J-S66028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
            v.                          :
                                        :
SUSAN MICHELLE PICKENS,                 :
                                        :
                       Appellant        :     No. 738 MDA 2014


      Appeal from the Judgment of Sentence Entered March 25, 2014,
          In the Court of Common Pleas of Lackawanna County,
            Criminal Division, at No. CP-35-CR-0000717-2011.

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED NOVEMBER 25, 2014

      Susan Michelle Pickens (“Appellant”) appeals from the judgment of

sentence of three to twelve months of incarceration imposed following the

revocation of her intermediate punishment sentence. In addition, Appellant’s

counsel has filed a petition to withdraw and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434

A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009). Upon review, we grant counsel’s petition to withdraw and affirm

the judgment of sentence.

      The trial court summarized the factual and procedural history of this

case as follows:

             On August 25, 2011, [Appellant] pled guilty to one count
      of driving under the influence of alcohol, second offense. At the
      guilty plea proceeding, [Appellant] admitted to operating a
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     vehicle when her blood alcohol content was .207%. She was
     sentenced that same date to a 5 year intermediate punishment
     sentence.

           On January 10, 2014, a capias for her arrest was issued
     due to violation of the conditions of her intermediate
     punishment. On March 25, 2014, a Gagnon II hearing was held
     and [Appellant] stipulated to the violations of her probation, and
     in particular, admitted using and testing positive for cocaine.
     Transcript of March 25, 2014 Gagnon II Hearing at 4. [The trial]
     court revoked [Appellant’s] intermediate punishment and
     sentenced her to 3 to 12 months of incarceration. Id. at 6. The
     court ordered that the 3 month to one year sentence would be
     followed by 4 years of probation, and that the conditions would
     include: not to consume any drugs or alcohol, to refrain from
     frequenting liquor serving establishments, to attend 90 AA
     meetings in 90 days followed by 3 AA meetings per week, to
     complete a drug and alcohol evaluation and follow all
     recommendations, and to be on the color system for 90 days
     upon parole. Id.

            On April 11, 2014 [Appellant] filed a motion for
     reconsideration which was denied on April 15, 2014. On April
     23, 2014, [Appellant] filed a Notice of Appeal, and on May 1,
     2014, [the trial] court ordered [Appellant] to file a concise
     statement of the matters complained of on appeal within 21 days
     pursuant to Pa.R.A.P. 1925(b). On May 16, 2014, [Appellant]
     filed a Statement of Matters Complained of on Appeal.

Trial Court Opinion, 6/20/14, 1–2.

     Preliminarily, we must resolve appellate counsel’s request to withdraw.

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

There are procedural and briefing requirements imposed upon an attorney

who seeks to withdraw on appeal.       These procedural mandates require

counsel to:




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      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 the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within her petition

to   withdraw,   counsel   averred   that    she   conducted   a   conscientious

examination of the record.    Following that review, counsel concluded that

the present appeal is wholly frivolous. Counsel sent Appellant a copy of the

Anders brief and petition to withdraw, as well as a letter, a copy of which is

included with the Anders brief. In the letter, counsel advised Appellant that

she could represent herself or that she could retain private counsel to

represent her. Petition, 7/31/14.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide 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 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).


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      Upon review, we conclude that counsel’s brief is compliant with

Santiago. It sets forth the factual and procedural history of this case, cites

to the record, and refers to issues that counsel arguably believes support the

appeal.    Anders Brief at 4-6.        Further, the brief sets forth counsel’s

conclusion that the appeal is frivolous, and it contains pertinent case

authority and counsel’s reasons for concluding that the appeal is frivolous.

Id. at 7-12.

      We are satisfied that counsel has met the requirements set forth in

Cartrette; therefore, we now address the issues raised in the Anders brief,

which are set forth below:

      A. Whether the sentence imposed was inappropriately harsh and
         excessive and an abuse of discretion?

      B. Whether the lower court failed to take into consideration
         Appellant’s rehabilitation needs when it imposed its sentence?

Anders Brief at 4.

      These issues challenge the sentence imposed as an abuse of the trial

court’s discretion. An appellant may raise a challenge to the discretionary

aspects of a sentence imposed following the revocation of intermediate

punishment, and this Court’s scope of review includes such challenges.

Cartrette, 83 A.3d at 1034.       However, 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). Rather,




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an appellant’s appeal should be considered to be a petition for allowance of

appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (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(E)1]; (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)).

     Whether a particular issue constitutes a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-

case basis.    Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).    As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the

1
   Pa.R.Crim.P. 708(E) reads as follows: “A motion to modify a sentence
imposed after a revocation shall be filed within 10 days of the date of
imposition. The filing of a motion to modify sentence will not toll the 30-day
appeal period.”

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reasons the sentencing court’s actions violated the sentencing code. Id. “A

substantial question will be found where the defendant advances a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citations omitted).

      Herein, the first three requirements of the four-part test are met;

Appellant brought an appropriate appeal, raised the challenge in her post-

sentence motion, and included in the appellate brief the necessary separate

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).     Therefore, we next determine whether

Appellant has raised a substantial question requiring us to review the

discretionary aspects of the sentence imposed by the trial court.

      In the Pa.R.A.P. 2119(f) statement before us, counsel cites cases

involving claims that a sentence was excessive or that the sentencing court

failed to place reasons for the sentence on the record. Anders Brief at 8–9.

However, the Rule 2119(f) statement fails to cite what particular provision of

the Sentencing Code or what specific fundamental norm Appellant’s sentence

allegedly violates. Moreover, counsel “recognizes that the sentence imposed

was within the Sentencing Guidelines for a DUI-BAC .16+; that [Appellant’s]

violation involved the use of cocaine. Thus, the instant appeal does not fall




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within the standards required for a review by the Court regarding the

discretionary aspect of her sentence.” Id. at 9. Nevertheless, we address

Appellant’s claims. See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.

Super. 2009) (citing Commonwealth v. Hernandez, 783 A.2d 784, 787

(Pa. Super. 2001) (concluding that Anders requires review of issues

otherwise waived on appeal)); see also Commonwealth v. Crump, 995

A.2d 1280, 1282 (Pa. Super. 2010) (“The imposition of a sentence of total

confinement after the revocation of probation for a technical violation, and

not a new criminal offense, implicates the ‘fundamental norms which

underlie the sentencing process.’”); Commonwealth v. Downing, 990

A.2d 788 (Pa. Super. 2010) (holding that failure to consider rehabilitative

needs and protection of society in fashioning sentence raises substantial

question).

     “In reviewing a challenge to the discretionary aspects of sentencing,

we evaluate the court’s decision under an abuse of discretion standard.”

Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011).              In

resentencing a defendant, the sentencing court has the authority to consider

the same sentencing alternatives that it had at the time of the original

sentencing proceeding. 42 Pa.C.S. § 9771(b); see Cartrette, 83 A.3d 1030

(citing 42 Pa.C.S. § 9771(b)); Commonwealth v. Phillip, 709 A.2d 920

(Pa. Super. 1998) (same).    Once intermediate punishment is revoked, a




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sentence of total confinement may be imposed if the conduct of the

defendant indicates the likelihood that she will commit another crime if she

is not imprisoned.     42 Pa.C.S. § 9771(c)(2).     A technical violation can

support a sentence of total confinement when such violation is flagrant and

indicates an inability to reform. Commonwealth v. Carver, 923 A.2d 495,

498 (Pa. Super. 2007); Commonwealth v. Ortega, 995 A.2d 879 (Pa.

Super. 2010).      “[T]his Court’s review of the discretionary aspects of a

sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and

(d).”   Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013)

(quoting Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super.

2009)).2    However, the sentencing guidelines do not apply to sentences



2
    Section 9781(c) reads:

        (c) Determination on appeal.—The appellate court shall
        vacate the sentence and remand the case to the sentencing
        court with instructions if it finds:

        (1) the sentencing court purported to sentence within the
        sentencing guidelines but applied the guidelines erroneously;

        (2) the sentencing court sentenced within the sentencing
        guidelines but the case involves circumstances where the
        application of the guidelines would be clearly unreasonable; or

        (3) the sentencing court sentenced outside the sentencing
        guidelines and the sentence is unreasonable.

        In all other cases the appellate court shall affirm the sentence
        imposed by the sentencing court.



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imposed following revocation of intermediate punishment. Phillip, 709 A.2d

at 921 (citing 204 Pa.Code § 303.1(b)).

     The sentencing court disposed of the proffered challenges as follows:

           [Appellant] asserts that the sentence was harsh and
     excessive and an abuse of discretion for a technical violation of
     probation [sic]. . . This court determined that an intermediate
     punishment sentence was no longer appropriate for [Appellant]
     since she had admitted to using cocaine while serving her
     intermediate punishment in this case. This court decided that
     intermediate punishment was not effective in rehabilitating her.
     The court thus imposed an appropriate and lawful sentence of
     incarceration.

           [Appellant] also asserts that the court failed to consider
     her rehabilitation needs in sentencing her. However, an
     allegation that the sentencing court “failed to consider” or “did
     not adequately” consider various factors is really a request that
     the Superior Court substitute its judgment for that of the lower
     court. Commonwealth v. Griffin, 804 A.2d 1 (Pa. Super. 2002).
     When a defendant does not argue that the sentencing court
     received incorrect information, but simply alleges that the lower
     court inappropriately applied the information, this is effectively a
     request for the Superior Court to substitute its judgment for that
     of the lower court. Id. at 9. This court considered everything in
     [Appellant’s] presentence investigation file, as well as the
     information provided by her attorney, including the factors that


42 Pa.C.S. § 9781(c). Pursuant to 42 Pa.C.S. § 9781(d)(1–4), in reviewing
the record, we consider:

     (1) The nature and circumstances of the offense and the history
     and characteristics of the defendant.

     (2) The opportunity of the sentencing court to observe the
     defendant, including any presentence investigation.

     (3) The findings upon which the sentence was based.

     (4) The guidelines promulgated by the commission.

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     the defendant claims the court did not consider. The court
     specifically ordered that [Appellant] undergo a drug and alcohol
     evaluation and follow all recommendations, refrain from
     consuming drugs or alcohol, and attend AA meetings upon her
     release. Because [Appellant] has not shown that there is a
     substantial question that the sentence imposed is not
     appropriate under the Sentencing Code or contrary to the
     fundamental norms underlying the sentencing process, the
     sentence is not inappropriate or excessive and the court has not
     abused its discretion.

Trial Court Opinion, 6/20/14, at 3–4.

     Upon review, we conclude that neither of Appellant’s sentencing

challenges warrants relief. As the Commonwealth points out:

     [Appellant] stipulated to violating one of the conditions [of her
     intermediate punishment] by using cocaine. . . [T]he sentencing
     guidelines do not apply to sentences imposed as a result of
     revocation of intermediate punishment      . . . [T]he court was
     authorized to impose a sentence of incarceration on Appellant
     because intermediate punishment was no longer a viable means
     of rehabilitation. The sentence did not excess the statutory
     maximum for [Appellant’s] DUI offense.

Commonwealth’s Brief at 1.       Additionally, the record belies Appellant’s

assertion that the sentencing court did not consider her rehabilitative needs.

Having heard Appellant stipulate to her drug use, the sentencing court

required Appellant to undergo a drug and alcohol evaluation, follow all

recommendations, refrain from consuming drugs or alcohol, and attend AA

meetings. N.T., 3/25/14, at 6; Trial Court Opinion, 6/20/14, at 4. Based on

the foregoing, we discern no abuse of the sentencing court’s discretion in

imposing the challenged sentence.




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      Additionally, following our independent review of the record, we

conclude that Appellant’s appeal is wholly frivolous, and we affirm the

judgment of sentence. Moreover, as we agree with counsel’s assessment of

the appeal, and because we conclude that counsel has satisfied the

requirements for withdrawal, we grant counsel’s petition to withdraw.

      Petition to withdraw granted.      Judgment of sentence affirmed.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014




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