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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
  PENNSYLVANIA                           :        PENNSYLVANIA
                                         :
                    Appellee             :
                                         :
              v.                         :
                                         :
  MICHAEL BAPTISTE JR.                   :
                                         :       No. 2856 EDA 2017
                    Appellant


            Appeal from the Judgment of Sentence July 31, 2017
             in the Court of Common Pleas of Delaware County
             Criminal Division at No.: CP-23-CR-0005917-2013



 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellee             :
              v.                         :
                                         :
 MICHAEL BAPTISTE JR.                    :
                                         :
                   Appellant             :
                                         :       No. 2857 EDA 2017


            Appeal from the Judgment of Sentence July 31, 2017
             in the Court of Common Pleas of Delaware County
             Criminal Division at No.: CP-23-CR-0005913-2013


BEFORE:    SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                              FILED JUNE 26, 2018

     Appellant, Michael Baptiste, Jr., appeals from the judgments of sentence

imposed on July 31, 2017 after revocation of his probation and parole at trial




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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court Case Nos. 5917-2013 and 5913-2013.1           Appointed counsel has filed

applications for leave to withdraw as counsel in both cases pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We grant counsel’s applications to withdraw and affirm

Appellant’s judgments of sentence.

        We take the following facts and procedural history from the trial court’s

September 27, 2017 opinion and our independent review of the certified

record.    On November 14, 2013, Appellant pleaded guilty to robbery and

conspiracy to commit robbery at Case No. 5917-2013, and was sentenced to

serve not less than eleven and one-half nor more than twenty-three months

of imprisonment, and a consecutive term of four years of probation. On that

same date, he pleaded guilty to simple assault at Case No. 5913-2013, and

was sentenced to two years of probation concurrent to the sentence imposed

at Case No. 5917-2013.

        On July 31, 2017, at a Gagnon II2 hearing, Appellant stipulated to

violating his probation at Case No. 5913-2013, and his probation and parole

at Case No. 5917-2013, because of a new criminal conviction for persons not


____________________________________________


1 These consecutively listed appeals arise from the same set of facts and raise
the same challenge to the judgment of sentence—both complain that if the
sentence in both cases were aggregated, it is excessive. Furthermore, counsel
seeks leave to withdraw his appearance in both cases raising the same
argument and issues in both. Therefore, we sua sponte consolidate these
appeals for this disposition.

2   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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to possess a firearm and receiving stolen property.          (See N.T. Hearing,

7/31/17, at 3).

       At Case No. 5917-2013, for the robbery conviction at count three, the

trial court found Appellant in violation of his parole, revoked his parole and

remanded him to serve the balance of his sentence, and granted immediate

parole; on the conspiracy conviction at count eleven, the trial court revoked

Appellant’s probation and sentenced him to not less than two nor more than

four years of incarceration.         At Case No. 5913-2013, the simple assault

conviction, the trial court revoked Appellant’s probation and imposed a

sentence of not less than twelve nor more than twenty-four months of

imprisonment.       The court imposed the sentence at Case No. 5913-2013

concurrently with the one at 5917-2013, thus the aggregate sentence for both

cases was not less than thirty-five and a half, nor more than seventy-one

months of incarceration.3         Appellant filed timely notices of appeal.4   On

January 24, 2018, counsel filed petitions to withdraw and Anders briefs on

the basis that the appeal is wholly frivolous.5 Appellant has not responded.
____________________________________________


3 Notably, the court also imposed the sentences concurrent to the sentence
for the new offense at case No. 2492-2016.

4 On September 25, 2017, counsel filed a statement that he intended to file
an Anders brief. See Pa.R.A.P. 1925(c)(4). The trial court filed a statement
in lieu of an opinion on September 27, 2017. See Pa.R.A.P. 1925(a).

5 The applications to withdraw and Anders briefs submitted in Case Nos.
5917-2013 and 5913-2013 are substantially similar and assert the same
arguments. Thus, for ease of disposition, we refer to the Anders brief
singularly throughout this decision, and reference any relevant differences in
footnotes.

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      The standard of review for an Anders brief is well-settled.

      Court-appointed counsel who seek to withdraw from representing
      an appellant on direct appeal on the basis that the appeal is
      frivolous 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) file a brief referring to anything
            that arguably might support the appeal but which
            does not resemble a “no-merit” letter or amicus curiae
            brief; and (3) furnish a copy of the brief to the
            defendant and advise the defendant of his or her right
            to retain new counsel or raise any additional points
            that he or she deems worthy of the court’s attention.

            [T]his Court may not review the merits of the underlying
      issues without first passing on the request to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations

and quotation marks omitted).         Further, our Supreme Court ruled in

Santiago, supra, that Anders briefs must contain “a discussion of counsel’s

reasons for believing that the client’s appeal is frivolous[.]” Santiago, supra

at 360.

      Here, counsel’s Anders briefs and applications to withdraw substantially

comply with the applicable technical requirements and demonstrate that he

has made “a conscientious examination of the record [and] determined that

the appeal[s] would be frivolous[.]”      Lilley, supra at 997.          The record

establishes that counsel served Appellant with a copy of the Anders briefs

and applications to withdraw, and a letter of notice, which advised Appellant

of his right to retain new counsel or to proceed pro se and raise additional



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issues to this Court. Further, the applications and briefs cite “to anything that

arguably might support the appeal[.]”            Id. (citation omitted); (see also

Anders Brief, at 3-7). As noted by our Supreme Court in Santiago, the fact

that some of counsel’s statements arguably support the frivolity of the appeal

does not violate the requirements of Anders. See Santiago, supra at 360-

61. Accordingly, we conclude that counsel complied with Anders’ technical

requirements. See Lilley, supra at 997.

       Having concluded that counsel’s applications and briefs substantially

comply with the technical Anders requirements, we must “conduct [our] own

review of the trial court’s proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.” Id. at 998 (citation and

quotation marks omitted).

       The Anders brief raises one question for our review: “Whether the new

sentence imposed upon [Appellant] is harsh and excessive where, when

aggregated with the sentence imposed in the case docketed at CP-23-CR-

0005917-2013 (2856 EDA 2017), it required him to serve another 2 to 4

years[’] imprisonment?” (Anders Brief, at 2).6




____________________________________________


6 The Anders brief for Case No. 5917-2013 poses a substantially similar
question: “Whether the new sentence imposed upon [Appellant] is harsh and
excessive where, when aggregated with the sentence imposed in the case
docketed at CP-23-CR-0005913-2013 (2857 EDA 2017), it required him to
serve another 2 to 4 years[’] imprisonment?” (Anders Brief, at 2).


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     The issue raised challenges the discretionary aspects of Appellant’s

sentences.

           [T]here is no absolute right to appeal when challenging the
     discretionary aspect of a sentence.       Rather, an [a]ppeal is
     permitted only after this Court determines that there is a
     substantial question that the sentence was not appropriate under
     the sentencing code. . . .

           In addition, issues challenging the discretionary aspects of
     a sentence must be raised in a post-sentence motion or by
     presenting the claim to the trial court during the sentencing
     proceedings. Absent such efforts, an objection to a discretionary
     aspect of a sentence is waived. Furthermore, a defendant is
     required   to    preserve   the    issue   in   a   court-ordered
     Pa.R.A.P.1925(b) concise statement and a Pa.R.A.P. 2119(f)
     statement.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)

(citations and quotation marks omitted).

     Here, Appellant did not challenge the discretionary aspects of his

sentence in a post-sentence motion, or present his claim to the trial court.

Therefore, he has waived his challenge. See id.

     “Nonetheless, Anders requires that we examine the issues to determine

their merit. Therefore, in order to rule upon counsel’s request to withdraw,

we must examine the merits of the issue Appellant seeks to raise.”

Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001); see

Lilley, supra at 998 (“Nevertheless, in light of [c]ounsel’s petition to

withdraw, we address [a]ppellant’s contention.”) (citation omitted).

     Our standard of review of an appeal from a sentence imposed following

the revocation of probation is well-settled:      “Revocation of a probation



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sentence is a matter committed to the sound discretion of the trial court and

that court’s decision will not be disturbed on appeal in the absence of an error

of law or an abuse of discretion.” Commonwealth v. Colon, 102 A.3d 1033,

1041 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015) (citation

omitted). Additionally, “upon revocation [of probation] . . . the trial court is

limited only by the maximum sentence that it could have imposed originally

at the time of the probationary sentence.” Commonwealth v. Infante, 63

A.3d 358, 365 (Pa. Super. 2013) (internal quotation marks and citations

omitted).

      Here, the record reveals that during his Gagnon II hearing on July 31,

2017, Appellant admitted that he violated his probation and parole by being

convicted of another offense. (See N.T. Hearing, at 3). At sentencing, the

court explained that Appellant was originally convicted of a violent felony, and

his violation involved a gun. (See id. at 5). The court observed that it was

being rather generous in imposing the recommended sentence, which resulted

in a new term of imprisonment of not less than two nor more than four years.

(See id. at 6-7).

      Upon review, we conclude that the trial court did not abuse its discretion

in sentencing Appellant to an aggregate term of imprisonment of not less than

two nor more than four years his probation and parole violations in two cases,

where the underlying offenses involved violence, and the violation involved a

firearm. (See id. at 5-6).   Furthermore, we note that the sentence imposed




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was below the maximum sentence that the court could have imposed at

Appellant’s initial sentencing. See Infante, supra at 365.

         Therefore, we discern no error of law or abuse of discretion. See Colon,

supra at 1041; Infante, supra at 365. Accordingly, Appellant’s issue does

not merit relief. Furthermore, after our independent review of the record as

required by Anders and Santiago, we conclude that no non-frivolous issues

exist.

         Applications to withdraw granted. Judgments of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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