J-S18035-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                 Appellee                  :
                                           :
                 v.                        :
                                           :
KEESHAN LEE EDMOND                         :
                                           :
                 Appellant                 :         No. 984 MDA 2015

            Appeal from the Judgment of Sentence May 7, 2015
            in the Court of Common Pleas of Lancaster County,
           Criminal Division, at No(s): CP-36-CR-0000383-2007,
            CP-36-CR-0000413-2007, CP-36-CR-0003588-2009

BEFORE:    BOWES, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED MARCH 09, 2016

     Keeshan Lee Edmond (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).                 We affirm the

judgment of sentence and grant the petition to withdraw.

     In 2007, Appellant was charged with six counts each of burglary and

conspiracy stemming from Appellant’s unlawful removal of copper pipes from

unoccupied residences in Columbia, Pennsylvania (case number 383 of

2007). Also in 2007, Appellant was charged with one count each of burglary

and conspiracy stemming from the burglary of an unoccupied residence in

Columbia, Pennsylvania (case number 413 of 2007).            On September 27,

*Retired Senior Judge assigned to the Superior Court.
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2007, Appellant entered into a negotiated guilty plea at both docket

numbers and was sentenced to concurrent terms of ten years of probation

on the burglary charges, with each conspiracy charge merging for the

purposes of sentencing.

     In 2009, Appellant was charged with two counts of simple assault

(case number 3588 of 2009). On March 23, 2010, Appellant entered into a

negotiated guilty plea and was sentenced to concurrent terms of two years

of probation on each charge. Appellant’s probation was also revoked for the

2007 cases.

     Appellant violated the terms of probation on numerous occasions

throughout 2011, 2013, and 2014.         Appellant’s most recent violation

culminated in a hearing on May 7, 2015.     At that hearing, the probation

officer explained to the court that things were “going downhill.” N.T.,

5/7/2015, at 2. Appellant “stopped reporting” [and] “admitted himself into

[a treatment program] at which point he was unsuccessfully discharged and

he’s never welcome back[.]” Id. “He received new receiving stolen property

charges while absconding.” Id.   “He still owe[d] a substantial amount of

money, $77,000.” Id. at 2-3.

     Based on the foregoing, the revocation court found violations at all

three docket numbers and sentenced Appellant to concurrent terms of 18




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months to 3 years of incarceration at case numbers 383 of 2007 and 413 of

2007.1

     On May 21, 2015, Appellant filed a post-sentence motion nunc pro

tunc requesting the revocation court make Appellant boot camp eligible. On

June 2, 2015, the revocation court granted Appellant the right to file the

post-sentence motion nunc pro tunc and granted the motion itself making

Appellant boot camp eligible.

     On June 5, 2015, Appellant timely filed a notice of appeal. In response

to the revocation court’s order to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925, counsel for Appellant

filed a statement of intent to file an Anders/McClendon brief pursuant to

Pa.R.A.P. 1925(c)(4).

     The following principles guide our review of this matter:

     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 a copy of the Anders
     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.



1
  The revocation court also imposed a concurrent term of one to two years of
incarceration at case number 3588 of 2009. However, the revocation court
later vacated that sentence after concluding it was illegal.


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               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
        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

above requirements.2      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

2
    Appellant has not responded to counsel’s petition to withdraw.



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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).

        According to counsel, Appellant wishes to challenge the discretionary

aspects of his sentence. It is within this Court’s scope of review to consider

challenges to the discretionary aspects of an appellant’s sentence in an

appeal following a revocation of probation. Commonwealth v. Ferguson,

893 A.2d 735, 737 (Pa. Super. 2006); see also Commonwealth v.

Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (“A challenge to an alleged

excessive sentence is a challenge to the discretionary aspects of a

sentence.”).

        An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test:

        We 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. 720; (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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation

omitted).

        Instantly, Appellant has satisfied the first requirement by filing timely

a     notice   of   appeal.   To   satisfy   the   second   requirement   regarding




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preservation, we point out that “[o]bjections to the discretionary aspects of

a sentence are generally waived if they are not raised at the sentencing

hearing or in a motion to modify the sentence imposed.” Commonwealth v.

Griffin, 65 A.3d 932, 935 (Pa. Super. 2013).

      Appellant’s post-sentence motion did not include a challenge to the

discretionary aspects of his sentence.   Additionally, Appellant did not raise

this issue at his sentencing hearing. Therefore, Appellant has not preserved

this issue, and it is waived. An issue that is waived is frivolous. See

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008)

(holding that when an issue has been waived, “pursuing th[e] matter on

direct appeal is frivolous”). Consequently, we agree with counsel that this

appeal is frivolous.

      Even if Appellant had not waived this issue, we would agree with

counsel that this appeal is frivolous because the trial court did not abuse its

discretion in fashioning Appellant’s sentence.     We analyze such a claim

mindful of the following.

            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. An abuse
            of discretion is more than an error in judgment—a
            sentencing court has not abused its discretion unless
            the record discloses that the judgment exercised was
            manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill-will.




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           In determining whether a sentence is manifestly
           excessive, the appellate court must give great
           weight to the sentencing court’s discretion, as he or
           she is in the best position to measure factors such as
           the nature of the crime, the defendant’s character,
           and the defendant’s display of remorse, defiance, or
           indifference.

           Upon revoking probation, a sentencing court may choose
     from any of the sentencing options that existed at the time of
     the original sentencing, including incarceration.             [U]pon
     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.         However, 42 Pa.C.S.[]
     § 9771(c) provides that once probation has been revoked, a
     sentence of total confinement may only be imposed if any of the
     following conditions exist[s]:

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

           (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.

           In addition, in all cases where the court resentences an
     offender following revocation of probation ... the court shall
     make as a part of the record, and disclose in open court at the
     time of sentencing, a statement of the reason or reasons for the
     sentence imposed [and] [f]ailure to comply with these provisions
     shall be grounds for vacating the sentence or resentence and
     resentencing the defendant. A trial court need not undertake a
     lengthy discourse for its reasons for imposing a sentence or
     specifically reference the statute in question, but the record as a
     whole must reflect the sentencing court’s consideration of the
     facts of the crime and character of the offender.

Commonwealth v. Colon, 102 A.3d at 1033, 1044 (Pa. Super. 2014)

(citations and quotation marks omitted).



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     The trial court offered the following reasoning on the record.

            Everything I said at that hearing and everything in that
     [presentence investigation report], [Appellant], tells me that
     unless you are tightly and under constant structure and constant
     supervision and constantly required to push yourself in the
     direction that others give you, that you will, in fact, simply
     change your mind about what is attractive to you at any given
     time; that you still have not come to the conclusion that
     maturity requires a sacrifice of your preferences to the realities
     that you have created for yourself. The realities you created for
     yourself are two felonies in the second degree with a ton of time
     on them and seven violations in total, eight prior offenses, four
     of which are felonies, fifteenth appearance in court since ’07,
     and less than a year after I gave you the opportunity to
     demonstrate by not violating that you can invest in yourself and
     you’re back in front of me.

           There is no way now that a state sentence is not the
     appropriate recommendation to accept from Probation and
     Parole. I am sorry that it has to be this way.

            I will tell you right now that you can go up there with the
     attitude that this sucks, it’s unfair, and I take no responsibility
     because this system is crummy, it hasn’t fixed me, and that is
     the same as throwing up your hands, saying I am not
     responsible for any aspect of my life and I have no interest in
     making anything out of it, or you can go up there and realize
     that the track record that you built up was you building it up, the
     choices that you made.

           You can decide to overcome the influences that will be up
     there for the negative and try your best to focus on building a
     set of drug and alcohol tools to keep you sober, and finding
     more reliable vocational training so that maybe you can invest at
     a greater level in yourself. That is the only hope you have.

           You are 26 years old. You have abilities. You owe it to
     yourself, to your family. You owe it to the community to make
     something out of yourself, not simply to be another example of
     in and out of the court system.




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           When you come out, I want you to realize that there is a
     benefit to walking the straight path, to setting a goal and
     achieving it, and having it be a positive goal that builds up and
     doesn’t tear down. Every goal you’ve set for yourself you
     allowed to be torn down by either your own lack of discipline or
     addictive behavior. I don’t know which it is. Only a professional
     will know that. I hate doing this, but I feel that you leave me
     with absolutely no choice. I think we exhausted everything we
     can do here.

N.T., 5/7/2015, at 6-8.

     Upon review, we discern no abuse of discretion.                  The record

demonstrates     that   the   revocation   court   considered   the   appropriate

sentencing criteria and reasonably concluded that probation was ineffective.

     Based on the foregoing, we conclude that Appellant’s issue challenging

the discretionary aspects of his sentence is frivolous.     Moreover, we have

conducted “a full examination of the proceedings” and conclude that “the

appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248. Thus, we

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

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2016




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