J-516037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appe||ee

V.

JosHuA R. BoucHEY,

 

Appellant No. 1336 WDA 2016

Appeal from the Judgment of Sentence August 17, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-OZ-CR-OOOl498-2015

BEFORE: Moul_ToN, J., RANsoM, J., and PLATr, J.*
MEMoRANDuM BY PLATr, J.: FILED APRIL 6, 2017

Appellant, Joshua R. Bouchey, appeals from the judgment of sentence
imposed following revocation of his probation. Counsel for Appellant has
petitioned to withdraw on the ground that his issue on appeal is wholly
frivolous.1 We grant counsel's petition to withdraw and affirm the judgment
of sentence.

We take the following relevant facts and procedural history of this case
from our independent review of the certified record. On August 19, 2015,

Appellant pleaded guilty to burglary at the instant docket number, 1498-

 

* Retired Senior Judge assigned to the Superior Court.

1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).

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2015.2 The charge arose from his taking of two fire safes containing
personal paperwork, collectors' coins, and paper currency, from a residence
in April of 2015.3 On the same day Appellant entered the plea, the court
sentenced him to a term of twenty years' probation, consecutive to the
sentence imposed at Docket Number 1259-2015.

On August 17, 2016, the trial court held a parole/probation revocation
hearing because Appellant fled to North Carolina after the treatment facility
unsuccessfully discharged him. The court revoked Appellant's probation at
the instant docket number,4 and immediately sentenced him to a term of not
less than three nor more than six years' incarceration, followed by three
years' probation, consecutive to the sentence imposed at Docket Number
1259-2015. Appellant filed a timely motion for post-sentence relief, which
the trial court denied on August 25, 2016. See Pa.R.Crim.P. 708(E). On

August 26, 2016, Appellant filed a post-sentence motion seeking a

 

2 18 Pa.c.s.A. § 3502(a)(2).

3 Appellant also pleaded guilty to theft by unlawful taking, at separate
Docket Number 1259-2015. The trial court accepted him into treatment
court and imposed a term of not less than nine nor more than twenty-three
and one-half months, with a parole date of August 27th to go to a treatment
facility. (See N.T. Guilty Plea and Sentencing, 8/19/15, at 10, 18-19).

4 The court also revoked Appellant's parole at Docket Number 1259-2015,
and imposed a sentence of not less than nine nor more than twenty-three
and one-half months' incarceration. (See N.T. Revocation Hearing, 8/17/16,
at 14).

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determination that he is boot camp eligible,5 which the trial court denied on
August 29, 2016. On September 7, 2016, Appellant filed a timely notice of
appeal, and his counsel filed a statement of intent to file an Anders brief.
See Pa.R.A.P. 1925(c)(4). On September 12, 2016, the trial court issued a
statement indicating that no opinion is necessary in light of counsel's filing.
See Pa.R.A.P. 1925(a).

On December 19, 2016, counsel filed an Anders brief and a petition to
withdraw as counsel stating her belief that there are no non-frivolous issues
to raise on appeal. (See Petition to Withdraw as Counsel, 12/19/16, at
unnumbered page 1 11 3). Counsel submitted to this Court a copy of her
letter to Appellant, enclosing a copy of the Anders brief. (See Letter from
Tina M. Fryling, Esq. to Appellant, 12/16/16, at unnumbered page 1).

Appellant has not responded.

[I]n the Anders brief that accompanies . . . 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

 

5 “Boot camp is a six month program which provides inmates with
regimented work activity, training, education and counseling. Upon
completion of the program the inmate is automatically released on parole.”
Commonwealth v. Gunter, 849 A.2d 587, 589 n.2 (Pa. Super. 2004)
(citations and internal quotation marks omitted).

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on point that have led to the conclusion that the appeal is
frivolous.

Santiago, supra at 361.
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.

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 to either 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. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)
(citations omitted).

In the instant case, counsel has complied with the Anders and
Santiago requirements. She has submitted a brief that summarizes the
case, (see Anders Brief, at 2); referred to anything that might arguably
support the appeal, (see id. at 3-6); and set forth her reasoning and
conclusion that the appeal is frivolous, (see id. at 6-7). See Santiago,
supra at 361. Counsel has sent Appellant a letter enclosing a copy of the
Anders brief and petition to withdraw, and notifying him of his right to
retain new counsel or proceed pro se. Because counsel's petition and brief

satisfy the requirements of Anders and Santiago, we will undertake our

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own review of the appeal to determine if it is wholly frivolous. See
O’Malley, supra at 1266.

The Anders brief raises one issue for our review: “Was the sentence
in this case manifestly excessive and clearly unreasonable, and not
individualized as required by law, especially in that the sentence did not take
into account the fact that [Appellant] would have benefitted from boot
camp?" (Anders Brief, at 1) (unnecessary capitalization omitted).6
Appellant's claim challenges the discretionary aspects of his sentence.

Such a challenge to the discretionary aspects of a sentence is
not appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.

Before we reach the merits of this [issue], we must
engage in a four part analysis to determine: (1)
whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant's brief
includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question
that the sentence is appropriate under the
sentencing code. . . . Finally, if the appeal satisfies
each of these four requirements, we will then
proceed to decide the substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)
(citations omitted); see also Commonwealth v. Kalichak, 943
A.2d 285, 289 (Pa. Super. 2008) (“[W]hen a court revokes
probation and imposes a new sentence, a criminal defendant
needs to preserve challenges to the discretionary aspects of that
new sentence either by objecting during the revocation
sentencing or by filing a post-sentence motion.").

 

6 The Commonwealth did not file a brief.

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Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015) (one case citation omitted).

Here, Appellant filed a timely notice of appeal and preserved his claim
by filing post-sentence motions. Counsel has included the requisite Rule
2119(f) statement in the Anders brief, which alleges that Appellant's
sentence is manifestly excessive because it was not individualized to his
particular circumstances and needs. (See Anders Brief, at 3-4). Appellant
maintains that the court should have included boot camp eligibility in the
sentence and run his sentences concurrently, where the record reflects that
“he is a 32 year old father of three [children] who had been employed, . . .
[and] turned his life around while in rehabilitation[.]” (Id. at 5; see id. at
3-4). Because a claim that the court failed to impose an individualized
sentence raises a substantial question, we will review the merits of
Appellant's issue. See Commonwealth v. Schueg, 582 A.2d 1339, 1340-
41 (Pa. Super. 1990).

Our standard of review is well-settled. We have explained:
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.

In determining whether a sentence is
manifestly excessive, the appellate court must give

_6_

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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. 42 Pa.C.S.A. §
9771(b). [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.A. § 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:

(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.

42 Pa.c.s.A. § 9771(¢).

Colon, supra at 1043-44 (case citations and quotation marks omitted).
“We note that the imposition of consecutive rather than concurrent
sentences generally lies within the discretionary power of the sentencing
court." Commonwealth v. Trinidad, 96 A.3d 1031, 1039 n.8 (Pa. Super.
2014), appeal denied, 99 A.3d 925 (Pa. 2014) (citations omitted).

Instantly, at the revocation hearing, the trial court heard from
Appellant's counsel, who recounted his family circumstances and
employment history. (See N.T. Revocation Hearing, at 8). The court also

heard from Appellant's long-time girlfriend and mother of his children, who

_7_

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explained his struggle with addiction and his efforts to improve his life, and
described him as a caring, loyal person, and a wonderful father. (See id. at
8-10). Appellant expressed remorse for his actions in failing to complete
treatment and fleeing to North Carolina, and acknowledged that he “made
some very poor decisions based on what [he] thought to be the immediate
needs of [his] family[.]” (Id. at 11). The Commonwealth noted that
Appellant had failed to take advantage of treatment opportunities, and asked
the court to impose a term of incarceration, based on its agreement with the
probation department that he is not amenable to treatment. (See id. at 11-

12). The trial court then set forth the reasons for its sentence as follows:

I've read the revocation summary, I've read [the] letter
[Appellant sent to the court], I've listened to the evidence
presented here today and there's very little to be found in terms
of mitigation here, [Appellant].

There's no dispute that there's a need for drug and alcohol
services. You were admitted into Treatment Court on some very
serious charges at two different docket numbers[.] . . . And you
were given the benefit at that time of not going to State Prison,
you were given the benefit of treatment and you didn't even last
30 days, basically.

I've read your letter, I've heard what your girlfriend had to
say, and, quite honestly, I don't accept the explanation as to
why you left [the treatment facility]. And it's inexcusable from
that point as to why you didn't come back. Your probation
officer required or requested that you report and you don't
report and you don't come to court and you go AWOL. You'd still
be AWOL but for the fact you got arrested in North Carolina.

So the fact that you had children didn't affect your ability
to make responsible decisions in terms of being under
supervision for some very serious offenses and for thumbing
your nose really at opportunities to be rehabilitated. And I

_8_

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understand why the probation office takes the position that
you're not amenable to community supervision because left to
your own devices you're not under supervision, and that's not
good.

(Id. at13-14).

Upon review, we discern no abuse of discretion in the trial court's
imposition of sentence. See Colon, supra at 1043-44. The record reflects
that revocation and a sentence of imprisonment for Appellant, who had
failed to complete treatment and absconded to another state, was essential
to vindicate the authority of the court. See id. Accordingly, Appellant's
issue on appeal does not merit relief. Furthermore, after independent
review, we determine that there are no other non-frivolous bases for appeal,
and this appeal is “wholly frivolous." O’Malley, supra at 1266.

Judgment of sentence affirmed. Petition for leave to withdraw as

counsel gra nted.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 4[6[2017

