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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

MONTRAIL MARCO TALFORD

                            Appellant                        No. 1207 EDA 2015


             Appeal from the Judgment of Sentence March 23, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003728-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                                   FILED MARCH 04, 2016

        Montrail Marco Talford appeals from the judgment of sentence

imposed in the Court of Common Pleas of Delaware County following a

probation/parole revocation hearing.                 Counsel also seeks to withdraw

pursuant to the dictates of Anders v. California, 386 U.S. 738 (1967),

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

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Upon review,

we grant counsel’s petition to withdraw and affirm Talford’s judgment of

sentence.

        On August 6, 2012, Talford pled guilty to three counts of possession

with intent to deliver a controlled substance (PWID).1             The court imposed
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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concurrent sentences of 6 to 23 months’, 9 to 23 months’ and 11½ to 23

months’ incarceration followed by two years of probation.

        On January 18, 2014, while on release, Talford was arrested for PWID.

He was convicted of this offense on October 22, 2014, and was sentenced to

18 to 36 months’ incarceration.

        Following a Gagnon II2 hearing on March 23, 2015, the court

sentenced Talford to three concurrent sentences of 410 days’ incarceration

for the parole violations and a concurrent sentence of one to two years’

incarceration on the probation violation. The court ordered the sentences to

be served consecutively to the sentence for Talford’s 2014 conviction.

        Counsel filed a petition to withdraw on April 9, 2015, which the court

granted on April 20, 2015. On April 22, 2015, Talford filed a timely pro se

notice of appeal.         Thereafter, the Public Defender began representing

Talford. On July 28, 2015, following the grant of an extension of time to file

a statement of errors complained of on appeal, counsel filed a statement of

intent to file an Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4).

The trial court filed its Rule 1925(a) opinion on July 29, 2015.

        On December 16, 2015, Talford’s counsel filed an Anders brief.

“When faced with a purported Anders brief, this Court may not review the
                       _______________________
(Footnote Continued)
1
    35 P.S. § 780-113(30).
2
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).




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

withdraw.”     Commonwealth v. Rojas, 847 A.2d 638, 639 (Pa. Super.

2005).      Furthermore, counsel must comply with certain mandates when

seeking to withdraw pursuant to Anders, Santiago and McClendon. These

mandates are not overly burdensome and have been summarized 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 worthy of this Court’s attention.

           If counsel does not fulfill the aforesaid technical
           requirements of Anders, this Court will deny the petition
           to withdraw and remand the case with appropriate
           instructions (e.g., directing counsel either to comply with
           Anders or file an advocate’s brief on Appellant’s behalf).

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations

omitted).

      Here, counsel has provided the facts and procedural history of the

case, and avers that, after a thorough review of the record, he finds the

appeal to be wholly frivolous, and states his reasons for this conclusion.

Counsel provided a copy of the petition to withdraw and the Anders brief to

Talford.    Counsel has also provided a copy of a letter to Talford, dated




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December 17, 2015, informing him of his right to submit a brief to this Court

or to hire an attorney to do so.

      Once counsel has satisfied the above requirements, this Court

conducts its own review of the proceedings and renders an independent

judgment    as   to   whether   the   appeal   is,   in   fact,   wholly   frivolous.

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

      In his Anders brief, the sole issue of arguable merit raised by counsel

is “[w]hether the judgment of sentence imposed herein should be vacated

since it was unduly harsh and excessive under the circumstances of this

case.” Anders Brief, at 3.

      Talford filed a timely notice of appeal and preserved the issue during

the revocation hearing.      However, the Anders brief does not include a

concise statement of reasons relied upon for allowance of appeal with

respect to the discretionary aspects of sentence, as required by Pa.R.A.P.

2119(f). The Commonwealth has not objected to this omission. It is well-

settled that in the absence of objection from the Commonwealth, this Court

may ignore the omission of such statement and proceed to determine if the

appellant has raised a substantial question.         Commonwealth v. Kiesel,

854 A.2d 530, 533 (Pa. 2004).

      This Court has held that a challenge to an unduly excessive sentence

together with a claim that the court failed to consider an appellant’s

rehabilitative needs upon fashioning its sentence raises a substantial

question.   Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.

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2015) (en banc). Accordingly, we will address Talford’s claim that the court

should have imposed a claim of “full back time with immediate parole along

with mandates for substance abuse treatment, applications for employment

and/or community services, and intensive supervision.” Anders Brief, at 7-

8.

     Section 9771 of the Sentencing Code, 42 Pa.C.S. § 9771, which

governs modification or revocation of probation orders, provides:

        (a)   General Rule. –     The court may at any time
              terminate continued supervision or lessen or increase
              the conditions upon which an order of probation has
              been imposed.

        (b)   Revocation. –        The court may revoke an order
              of probation upon proof of the violation of specified
              conditions of the probation. Upon revocation the
              sentencing alternatives available to the court shall be
              the same as were available at the time of initial
              sentencing, due consideration being given to the
              time spent serving the order of probation.

        (c)   Limitation on sentence of total confinement. –
              The 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.

42 Pa.C.S. § 9771.

     The imposition of sentence following revocation of probation is vested

within the sound discretion of the trial court, which, absent abuse of that

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discretion, will not be disturbed on appeal. Commonwealth v. Sierra, 752

A.2d. 910, 914 (Pa. Super. 2000). In a revocation of probation proceeding,

“a sentencing court need not undertake a lengthy discourse for its reasons

for imposing a sentence or specifically reference the statutes in question.”

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).             Moreover, a

revocation court is under no obligation to order a presentence report for a

defendant who has already undergone formal sentencing and consideration

of all relevant information regarding his crime, character and background.

Commonwealth v. Fish, 752 A.2d 921 (Pa. Super. 2000).

      At the hearing, George Buckley of Adult Probation and Parole Services

testified that while Talford was on release from his sentences for delivery of

crack cocaine, he was arrested for delivery of heroin.       Buckley further

testified that although he only supervised Talford for a short period of time,

Talford missed an appointment, screened positive for marijuana, and never

notified him of his new arrest. He noted that Talford had failed to pay court

costs, fined and supervision fees.     Furthermore, under the Sentencing

Guidelines, Talford is a Level 4 offender, with the highest possible prior

record score of 5. N.T. Gagnon II Hearing, 3/23/15, at 5. Although the

court recognized that Talford was making good use of his time in state

prison by participating in programs and scheduling to take his GED test, it

imposed the sentence recommended by Adult Probation and Parole Services.

Id. at 7.




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       Talford has failed to establish that the court abused its discretion in

imposing an aggregate sentence of 410 days’ imprisonment.        Accordingly,

we affirm the judgment of sentence.3

       Judgment of sentence affirmed. Motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




____________________________________________


3
  Pursuant to the dictates of Commonwealth v. Flowers, 113 A.3d 1246
(Pa. Super. 2015), we have conducted an independent review of the record.
We discern no non-frivolous issues overlooked by counsel.



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