J-S48040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    THOMAS GEBHARDT                            :
                                               :
                       Appellant               :     No. 125 EDA 2018


          Appeal from the Judgment of Sentence November 29, 2017
               in the Court of Common Pleas of Lehigh County
             Criminal Division at No.: CP-39-CR-0000433-2016


BEFORE:      DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                             FILED OCTOBER 30, 2018

        Appellant, Thomas Gebhardt, appeals from the judgment of sentence

imposed following his conceded violation of conditions of his parole. Appellant

challenges the court’s imposition of a consecutive sentence instead of a

concurrent one. Counsel has filed an Anders1 brief, and a petition to withdraw

from representation. Counsel’s petition to withdraw is granted. Judgment of

sentence affirmed.

        The underlying facts of this case are not in dispute. Appellant conceded

that he violated the conditions of parole by, among other things, committing




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1   Anders v. California, 386 U.S. 738 (1967).


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* Retired Senior Judge assigned to the Superior Court.
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acts which resulted in his arrest on May 5, 2017.     (See N.T. Gagnon II

Hearing, 11/29/17, at 2).

     On appeal, the Anders brief challenges the discretionary aspects of his

sentence.   Specifically, consistent with Appellant’s own statements at the

hearing, and the argument of counsel, the Anders brief challenges the trial

court’s decision to make his new sentence consecutive to a previously imposed

sentence in an unrelated matter.

     At the hearing, counsel for Appellant asked the court to sentence him

concurrently to make him eligible for parole at the same time that he was

scheduled to become eligible on an unrelated felony sentence. (See N.T.

Hearing, at 7; see also Anders Brief, at 9).

     Appellant also wanted to serve his sentences in county prison.       He

blamed his numerous legal problems on drug addiction.          He asked for

rehabilitative treatment, claiming no one had ever given him that chance.

(See N.T. Gagnon II Hearing, 11/29/17, at 2).

     The trial court disputed Appellant’s claim. (“Do you know why that is?

Because you blew off your Probation Officer for about six months. That’s why

you haven’t had treatment.”). (See id. at 8). The court revoked Appellant’s

parole, and resentenced him to serve the balance of the sentence previously

imposed, consecutive to his sentence at Case No. 2954/2017. (See id. at

9). The court declined to make the sentence concurrent, explaining “If I run




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it concurrently there is no consequence for you for this case that I put you on

supervision for.” (Id.).

       Nevertheless, Appellant was made eligible for parole after serving one-

third of his sentence. (See id.). Appellant was also RRRI eligible. (See id.

at 11).

       Appellant filed a notice of appeal, on December 21, 2017.2 Counsel filed

a petition to withdraw on March 27, 2018. Counsel also filed an Anders brief.

       The Anders brief raises two questions for our review:

             A. Whether the [trial] court abused its sentencing discretion
       when, after determination that [Appellant] had violated his
       probation, the court sentenced him to a consecutive term of
       imprisonment in a state correctional institution?

             B. May appointed counsel be permitted to withdraw after a
       conscientious review of the issues and the facts pursuant to the
       Anders case?

(Anders Brief, at 7) (unnecessary capitalization omitted).

       It is well-settled that “[w]hen considering an Anders brief, this Court

may not review the merits of the underlying issues without first passing on

the request to withdraw.” Commonwealth v. Ferguson, 761 A.2d 613, 616




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2 There is no indication in the record that counsel properly preserved the
sentencing issue at the hearing or within ten days of imposition. See
Pa.R.Crim.P. 708(E). We could find the issue waived on that basis alone.
However, in the interests of justice and judicial economy, we will address
Appellant’s sentencing issue, as raised in this appeal. Appellant filed a court-
ordered statement of errors complained of on appeal, on January 24, 2018.
The trial court filed its opinion on January 29, 2018. See Pa.R.A.P. 1925.

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(Pa. Super. 2000) (citation omitted). Therefore, we will address the second

question in the Anders brief first. Our Supreme Court has determined that:

        [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).

        Here, counsel notes that he conducted a review of the record, and

determined that an appeal would be wholly frivolous.             (See Petition to

Withdraw as Counsel, 3/27/18). In addition, counsel has provided this Court

with an Anders brief discussing the issue that could support an appeal.

Finally, counsel states that he forwarded to Appellant a copy of the brief and

advised him of his rights to raise issues himself or retain other counsel.3 (See

letter of Michael E. Brunnabend, Esq. to Thomas Gebhardt, 3/27/18).

        Accordingly, on independent review, we conclude that counsel has

substantially complied with the requirements of Anders and Santiago to

withdraw as counsel. He has filed a petition to withdraw and an Anders brief,

together with accompanying documentation, and provided a copy of the brief

to Appellant along with notice of his right to raise any issues he has on his



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3   Appellant has not responded to counsel’s petition to withdraw.

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own, or to retain private counsel. Therefore, we will proceed to evaluate the

record independently in order to determine whether the appeal is in fact

frivolous.

      In the first question of the Anders brief, counsel raises the issue of the

discretionary aspects of Appellant’s sentence. (See Anders Brief, at 9).

      It is well-settled that appeals of discretionary aspects of a sentence are

not reviewable as a matter of right. See Commonwealth v. McNear, 852

A.2d 401, 407 (Pa. Super. 2004). Before a challenge to the sentence will be

heard on the merits, an appellant, in order to invoke the Court’s jurisdiction,

must set forth in his brief a separate and concise statement of reasons relied

upon in support of his appeal.           See Pa.R.A.P. 2119(f); see also

Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa. Super. 2003), appeal

denied, 844 A.2d 551 (Pa. 2004).

      Where the appellant’s Rule 2119(f) statement sufficiently articulates the

manner in which the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process, such a statement will

be deemed adequate to raise a substantial question so as to permit a grant of

allowance of appeal of the discretionary aspects of the sentence.          See

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002) (plurality).

      Here, counsel has included in his Anders brief a statement of reasons

relied upon in support of the request for appeal, as required by Rule 2119.


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(See Anders Brief, at 10).       Accordingly, we will review the statement to

determine whether Appellant has raised a substantial question as to the

discretionary aspects of his sentence.

      The Rule 2119(f) statement in the Anders brief contends that the

consecutive sentence imposed was not justified or supported “in any basis of

law or fact.” (Id.). However, aside from an expressed preference for county

prison instead of a state correctional institution, Appellant offers no support

in either law or fact for his assertion of trial court error and abuse of discretion.

(See id.). On careful review, we conclude that Appellant’s claim does not

present a substantial question for our review.

             Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010),

appeal denied, 14 A.3d 825 (Pa. 2011) (quoting Commonwealth v.

Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003).

      When a sentence is within the statutory limits, this Court must review

each excessiveness claim on a case-by-case basis. In order for an appellant

raising such a claim to state a substantial question, he must “sufficiently

articulate[ ] the manner in which the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

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particular fundamental norm underlying the sentencing process.”4      Mouzon,

supra at 627.

       Here, Appellant’s Rule 2119(f) statement fails to identify any provision

of the Sentencing Code which the trial court violated or to set forth any

fundamental norm of the sentencing process that the trial court purportedly

violated. Thus Appellant has failed to raise a substantial question that his

sentence was excessive. Consequently, a review of the merits of his challenge

to discretionary aspects of his sentence is unwarranted.

       On independent review, we find no other non-frivolous issues, which

would warrant a review of their merits. Accordingly, the petition for leave to

withdraw as counsel is granted, and the trial court’s judgment of sentence is

affirmed.

       Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.




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4An appellant’s contention that the trial court did not adequately consider a
mitigating circumstance when imposing sentence does not raise a substantial
question sufficient to justify appellate review of the merits of such claim. See
Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999), appeal
denied, 747 A.2d 366 (Pa. 1999).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/18




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