J-S79026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

DANIEL BOMBARO,

                        Appellant                   No. 692 EDA 2014


       Appeal from the Judgment of Sentence of November 12, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008071-2011


BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED JUNE 17, 2015

     Appellant, Daniel Bombaro, appeals from the judgment of sentence

entered on November 12, 2013, following the revocation of probation and

resentencing after conviction of a new crime.    On appeal, counsel filed an

application to withdraw from representation pursuant to Commonwealth v.

McClendon, 434 A.2d 1185 (Pa. 1981) and its federal precursor, Anders v.

California, 386 U.S. 738 (1967), as well as an Anders brief on Appellant’s

behalf. Upon careful consideration, we grant counsel leave to withdraw and

affirm the revocation sentence.

     We summarize the facts and procedural history of this case as follows.

On May 12, 2011, the Commonwealth charged Appellant with, inter alia,

aggravated assault, robbery, and possession of an instrument of crime (PIC)

after Appellant robbed a convenience store and lacerated the store clerk with



*Retired Senior Judge assigned to the Superior Court.
J-S79026-14



a pair of scissors. On October 28, 2011, Appellant pled guilty to robbery and

PIC and was sentenced to 11½ to 23 months of incarceration, followed by

three years of probation. On October 29, 2013, while on probation for the

aforementioned offenses, Appellant was convicted of driving under the

influence (DUI).1 On November 12, 2013, the trial court held a hearing and

revoked Appellant’s probation based upon Appellant’s new conviction, his

failure to complete required rehabilitative treatment, and for absconding

from probationary supervision. The trial court imposed a new sentence of

two to four years of imprisonment. On November 19, 2013, Appellant filed a

motion for reconsideration of his sentence. The trial court denied relief by

order dated November 27, 2013. This timely appeal resulted.2

       On appeal, counsel filed a purported Anders brief in this Court and an

accompanying application to withdraw as counsel.           The Anders brief

presents two potential issues for our review:

         A. Was evidence that [Appellant] was convicted of [DUI]
            sufficient for revocation?
____________________________________________


1
  Appellant appealed his judgment of sentence for three counts of DUI in a
related appeal at 932 EDA 2014. In that appeal, this panel affirmed
Appellant’s DUI convictions.
2
   On December 12, 2013, Appellant filed a notice of appeal. On December
16, 2013, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January
6, 2014, Appellant’s counsel filed a statement of intent to file an
Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4). Accordingly, on
March 12, 2014, the trial court filed an order specifying it would not issue an
opinion.



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          B. Was the probation           revocation   sentence   illegal   or
             excessive?

Appellant’s Brief at 2.

       “Initially, we note that we may not address the merits of the issue

raised on appeal        without first reviewing the       request to       withdraw.”

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc).     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 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. (citation omitted).

       Herein, counsel's petition to withdraw from representation states that

he reviewed the record and concluded that the appeal is frivolous.

Additionally, counsel notified Appellant that he was seeking permission to

withdraw and furnished Appellant with copies of the petition to withdraw and

Anders brief, and advised Appellant of his right to retain new counsel or

proceed pro se to raise any points he believes worthy of this Court's

attention.3 Accordingly, counsel has satisfied the procedural requirements of

Anders.

____________________________________________


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



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        Having concluded that counsel has complied with the procedural

mandates of Anders, we now determine whether counsel's Anders brief

meets the substantive dictates.         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.

Id. 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. Id. (citation omitted).

        Instantly, counsel provided the facts and procedural history of the

case.    Based upon his review, counsel concludes that the evidence of

Appellant’s underlying DUI convictions were sufficient to support revocation

because the trial court may revoke an order of probation and impose a

sentence of total confinement if the probationer is convicted of another

crime. Here, it is uncontested that Appellant was convicted of DUI while on

probation. Appellant’s Brief at 6, 9. In addition, this Court affirmed those

convictions at 932 EDA 2014. Moreover, counsel concedes that Appellant’s

sentencing claims are wholly frivolous as the sentencing guidelines do not

apply to probation violations and the trial court was only limited by the

statutory sentencing maximums available at the time of original sentencing.


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Id. at 6-7. Here, “[A]ppellant was originally found guilty of robbery, which

carries a maximum sentence of twenty [y]ears [of] total confinement.” Id.

at 7. Counsel concludes that Appellant’s original maximum sentence of 23

months of incarceration, plus the maximum sentence of four years of

imprisonment imposed following revocation falls below the 20-year statutory

maximum for robbery and, thus, Appellant’s sentence was legal. Id. at 10.

Based upon the foregoing, we conclude that counsel has complied with the

minimum requirements of Anders. We now turn to the issues presented on

appeal.

     With regard to the authority over probation, 42 Pa.C.S.A. § 9771

provides:

          Modification or revocation of order of probation

          (a) General rule.--The court may at any time terminate
          continued supervision or lessen or increase the conditions
          upon which an order of probation has been imposed.

          (b) Revocation.--The court may revoke an order of
          probation upon proof of the violation of specified conditions
          of the probation. Upon revocation the sentencing
          alternatives available to the court shall be the same as were
          available at the time of initial sentencing, due consideration
          being given to the time spent serving the order of
          probation.

          (c) Limitation on sentence of total confinement.--The court
          shall not impose a sentence of total confinement upon
          revocation unless it finds that:

             (1) the defendant has been convicted of another
             crime; or




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            (2) the conduct of the defendant indicates that it is
            likely that he will commit another crime if he is not
            imprisoned; or

            (3) such a sentence is essential to vindicate the
            authority of the court.

        (d) Hearing required.--There shall be no revocation or
        increase of conditions of sentence under this section except
        after a hearing at which the court shall consider the record
        of the sentencing proceeding together with evidence of the
        conduct of the defendant while on probation. Probation may
        be eliminated or the term decreased without a hearing.

42 Pa.C.S.A. § 9771. As the foregoing statutory language establishes, the

trial court retains authority over probation and may revoke probation upon a

conviction for a new crime. Here, Appellant was convicted of three new DUI

offenses. See 932 EDA 2014. Thus, the trial court did not err in revoking

probation and imposing a sentence of total confinement.             Hence, we

conclude Appellant’s first issue is frivolous.

      Next, we turn to Appellant’s claim that his sentence following

revocation of probation was illegal or excessive. Initially, we set forth our

scope and standard of review. In earlier cases, this Court stated that “[t]he

scope of review in an appeal following a sentence imposed after probation

revocation is limited to the validity of the revocation proceedings and the

legality of the judgment of sentence.”           See, e.g., Commonwealth v.

Infante, 850 A.2d 696, 697–698 (Pa. Super. 2004).          Later, however, we

recognized “that this was too narrow of a statement of our scope of review,

and that our scope of review permits us to consider challenges to the


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discretionary aspects of an appellant's sentence in an appeal following a

revocation of probation.” Commonwealth v. Williams, 69 A.3d 735, 740

(Pa. Super. 2013) (internal citations omitted); see also Cartrette, supra

(Our scope of review in an appeal from a revocation includes discretionary

sentencing challenges).

     Pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.        See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

     As this Court has explained:

        To reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, 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).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

     “The determination of whether a particular case raises a substantial

question is to be evaluated on a case-by-case basis. Generally, however, in

order to establish that there is a substantial question, the appellant must

show actions by the sentencing court inconsistent with the Sentencing Code

or contrary to the fundamental norms underlying the sentencing process.”

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

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citations   omitted).   Further,   as   our   Supreme   Court    has   held,   the

determination of whether a substantial question exists must be done prior to

– and be divorced from – the determination of the potential merits of an

issue. Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it

were otherwise, a challenger would “in effect obtain[] an appeal as of right

from the discretionary aspects of a sentence” – a result that would violate

statutory law. Id.

      As stated previously, Appellant filed a timely notice of appeal and

preserved his discretionary sentence challenge in a post-sentence motion.

Further, Appellant has included a Rule 2119(f) statement in his brief.

Appellant’s Brief at 6-7.   Appellant has not, however, raised a substantial

question that his sentence is inappropriate under the Sentencing Code or

contrary to the fundamental norms of the sentencing process.

      Appellant was sentenced following the revocation of his probation;

hence, the sentencing guidelines do not apply to our analysis. 204 Pa.Code

§ 303.1(b); Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super.

2006). “[W]hen a defendant is found in violation of his probation, upon

revocation the sentencing alternatives available to the court shall be the

same as were available at the time of initial sentencing [].” Commonwealth

v. Schutzues, 54 A.3d 86, 98-99 (Pa. Super. 2012).              Nevertheless, in

sentencing Appellant, the trial court was required to “consider the general

principles and standards of the Sentencing Code.”         Commonwealth v.


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Russell, 460 A.2d 316, 322 (Pa. Super. 1983).       Section 9721 expresses

these general principles in the following manner:

        the sentence imposed should call for confinement that is
        consistent with the protection of the public, the gravity of
        the offense as it relates to the impact on the life of the
        victim and on the community, and the rehabilitative needs
        of the defendant.

42 Pa.C.S.A. § 9721(b).

     In this case, the trial court originally sentenced Appellant to 11½ to

23 months of imprisonment on Appellant’s robbery and PIC convictions.

Appellant’s original robbery conviction constituted a first-degree felony and

was subject to a maximum term of twenty years of imprisonment. See 18

Pa.C.S.A. § 1103(1) (statutory maximum term of imprisonment in the case

of a felony of the first-degree, shall be fixed by the court at not more than

twenty years). Upon revocation, the trial court sentenced Appellant to two

to four years of imprisonment.      When the original sentence and new

sentence are totaled, the sum of imprisonment falls below the statutory

maximum for a robbery. Hence, the sentence is legal.

     Moreover, the trial court examined the general statutory principles

pronounced in Section 9721 before imposing Appellant’s new sentence.

Appellant’s underlying convictions involved the robbery and laceration of the

proprietor of a corner store.     N.T., 11/12/2013, at 10.    The trial court

stated that in imposing the original sentence, it examined the statutory

sentence maximums but initially imposed a lesser sentence as “an


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opportunity and a break to get it right.” Id. at 13.     While the trial court

empathized with Appellant’s ongoing substance abuse issues, it stated that

Appellant’s behavior indicated his lack of interest in rehabilitation. Id. The

trial court noted that in addition to DUI, Appellant absconded from

supervision and had tested positive for controlled substances while on

probation and concluded that a term of total confinement was apropos. Id.

Thus, the trial court considered the protection of the public, the gravity of

the offense, and the rehabilitative needs of the defendant before imposing

its sentence.   As such, Appellant’s claim does not raise a substantial

question that the sentence imposed was inappropriate under the Sentencing

Code and we cannot reach the merits of Appellant’s second claim.

      Further, after an independent review of the entire record, we see

nothing that might arguably support this appeal. See Commonwealth v.

Vilsaint, 893 A.2d 753, 758 n.6 (Pa. Super. 2006) (“The filing of the

Anders brief triggers the duty of our Court to conduct an independent

review of the entire record to make sure counsel has fully represented his

client's interest.”). The appeal is, therefore, wholly frivolous. Accordingly,

we affirm Appellant’s judgment of sentence and grant counsel’s petition for

leave to withdraw appearance.

      Petition for leave to withdraw as counsel granted.        Judgment of

sentence affirmed.




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     Judge Allen joins this Memorandum.   Judge Strassburger files a

Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




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