   The trial court then asked if the

                                 Id. at 19.

there was no objection.    Id. at 19-20.    After being advised by counsel to

accept the sentence, Appellant indicated to the trial court that he had no

additional questions.   Id. at 20.   Accordingly, having failed to allege any

error at the time of sentencing and having filed no post-sentencing motion,

Appellant has waived his discretionary aspect of sentence issues on appeal.

Lamonda, supra; see also Commonwealth v. Malovich, 903 A.2d 1247,

1251 (Pa. Super. 20

sentence claims were waived where, although appellant argued mitigation at



imposition of sentence during the sentencing hearing or in a post-sentencing

motion).



counsel that the instant appeal is wholly frivolous.     We therefore grant




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J-S41036-14




sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




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