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    NON-PRECEDENTIAL DECISION                   - SEE SUPERIOR COURT I.O.P 65.37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

JEFFREY THOMAS BOJNOSKI

                     Appellant                                  No. 1930 MDA 2016

           Appeal from the Judgment of Sentence November 2, 2016
             in the Court of Common Pleas of Lackawanna County,
             Criminal Division, at No(s): CP-35-CR-0000867-2014,
              CP-35-CR-0001085-2016, CP-35-CR-0001211-2016

BEFORE:       BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                                  FILED AUGUST 01, 2017

        Jeffrey Thomas Bojnoski (Appellant) appeals from the judgment of

sentence which the trial court imposed after revoking Appellant's probation.

In addition, Appellant's counsel has filed            a   petition to withdraw and      a   brief

pursuant      to   Anders        v.     California,       386    U.S.    738     (1967),    and

Commonwealth v. Santiago, 978 A.2d 349                      (Pa. 2009).    Upon review, we

deny     counsel's    petition        without   prejudice,       and    remand    for   further

proceedings consistent with this memorandum.

        The trial court summarized the pertinent factual and procedural history

as follows.

              On August 30, 2016, in case no. 16-CR-1085, [Appellant]
        pled guilty to one count of unsworn falsification to authorities, in
        place of the original charge of failure to comply with registration
        of sexual offender requirements. This charge arose when
        [Appellant] changed residences but failed to inform sexual

*Retired Senior Judge assigned to the Superior Court.
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        offender registration authorities of this change. On October 5,
        2016, [Appellant] pled guilty to one count of harassment in case
        no. 16-CR-1211, and in exchange the other charges pending
        against [Appellant] were [nolle prossed]. These charges arose
        on April 16, 2016, when [Appellant] attacked and injured his
        girlfriend.

             On November 2, 2016, [Appellant] was sentenced in these
        two cases and resentenced in case no. 14-CR-867 (a prior case
        against [Appellant] for failure to provide accurate sexual
        offender registration information that had been replaced with a
        charge of providing a false statement to authorities when he pled
        guilty). The [trial] court noted that although [Appellant] was
        now expressing a desire to change his ways and do what is right,
        the court had sentenced [Appellant] in 2014 for simple assault,
        and that [Appellant] had coaxed out on that charge because he
        did not want to complete the programs he was in at the prison.
        The [trial] court also noted that [Appellant] provided his
        probation officer with an address for his home plan, but that
        three days later, he was found to be living at a different address.
        The court stated that [Appellant] talks a good game but he does
        not act in a way that indicates that he has any respect for the
        law. The court imposed a 6 to 12 month sentence in case no.
        14-CR-867, a 12 to 24 month sentence in case no. 16-CR-1085,
        and a 1.5 to 3 month sentence in case no. 16-CR-1211. His
        aggregate sentence was thus 19.5 to 39 months. The court
        ordered a drug and alcohol and mental health evaluation. The
        court noted that the sentence in 16-CR-1085 was in the
        aggravated range since [Appellant] committed the crime while
        he was on supervision and it was similar to a prior case against
        him of failing to provide the proper residence to authorities so
        that he certainly had to be aware of the obligation to provide a
        proper address to authorities. The court noted that the other
        sentences were within the standard range of the sentencing
        guidelines.

              On November 14, 2016 [Appellant] filed a motion for
        reconsideration of sentence which was denied on November 17,
        2016. On November 28, 2016, [Appellant] filed a [n]otice of
        [a]ppeal, and on December 6, 2016, th[e trial] court ordered
        [Appellant] to file a concise statement of the matters complained
        of on days appeal within 21 days pursuant to Pa.R.A.P. 1925(b).
        On December 15, 2016, [Appellant] filed a [s]tatement of
        [m]atters [c]omplained of on [a]ppeal.

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Trial Court Opinion, 1/17/2017, at 1-3 (citations omitted).

        In this Court, in lieu of   a   brief in support of Appellant's appeal, counsel

filed   both   an   Anders brief         and    a      petition to withdraw as counsel.

Accordingly, the following principles guide our review.

        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        copy of the Anders
                                                             a
        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). By contrast, if counsel's
        petition and brief satisfy Anders, we will then undertake our
        own review of the appeal to determine if it is wholly frivolous. If
        the appeal is frivolous, we will grant the withdrawal petition and
        affirm the judgment of sentence. However, if there are non -
        frivolous issues, we will deny the petition and remand for the
        filing of an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21                          (Pa. Super.   2007)

(citations omitted).

        Our Supreme Court has clarified portions of the Anders procedure:

        Accordingly, we hold that in 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

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        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.
        Based upon our examination of counsel's petition to withdraw and

Anders brief, we conclude that counsel          has substantially complied with the

technical     requirements    cited   supra.'    Once    "counsel     has   met these

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.'

Commonwealth v. Flowers, 113 A.3d 1246, 1249                        (Pa. Super. 2015)

(quoting Santiago, 978 A.2d at 354 n. 5).

        Pertinent to our disposition, there appears to be some confusion

regarding whether Appellant's sentences, and in particular the sentence at

docket number       CP-35-CR-0001085-2016          (Case      1085), fall within the

standard or aggravated range of Appellant's guidelines, or outside the

guidelines entirely.       Compare Anders Brief at 5-6 (stating that the

sentencing court imposed sentences in either the aggravated range or

outside the guideline range)     with Trial Court Opinion, 1/17/2017, at       2   ("The

court noted that the sentence in [Case 1085] was in the aggravated range[.]



1   Appellant has not responded to counsel's petition to withdraw.


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...   The court noted that the other sentences were within the standard range

of the sentencing guidelines.") (citations omitted).

         While the guidelines do not apply to Appellant's sentence at CP-35-CR-

0000867-2014,        a   sentence following the revocation of his probation, the

guidelines must be consulted when imposing sentences in Appellant's two

other cases. See Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.

Super. 2006) ("Sentencing [g]uidelines do not apply to sentences imposed

following    a   probation revocation"). See also     204 Pa. Code   §   303.1 ("The

court shall consider the sentencing guidelines in determining the appropriate

sentence for offenders convicted of, or pleading guilty or nolo contendere to,

felonies and misdemeanors.").

         Here, this Court is without     a    guilty plea transcript or sentencing

guideline form for Case 1085.2 From the little we can glean from the sparse

record, Appellant was sentenced on November 2, 2016, to one count of

unsworn falsification to authorities,     a   misdemeanor in the second degree.

18 Pa.C.S. § 4904(a)(1). Appellant received a sentence of 12 to 24 months'

incarceration.      At the time of his sentencing Appellant's prior record score

was two.         Thus, under the sentencing matrix the applicable standard



2 This is an additional basis for denying counsel's motion. "Without these
notes of testimony, [c]ounsel could not have fulfilled his duty to review the
record for any non -frivolous issues." Flowers, 113 A.3d at 1250. Upon
remand, prior to filing his advocate's brief, counsel must obtain the missing
transcript and ensure its inclusion in the certified record. Id. at 1251.


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guideline range was restorative sanctions -3, plus or minus three. Although

the sentencing court and Commonwealth contend that Appellant's sentence

at Case 1085 falls within the aggravated range of the guidelines, based on

the information afforded to this Court, we cannot reconcile this conclusion.

Based upon foregoing, it appears Appellant was sentenced well outside the

guideline range.

        If Appellant was sentenced outside the guideline range           and the

sentencing court failed to proffer reasons on the record for deviating from

the guidelines, Appellant's appeal would not be wholly frivolous.             See

Commonwealth v. Byrd, 657 A.2d 961            (Pa. Super. 1995).

        Due to these deficiencies, we deny without prejudice counsel's petition

to withdraw.       We remand this case and direct the trial court to supplement

the record with the pertinent information concerning Appellant's guilty plea

and sentencing guidelines within 30 days of the date of this memorandum.

Counsel is then directed to file within 30 days either an advocate's brief or

supplemental Anders brief and petition to withdraw.           The Commonwealth

shall have 30 days from the date that counsel files her brief in order to file   a


responsive brief.

        Petition   to   withdraw   as   counsel   denied.   Case   remanded   with

instructions. Panel jurisdiction retained.




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