J-S76028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

NATHAN GENE WATKINS

                            Appellant                No. 1054 WDA 2014


              Appeal from the Judgment of Sentence June 4, 2014
                In the Court of Common Pleas of Clarion County
              Criminal Division at No(s): CP-16-CR-0000765-2005


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                      FILED FEBRUARY 18, 2015

       Appellant, Nathan Gene Watkins, appeals from the judgment of

sentence entered following the revocation of his probation June 4, 2014.1

Additionally, Watkins’s court-appointed counsel, Erich R. Spessard, Esquire,

has filed an application to withdraw as counsel pursuant to Anders v.

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

A.2d 349 (Pa. 2009). After careful review, we affirm Watkins’ judgment of

sentence and grant counsel’s petition to withdraw.

       Watkins entered a guilty plea to criminal mischief and conspiracy to

commit arson on April 5, 2006. The lower court sentenced Watkins to nine
____________________________________________


1
 Although Watkins purports to appeal from the order entered June 9, 2014,
which denied his post-sentence motion for modification of sentence, his
appeal properly lies from the judgment of sentence entered June 4, 2014.
We have amended the caption accordingly.
J-S76028-14



to eighteen months’ imprisonment on the conspiracy charge, to be followed

by five years’ probation for criminal mischief. Subsequent thereto, Watkins

was found to be in violation of his probation on January 26, 2012, May 24,

2012, and December 19, 2013. Relevant to the instant appeal, yet another

revocation hearing was scheduled for May 29, 2014. Following the hearing,

the court determined that Watkins had violated the conditions of his

probation by failing to inform the probation office of his recent arrest and

sentence for retail theft in Westmoreland County, by attempting to escape

on April 25, 2014, and by failing to make payments of “fines, costs,

supervision fees and restitution which has a total balance in excess of

$43,000.” N.T., Gagnon II Hearing, 3/29/14 at 70. Thereafter, the court

revoked Watkins’s probation on criminal mischief and resentenced him to 3½

to 7 years’ incarceration with credit for time served. Watkins filed a timely

post-sentence motion, which the court denied. This timely appeal followed.

     Preliminarily, we note that Attorney Spessard has requested to

withdraw and has submitted an Anders brief in support thereof contending

that Watkins’ appeal is frivolous.   The Pennsylvania Supreme Court has

articulated the procedure to be followed when court-appointed counsel seeks

to withdraw from representing an appellant on direct appeal:

        [I]n 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 arguably believes supports the appeal; (3) set
        forth counsel’s conclusion that the appeal is frivolous; and


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          (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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

       We note that Attorney Spessard has substantially complied with all of

the requirements of Anders as articulated in Santiago.             Additionally,

Attorney Spessard confirms that he sent a copy of the Anders brief as well

as a letter explaining to Watkins that he has the right to proceed pro se or

the right to retain new counsel. A copy of the letter is appended to Attorney

Spessard’s petition, as required by this Court’s decision in Commonwealth

v. Millisock, 873 A.2d 748 (Pa. Super. 2005), in which we held that “to

facilitate appellate review, … counsel must attach as an exhibit to the

petition to withdraw filed with this Court a copy of the letter sent to

counsel’s client giving notice of the client’s rights.” Id., at 749 (emphasis in

original).

       We will now proceed to examine the issues counsel set forth in the

Anders brief.2 Watkins first argues that the trial court abused its discretion

when it revoked his probation. See Appellant’s Brief at 4.

       A court may revoke an order of probation upon proof of the violation of

specified conditions of the probation. See Commonwealth v. Infante, 888

A.2d 783, 791 (Pa. 2005). “A probation violation is established whenever it
____________________________________________


2
  Watkins has not filed a response to Attorney Spessard’s petition to
withdraw.



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is shown that the conduct of the probationer indicates the probation has

proven to have been an ineffective vehicle to accomplish rehabilitation and

not sufficient to deter against future antisocial conduct.”        Id., at 791.

Technical    violations   are   sufficient   to   trigger   revocation.    See

Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).

        Instantly, the trial court conducted a probation revocation hearing on

May 29, 2014, at which Clarion County Adult Probation Officer Curtis Drake

testified that he had an appointment with Watkins on April 25, 2014, in

order to discuss Watkin’s April 16, 2014 conviction and sentence for retail

theft in Westmoreland County. See N.T., Gagnon II Hearing, 3/29/14 at 6-

7. Officer Drake testified that when he confronted Watkins, he repeatedly

denied the conviction and resulting sentence of one-year probation. See id.

at 7.     Officer Drake placed Watkins under arrest for failing to report the

police contact and resulting conviction and sentence to the probation

department, in violation of the rules and conditions of his probation

supervision. See id. at 11-12. Officer Drake additionally testified that as he

was escorting Watkins to his vehicle, Watkins slipped from his grip and

began to sprint away from the building. See id. at 15. Officer Drake chased

and was able to subdue Watkins.        Adult Probation Officers Jay Kerle and

Michael Blum confirmed Officer Drake’s testimony regarding Watkins’

attempt to flee custody. See id. at 31-32; 36-39.

        Following the hearing, the trial court found by clear and convincing

evidence that Watkins had violated Rule 4 of the terms and conditions of his

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probation by being arrested and not informing the probation office of his

arrest or sentence.   See id. at 70. The court further determined Watkins

had violated Rule 9 by attempting to escape on April 25, 2014, and Rule 10

by failing to make payments of “fines, costs, supervision fees and restitution

which has a total balance in excess of $43,000.” Id.      In light of Watkins’

repeated and willful violations of the lower court’s specified probationary

conditions, we find no abuse of discretion in the court’s revocation of his

probation.

      Lastly, Watkins argues that the sentence imposed by the trial court

was “unjust or unduly harsh[.]” Appellant’s Brief at 13. Our standard when

reviewing a sentence imposed following the revocation of probation is as

follows:

      Our review is limited to determining the validity of the probation
      revocation proceedings and the authority of the sentencing court
      to consider the same sentencing alternatives that it had at the
      time of the initial sentencing. Also, upon sentencing following
      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. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation

omitted), appeal denied, 94 A.3d 1009 (Pa. 2014).

      Watkins challenges the discretionary aspects of his sentence.        In

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

an en banc panel of this Court concluded, “this Court’s scope of review in an

appeal from a revocation sentencing includes discretionary sentencing



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challenges.”   Id., 83 A.3d at 1034.   Therefore, Watkins claim is properly

before us.

     A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

     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.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

     Here, Watkins filed a timely appeal and challenged his sentence in a

post-sentence motion.     Although Watkins’ brief does not contain the

requisite Rule 2119(f) statement, the Commonwealth does not object to the

statement’s absence.     Consequently, we decline to find waiver.        See

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014) (declining to find waiver where

Commonwealth did not object to Appellant’s failure to comply with Rule

2119(f)).


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       Watkins argues in his brief that the sentence imposed by the

revocation court was so manifestly excessive as to constitute an abuse of

discretion.    See Appellant’s Brief at 13.          This claim raises a substantial

question for our review. See Commonwealth v. Kelly, 33 A.3d 638, 640

(Pa. Super. 2011) (claim that a sentence is manifestly excessive such that it

constitutes too severe a punishment raises a substantial question for our

review).

       While Watkins argues that the sentence imposed by the lower court

following revocation was excessive, he notably does not argue that the

sentence imposed by the court was beyond the maximum.                  Nor does the

record support such an assertion.              It is well settled that the sentencing

guidelines do not apply to sentences imposed as a result of probation or

parole revocations. See Commonwealth v. Ware, 737 A.2d 251, 255 (Pa.

Super. 1999).3 Here, the lower court did not exceed the statutory maximum

when it resentenced Watkins to 3½ to 7 years’ imprisonment for the charge

of criminal mischief following the revocation of his probation.          Accordingly,

we discern no abuse of discretion in the sentence imposed by the trial court.




____________________________________________


3
  204 PA.CODE § 303.1(b) provides: “The sentencing guidelines do not apply
to sentences imposed as a result of the following: . . . revocation of
probation, intermediate punishment or parole.”




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      After examining the issues contained in the Anders brief and after

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed.        Permission to withdraw as counsel

granted. Jurisdiction relinquished.

      President Judge Emeritus Ford Elliott joins in the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




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