J-S14016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES EDWARD BORTZ,

                            Appellant               No. 1262 MDA 2016


             Appeal from the Judgment of Sentence July 14, 2016
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0000617-2006


BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 12, 2017

       Appellant, James Edward Bortz, appeals from the judgment of

sentence entered on July 14, 2016, following the revocation of his probation.

Appellate counsel has filed a petition to withdraw his representation and a

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

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

withdrawal from representation on direct appeal.      After review, we grant

counsel’s petition to withdraw, and we affirm the judgment of sentence.

       The relevant facts of this case were set forth by the trial court as

follows:


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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                On May 8, 2006, Appellant James Bortz pled guilty to
        statutory sexual assault, a felony of the second degree, and
        corruption of minors, a misdemeanor of the first degree. On July
        5, 2006, the Honorable William S. Kieser sentenced [Appellant]
        to 8 months to 10 years’ incarceration in a state correctional
        facility for statutory sexual assault[1] and a consecutive term of
        two years’ probation for corruption of minors.[2] The focus at the
        sentencing hearing was getting [Appellant] sexual offender
        treatment, which he could receive in a state correctional facility
        but would not receive in the county prison. Unfortunately,
        [Appellant] failed or refused to complete sexual offender
        treatment, and he “maxed out” his state sentence.

              On July 14, 2016, [Appellant] came before the court for a
        probation violation hearing based on his failure to be processed
        into and complete a sexual offender treatment program. There
        was no dispute that [Appellant] did not complete the sexual
        offender treatment program while he was incarcerated in state
        prison or that he was not currently enrolled in such
        programming.

              [Appellant’s] counsel argued that his probation should not
        be revoked based on his failure to complete the treatment,
        especially since he already served 10 years in state prison as a
        result of that failure. Counsel also noted that, as a sexually
        violent predator,1 [Appellant] was required to complete monthly
        counseling. If he failed to complete his counseling while he was
        out on the street, not only would he be in violation of his
        probation, but he would also be subject to further criminal
        prosecution and face an additional 2½ to 5 years’ incarceration.
              1
                 [Appellant] was designated a sexually violent
              predator in a separate case, CP-41-CR-1906-2003.

             [Appellant’s] probation officer, Loretta Clark, noted that
        [Appellant] did not have a residence to be released to and he
        chose to max out his state prison sentence instead of attending
        any of the programs. Ms. Clark also noted that she did not think
____________________________________________


1
    18 Pa.C.S. § 3122.1(a).
2
    18 Pa.C.S. § 6301(a)(1).



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      [Appellant] would comply with any kind of counseling out on the
      street since he had the option to be released from jail years ago
      if he complied but he still chose not to do so.

            [Appellant] stated that he had a place at the American
      Rescue Workers and he asked to be given a second chance to try
      to do the individual counseling on his own. Ms. Clark, however,
      noted that the American Rescue Workers do not take sexually
      violent predators.

            The court found [Appellant] in violation of his probation
      and re-sentenced him to serve 6 months to 2 years’
      incarceration in a state correctional institution. [Appellant] filed a
      motion for reconsideration of sentence, which the court
      summarily denied.

Trial Court Opinion, 11/8/16, at 1-2.

      Appellant filed a timely appeal on July 28, 2016, and on August 4,

2016, the trial court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Appellant filed a

timely Pa.R.A.P. 1925(b) statement on August 17, 2016, and on November

8, 2016, the trial court filed its Pa.R.A.P. 1925(a) opinion.

      Before we address the questions raised on appeal, we must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc); Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa. Super. 2005) (“When faced with a purported Anders

brief, this Court may not review the merits of the underlying issues without

first passing on the request to withdraw.”).




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      There are procedural and briefing requirements imposed upon an

attorney who seeks to withdraw on appeal.        The procedural mandates are

that counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to [his client]; and 3) advise [his client] that he or
      she has the right to retain private counsel or raise additional
      arguments that the [client] deems worthy of the court’s
      attention.

Cartrette, 83 A.3d at 1032 (citation omitted).

      In addition, our Supreme Court stated that an Anders brief 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.       The Supreme Court reaffirmed the principle

that indigent appellants “generally have a right to counsel on a first appeal,

[but] . . . this right does not include the right to bring a frivolous appeal and,

concomitantly, does not include the right to counsel for bringing such an

appeal.” Id. at 357 (citation omitted).




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      Appellant’s counsel has complied with the first prong of Santiago by

providing a summary of the procedural history in the Anders brief. He has

satisfied the second prong by referring to any evidence in the record that he

believes arguably supports the appeal. Counsel also set forth his conclusion

that the appeal is frivolous and stated his reasons for that conclusion, with

appropriate support. Moreover, counsel filed a separate motion to withdraw

as counsel, wherein he stated that he examined the record and concluded

that the appeal is wholly frivolous.       Further, counsel has attempted to

identify   and   develop   any   issues   in   support   of   Appellant’s   appeal.

Additionally, counsel sent a letter to Appellant, and he attached a copy of

the letter to his Anders Brief.    Counsel stated that he informed Appellant

that he has filed a motion to withdraw and an Anders brief, and he apprised

Appellant of his rights in light of the motion to withdraw as counsel.

Appellant has not filed any response to counsel’s motion to withdraw. Thus,

we conclude that the procedural and briefing requirements of Anders and

Santiago for withdrawal have been met.           “Therefore, we now have the

responsibility 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. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016)

(citation and internal quotation marks omitted).

      In the Anders brief, counsel presents the following issues for our

review:


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      I. Whether an application to withdraw as counsel should be
      granted where counsel has investigated the possible grounds for
      appeal and finds the appeal frivolous?

      II. Did the trial court abuse its discretion when it denied
      [Appellant’s] motion for a reconsideration of his probation
      violation sentence when it failed to take into consideration
      [Appellant’s] rehabilitative needs, since [Appellant] had already
      served a ten year sentence and would be unable to complete the
      sexual offender rehabilitation program if he returned to state
      prison?

Anders Brief at 10.     Appellant’s first issue concerns counsel’s request to

withdraw, and it will be addressed concurrently with Appellant’s second issue

challenging the discretionary aspects of his sentence.

      As this Court clarified in Cartrette, our scope of review following the

revocation of probation is not limited solely 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.   Cartrette, 83 A.3d at 1033-1034.         Rather, it also

includes challenges to the discretionary aspects of the sentence imposed.

Specifically, we unequivocally held that “this Court’s scope of review in an

appeal from a revocation sentencing includes discretionary sentencing

challenges.” Id. at 1034. Further, as we have long held, the imposition of

sentence following the revocation of probation is vested within the sound

discretion of the trial court, which, absent an abuse of that discretion, will

not be disturbed on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913

(Pa. Super. 2000).


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     It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).    Instead, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.   Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

     As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

           [W]e conduct a four-part analysis to determine: (1)
           whether appellant has filed a timely notice of appeal,
           see Pa.R.A.P. 902 and 903; (2) whether the issue
           was properly preserved at sentencing or in a motion
           to reconsider and modify sentence, see Pa.R.Crim.P.
           [708]; (3) whether appellant’s brief has a fatal
           defect, Pa.R.A.P. 2119(f); and (4) whether there is a
           substantial question that the sentence appealed from
           is not appropriate under the Sentencing Code, 42
           Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

     Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects

of a sentence are waived if they are not raised at the sentencing hearing or

in a motion to modify the sentence imposed.       Moury, 992 A.2d at 170


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(citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)).            In

addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must

be filed within ten days of the imposition of sentence following the

revocation of probation. Pa.R.Crim.P. 708(D). As the comment to Rule 708

explains:

     Issues properly preserved at the sentencing proceeding need
     not, but may, be raised again in a motion to modify sentence in
     order to preserve them for appeal. In deciding whether to move
     to modify sentence, counsel must carefully consider whether the
     record created at the sentencing proceeding is adequate for
     appellate review of the issues, or the issues may be waived.

Pa.R.Crim.P. 708 cmt.     Thus, an objection to a discretionary aspect of a

sentence is waived if not raised in a post-sentence motion or during the

sentencing proceedings.    See Commonwealth v. Parker, 847 A.2d 745

(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was

waived because appellant did not object at sentencing hearing or file post-

sentence motion).

     In the instant case, Appellant filed a timely appeal, the issue was

properly preserved in his post-sentence motion, and the Anders brief

contains a concise statement of the reasons relied upon for allowance of

appeal with respect to the discretionary aspects of a sentence pursuant to

Pa.R.A.P. 2119(f). Accordingly, we must determine whether Appellant has

raised a substantial question that the sentence is not appropriate under 42

Pa.C.S. § 9781(b). Moury, 992 A.2d at 170.




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        Here, we conclude that Appellant’s challenge to the imposition of his

sentence as excessive, together with his claim that the trial court failed to

consider his rehabilitative needs,3 presents a substantial question. See

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015)

(excessive sentence claim, in conjunction with assertion that court failed to

consider mitigating factors, raises a substantial question).4 Accordingly, we

address the merits of Appellant’s claim.

        As stated above, the conviction at issue is for corruption of a minor, a

misdemeanor of the first degree. After the revocation of probation, the trial

court imposed a standard-range sentence under 204 Pa. Code § 303.16 of

six to twenty-four months of incarceration. Appellant provides no basis upon

which we can conclude the trial court abused its discretion in this regard,

and we deem Appellant’s claim of excessiveness specious.         Moreover, and
____________________________________________


3
    Anders Brief at 14, 18.
4
  Despite concluding that the appellant raised a substantial question, we
noted in Johnson as follows:

        This Court has offered “less than a model of clarity and
        consistency” in determining whether this particular issue raises a
        substantial question. See Commonwealth v. Dodge, 77 A.3d
        1263, 1272 n.8 (Pa. Super. 2013); see also Commonwealth v.
        Seagraves, 103 A.3d 839, 841-842 (Pa. Super. 2014).
        Nevertheless, as the Dodge Court stated, “unless an en banc
        panel of this Court or our Supreme Court overturns these
        decisions, we are bound to follow them.” Dodge, 77 A.3d at
        1273.

Johnson, 125 A.3d at 826 n.2.



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contrary to Appellant’s argument, the trial court thoroughly considered

Appellant’s rehabilitative needs.    N.T., 7/14/16, at 7-8.     The trial court

discussed Appellant’s designation as a sexually violent predator, the need for

sex-offender treatment in a state correctional facility, previous refusals to

participate in treatment, and his opportunities to be released on parole and

re-enter society. Id. Appellant’s claims that the trial court failed to consider

his rehabilitative needs is meritless.   For these reasons, we conclude that

Appellant is entitled to no relief on appeal.

      We have independently reviewed the record in order to determine if

counsel’s assessment about the frivolous nature of the present appeal is

correct. Tukhi, 149 A.3d at 886; see also Commonwealth v. Flowers,

113 A.3d 1246, 1250 (Pa. Super. 2015) (after determining that counsel has

satisfied the technical requirements of Anders and Santiago, this Court

must conduct an independent review of the record to determine if there are

additional, non-frivolous issues overlooked by counsel). After review of the

issues raised by counsel and our independent review of the record, we

conclude that an appeal in this matter is frivolous.    Accordingly, we grant

counsel’s petition to withdraw and affirm the judgment of sentence.




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     Petition to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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