J-S78033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                  Appellee                :
                                          :
           v.                             :
                                          :
RICK LEE BYERS,                           :
                                          :
                  Appellant               :           No. 1215 MDA 2014

      Appeal from the Judgment of Sentence entered on May 28, 2013
              in the Court of Common Pleas of Adams County,
               Criminal Division, No. CP-01-CR-0000958-2010

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 30, 2015

     Rick Lee Byers (“Byers”) appeals from the judgment of sentence

imposed following the revocation of his intermediate punishment sentence.

Additionally, Byers’s counsel, Jamison Entwistle, Esquire (“Entwistle”), has

filed a Petition to Withdraw as Counsel and an accompanying brief pursuant

to Anders v. California, 386 U.S. 738, 744 (1967). We grant Entwistle’s

Petition to Withdraw and affirm.

     The trial court set forth the relevant underlying facts as follows:

     On August 29, 2010, [Byers] was charged with the crime of
     persons not to possess firearms as a felony of the first degree[,]
     in violation of Section 6105(a)(1) of the Pennsylvania Crimes
     Code.     [See 18 Pa.C.S.A. § 6105(a)(1).]        The affidavit of
     probable cause alleged that [Byers] possessed two rifles despite
     a criminal history[,] which included a conviction for burglary as a
     felony of the first degree. On January 24, 2011, [Byers] entered
     a plea of nolo contendere to the charge against him. As the plea
     was entered without agreement as to sentencing, a pre-sentence
     investigation was ordered. Included among information in the
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     pre-sentence investigation was the Pennsylvania standard
     sentencing guideline range calculation. That calculation revealed
     an offense gravity score of nine (9) for the crime [of] which
     [Byers] was convicted. It further revealed [that Byers] had a
     prior record score of five (5)[,] thereby carrying a standard
     minimum sentence guideline range of 48 months to 60
     months[,] with a mitigated range of minus 12 months. Prior to
     sentencing, the [c]ourt weighed the relevant factors[,] noting
     [Byers]’s burglary conviction was more than 30 years old. Based
     upon consideration of those factors[,] and in order to give
     [Byers] the opportunity to prove his recent conduct was an
     aberration, the [c]ourt imposed a sentence well below the
     standard sentencing guideline range. [Byers] was sentenced to
     36 months of county intermediate punishment[,] with 13 days to
     be served in partial confinement and the remaining time spent
     on probationary phases. [Byers] was credited for 13 days of
     partial confinement.

     On June 16, 2011, [Byers] was given notice for a violation of his
     sentence of intermediate punishment. Specifically, he admitted
     that on June 15, 2011[,] and June 16, 2011, he was present in a
     vehicle which contained marijuana. The violation resulted in a
     warning without revocation. Shortly thereafter, [Byers] once
     again violated his sentence and admitted to using marijuana on
     October 4, 2011[,] and October 19, 2011. Rather than initiate
     revocation proceedings, a case review was conducted by the
     Probation Department and a plan was subsequently entered with
     [Byers].

     On April 2, 2013, the Commonwealth moved to revoke [Byers]’s
     sentence of intermediate punishment. A revocation hearing was
     conducted on May 28, 2013. Commonwealth evidence at [the]
     hearing established the violations referenced above[,] as well as
     [Byers]’s failure to comply with the requirement of the case
     review plan that he obtain a mental health evaluation and
     comply with treatment recommendations.              Additionally,
     revocation testimony established [that Byers] failed to report to
     the Probation Department[,] as directed on December 19, 2011.
     … [T]he evidence [also] established a disturbing interaction
     between [Byers] and Probation staff[,] which occurred on April
     5, 2013. On that date, while meeting with his probation officer,
     [Byers] stood up, reached across the desk, and verbally
     threatened to stab the probation officer. He held a comb in his
     hand at the time and made a jabbing motion towards the officer.


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        Shortly thereafter, [Byers] told the probation officer that he had
        several firearms at his residence and bragged that [the]
        Probation [Department] could not search for the firearms[,] as
        they were stored in the portion of the residence where his
        mother resided.      Finally, in violation of a condition of his
        sentence, [Byers] refused to provide a urine sample.             A
        subsequent search of [Byers]’s residence yielded a machete-type
        weapon with a 24-inch blade hidden behind a mirror next to his
        bed.

        Finding [Byers] to have violated the conditions of his sentence of
        intermediate punishment, the [c]ourt resentenced [Byers] to a
        sentence of no less than four years nor more than eight years in
        a [S]tate [C]orrectional [I]nstitution [on May 28, 2013]. The
        minimum sentence was at the bottom of the standard guideline
        range for the charge [of] which [Byers] was originally convicted.

Trial Court Opinion, 9/3/13, at 1-3 (footnote omitted).

        Byers filed a Post-Sentence Motion, which the trial court denied. Byers

subsequently filed a Notice of Appeal.         This Court quashed the appeal,

concluding that Byers’s Notice of Appeal was untimely filed.                   See

Commonwealth v. Byers, 102 A.3d 538 (Pa. Super. 2014) (unpublished

memorandum).1

        On May 5, 2014, Byers filed a Post Conviction Relief Act (“PCRA”) 2

Petition, claiming, inter alia, that his counsel was ineffective for failing to file

a timely direct appeal.      The PCRA court appointed Entwistle as Byers’s

counsel.    Subsequently, the PCRA court granted Byers relief, and ordered


1
  We note that in his initial appeal, Byers’s counsel also sought to withdraw
her representation pursuant to Anders.          This Court granted counsel’s
petition to withdraw. See Byers, 102 A.3d 538 (unpublished memorandum
at 1, 8).
2
    See 42 Pa.C.S.A. §§ 9541-9546.


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that his direct appeal rights be reinstated. Byers then filed a timely Notice

of Appeal.

      Byers’s counsel, Entwistle, has filed a brief pursuant to Anders that

raises the following question for our review:

      Whether the sentencing court abused its discretion in re-
      sentencing [Byers] to serve no less than four (4) and no more
      than eight (8) years in a State Correctional Institution followed
      by two (2) years of probation on a first revocation, when there
      were only technical violations, no new criminal charges, and
      [Byers’s] original sentence was thirty-six (36) months [of]
      intermediate punishment[,] with only thirteen (13) days in
      restrictive phases?

Anders Brief at 6.      Entwistle filed a separate Petition to Withdraw as

Counsel on September 17, 2014.        Byers filed neither a pro se brief, nor

retained alternate counsel for this appeal.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, he/she must

      (1) petition the [C]ourt for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.




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Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders,

i.e., the contents of an Anders brief, and required that the brief

      (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. “Once counsel has satisfied the [Anders]

requirements, it is then this Court’s duty to conduct its own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.”     Edwards, 906 A.2d at 1228

(citation omitted).

      Here, Entwistle has complied with each of the requirements of

Anders.     Entwistle indicates that he has conscientiously examined the

record and determined that an appeal would be frivolous.             Further,

Entwistle’s Anders brief comports with the requirements set forth by the

Supreme Court of Pennsylvania in Santiago. Finally, the record includes a

copy of the letter that Entwistle sent to Byers, advising him of his right to



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proceed pro se or retain alternate counsel and file additional claims, and

stating Entwistle’s intention to seek permission to withdraw.    Accordingly,

Entwistle has complied with the procedural requirements for withdrawing

from representation and we will review the record to determine whether

Byers’s claim on appeal is frivolous.

      In this appeal, Byers challenges the discretionary aspects of his

sentence.   “Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right.” Commonwealth v. Moury, 992

A.2d 162, 170 (Pa. Super. 2010).           Prior to reaching the merits of a

discretionary sentencing issue,

      [this Court conducts] 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, [see] 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, [see] 42
      Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted). “A substantial question exi[s]ts

only when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Commonwealth v. Clarke, 70 A.3d 1281, 1286-

87 (Pa. Super. 2013) (citation omitted).




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      Here, Byers filed a timely Notice of Appeal. He also filed a timely Post-

Sentence Motion. Byers has included a Statement of the reasons relied upon

for allowance of appeal in his brief, pursuant to Pa.R.A.P 2119(f).          Byers

claims that he has raised a substantial question because his sentence is

excessive in light of the fact that this was his first violation, there were no

new criminal charges filed, and it was contrary to the fundamental norms of

fairness to go from a sentence of intermediate punishment to total

confinement. Anders Brief at 9-10. However, the Rule 2119(f) Statement

fails to cite what particular provision of the Sentencing Code, or what

specific   fundamental   norm   Byers’s   sentence   allegedly   violates.    See

Commonwealth v. Twitty, 876 A.2d 433, 439 (Pa. Super. 2005) (stating

that a claim that a sentence within the statutory limits is excessive can raise

a substantial question if the appellant sufficiently articulates “the manner in

which the sentence violates a specific provision of the Sentencing Code or is

contrary to a particular fundamental norm underlying the sentencing

process.”); see also Commonwealth v. Provenzano, 50 A.3d 148, 154

(Pa. Super. 2012) (stating that “we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”). Thus, the instant appeal does not

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

discretionary aspects of Byers’s sentence.




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      Nevertheless, in light of the fact that Entwistle has filed an Anders

brief and Petition to Withdraw as Counsel, we will address Byers’s sentencing

claims. See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super.

2009) (stating that while appellant failed to raise a substantial question on

his discretionary aspects of sentencing claim, this Court would address the

merits of the claim due to appellant’s counsel’s petition to withdraw as

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

2001) (concluding that Anders requires review of issues otherwise waived

on appeal). Byers argues that his sentence was excessive and unreasonable

because this was his first violation; at the time of the revocation hearing, he

had completed twenty-three of the thirty-six month sentence; no new

charges were filed; he cannot read; and he has mental health issues.

Anders Brief at 13.

      “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).                “An

intermediate punishment sentence imposed pursuant to 42 Pa.C.S.[A.]

§ 9763, Sentence of Intermediate Punishment, may be revoked where

the   specific   conditions   of   the   sentence    have    been    violated.”

Commonwealth v. Melius, 100 A.3d 682, 685 (Pa. Super. 2014) (citation

omitted).   In re-sentencing a defendant, the sentencing court has the

authority to consider the same sentencing alternatives that it had at the



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time of the original sentencing proceeding.         See 42 Pa.C.S.A. § 9773(b);

Melius, 100 A.3d at 685-86.           Further, the sentencing guidelines do not

apply     to   sentences    imposed     following   revocation   of   intermediate

punishment. Commonwealth v. Philipp, 709 A.2d 920, 921 (Pa. Super.

1998); see also 204 Pa.Code § 303.1(b) (stating that the sentencing

guidelines do not apply to sentences imposed as a result of, inter alia,

“revocation of probation, intermediate punishment or parole”).

        The trial court addressed Byers’s sentencing claims as follows:

        In imposing the current sentence, the [trial c]ourt was armed
        with a recent pre-sentence investigation. The [trial c]ourt also
        considered comments of defense counsel. Although permitted
        the right of allocution, [Byers] chose not to offer comment. In
        imposing re-sentencing, the [trial c]ourt noted that at the time
        of original sentence, [Byers] was granted the benefit of the
        doubt[;] however, his recent actions evidenced the risk he
        created to public safety. The [trial c]ourt also expressed a need
        to vindicate the authority of the [trial c]ourt as [Byers’s] actions
        were indicative of disrespect for the authority of the [trial c]ourt
        by a blantant effort to intimidate court personnel. In essence,
        although at the time of original sentencing[,] Byers was
        essentially given the benefit of the doubt, [Byers’s] recent
        actions revealed the benefit was improvidently granted as his
        conduct proved he has not yet adjusted his behavior in
        compliance with rules of a civilized society. Even still, the [trial
        c]ourt showed restraint by re-sentencing [Byers] to a sentence
        that fell at the lower end of the standard sentencing guidelines
        for the conduct of which he was originally convicted. Although
        the sentencing guidelines are clearly inapplicable on re-
        sentencing, in essence, the [trial c]ourt imposed the sentence
        [Byers] should have received had the [trial c]ourt initially not
        shown leniency. As [Byers] clearly did not take advantage of his
        opportunity at rehabilitation, he cannot now reasonably argue
        that despite his threatening behavior and complete disregard for
        the authority of the [trial c]ourt, he is not entitled to a repeat of
        that same leniency.



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                                    ***

     Prior to imposing the current sentence, the [trial c]ourt properly
     weighed the factors set forth in the sentencing code and made
     specific findings that the sentence imposed was necessary to
     vindicate the authority of the [trial c]ourt and ensure public
     safety. In doing so, the [trial c]ourt had the benefit of observing
     [Byers] in the courtroom in the context of the evidence as it was
     being presented. [Byers] was granted a reasonable opportunity
     at rehabilitation under the supervision of local authorities by
     originally being sentenced to an extremely favorable sentence.
     [Byers] took advantage of that opportunity, not by conforming
     his behavior, but rather by intentionally and contemptuously
     defying the [trial c]ourt’s authority over him. There is nothing
     excessive about the subsequent re-sentence under these
     circumstances.[fn]

     [fn]
         [Byers] also suggest[s that] the failure of [Byers] to be
     criminally charged for his conduct has some impact on the
     consideration of excessiveness. Pennsylvania law is clear that a
     criminal conviction is not necessary to revoke an offender for
     criminal conduct. See Commonwealth v. Ortega, 995 A.2d
     879, 886 (Pa. Super. 2010). …

Trial Court Opinion, 9/3/13, at 5-7 (footnote in original); see also N.T.,

5/28/13, at 44-46 (wherein the trial court set forth its reasons for the

sentence following revocation of Byers’s original intermediate punishment

sentence).

     Based upon the foregoing, we conclude that Byers’s sentencing claims

are without merit. See Trial Court Opinion, 9/3/13, at 5-7; see also N.T.,

5/28/13, at 44-46. Additionally, with regard to Byers’s claim that the trial

court did not consider the fact that he could not read and his mental health

issues, we deem these claims to be without merit. Indeed, the trial court

had the benefit of a pre-sentence investigation report, heard testimony from



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Byers regarding his literacy, and considered the fact that Byers failed to

access mental health services. See N.T., 5/28/13, at 3-4, 29, 44; see also

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (stating

that “where the sentencing judge had the benefit of a pre-sentence

investigation report, it will be presumed that he or she was aware of the

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.”).   Based on the

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

imposing the challenged sentence.

     Additionally, following our independent review of the record, we

conclude that Byers’s appeal is wholly frivolous. Thus, we grant Entwistle’s

Petition to Withdraw as Counsel and affirm the judgment of sentence.

     Petition to Withdraw as Counsel granted.       Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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