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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JODI LOUISE LEWIS,

                        Appellant                 No. 581 WDA 2015


           Appeal from the Judgment of Sentence March 4, 2015
             In the Court of Common Pleas of Jefferson County
 Criminal Division at No(s): CP-33-CR-0000077-2009, CP-33-CR-0000116-
                                   2009


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED DECEMBER 30, 2015

     Appellant, Jodi Louise Lewis, appeals from the judgment of sentence

entered on March 4, 2015, following the revocation of her probation.

Appellate counsel has filed a petition to withdraw his representation and a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a

petition to withdraw from representation on direct appeal. After review, we

grant counsel’s petition to withdraw, and we affirm the judgment of

sentence.

     The record reflects that on May 20, 2009, at Docket Number CP-33-

CR-77-2009, Appellant pled guilty to one count of theft by unlawful taking,

and at Docket Number CP-33-CR-116-2009, Appellant pled guilty to one
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count of escape. The trial court sentenced Appellant to a minimum term of

four months and fifteen days to a maximum term of two years less one day

in the Jefferson County Jail, followed by one day of probation on the escape

conviction.   The Court also sentenced Appellant to a term of two years of

probation for the theft conviction, and this sentence of probation was

ordered to be served consecutively to the sentence imposed for escape.

      On September 30, 2009, a bench warrant was issued after the

Jefferson County Adult Probation Department received information that

Appellant was in technical violation of her probation concerning her

residence and because new criminal charges were filed against her in South

Carolina.     On December 16, 2009, the trial court revoked Appellant’s

probation at Docket Number CP-33-CR-116-2009 and resentenced her to a

term of sixteen months to sixty months in a state correctional institution

followed by two years of probation. The trial court also revoked Appellant’s

probation at Docket Number CP-33-CR-77-2009 and resentenced Appellant

to a term of two years of probation, which was ordered to be served

concurrent to the probation portion of her sentence at Docket Number CP-

33-CR-116-2009.

      On August 7, 2014, a bench warrant was issued after the Jefferson

County Adult Probation Department received information that Appellant was

again in violation of her probation due to her use of controlled substances,

threatening to kill a man in Union County, North Carolina, failing to complete


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a treatment program, and failing to pay outstanding fees resulting from her

previous extradition. On August 12, 2014, Appellant waived her Gagnon I

hearing1 admitting to the violations, and she proceeded to a Gagnon II

hearing.    Gagnon Order, 8/12/14.             On August 27, 2014, the trial court

directed Appellant to submit a residence plan to the Jefferson County Adult

Probation Department, but inexplicably, no further court action was taken.

       On October 7, 2014, the Jefferson County Court issued a detainer as a

result of new criminal charges filed against Appellant in Clearfield County. 2

On February 10, 2015, Appellant pled guilty and was sentenced to time

served of fifty-three days to one year for possession of a controlled

substance in Clearfield County.          On March 4, 2015, the Jefferson County

Court of Common Pleas revoked Appellant’s probation at both Jefferson

County docket numbers and resentenced Appellant.3              At Jefferson County

____________________________________________


1
   Due process requires a probationer be given a preliminary (Gagnon I)
and a final (Gagnon II) hearing prior to revoking probation.
Commonwealth v. Knoble, 42 A.3d 976, 978 n.1 (Pa. 2012) (citing
Gagnon v. Scarpelli, 411 U.S. 778 (1973)). The Gagnon decision has
become the common moniker for both parole and probation revocation
proceedings. Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa.
Super. 2011).
2
  The trial court has the authority to detain a state                     parolee.
Commonwealth v. Kelly, 931 A.2d 694, 697 (Pa. Super. 2007).
3
  The trial court had the authority to revoke Appellant’s probation even
though Appellant had not yet begun to serve the probationary portion of her
split sentence and despite the fact that the offense upon which revocation of
probation was based occurred during the parole period and not the
(Footnote Continued Next Page)


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Docket Number CP-33-CR-116-2009, the trial court resentenced Appellant to

a term of three to seven years of incarceration with credit for time served,4

and at Docket Number CP-33-CR-77-2009, the trial court imposed a

sentence of two and one-half to five years with credit for time served.5 The

sentences were ordered to be served concurrently.

      Appellant filed a timely post-sentence motion that was denied on

March 13, 2015. This timely appeal followed.        However,   before   we   may

address the question raised on appeal, we first must resolve appellate

counsel’s request to withdraw.            Commonwealth v. Cartrette, 83 A.3d

1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal.

The procedural mandates are that 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.

                       _______________________
(Footnote Continued)

probationary period.        Commonwealth v. Ware, 737 A.2d 251, 253 (Pa.
Super. 1999).
4
   At Docket Number CP-33-CR-116-2009, the trial court made Appellant
eligible for release pursuant to the Recidivism Risk Reduction Incentive
(“RRRI”) Act, 61 Pa.C.S. §§ 4501-4512, at twenty-seven months.
5
  At Docket Number CP-33-CR-77-2009, the trial court made Appellant RRRI
eligible at twenty two-months.



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Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within the petition

to withdraw, counsel averred that he conducted a conscientious examination

of the record, including Appellant’s prior sentence orders, plea colloquy,

post-sentence motions, and all other documents of record.       Following that

review, counsel concluded that the present appeal is wholly frivolous.

Counsel sent to Appellant a copy of the Anders brief and petition to

withdraw, as well as a letter, a copy of which is attached to the motion. In

the letter, counsel advised Appellant that she could represent herself or that

she could retain private counsel to represent her.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago.     It sets forth the factual

and procedural history of this case and outlines pertinent case authority.

Counsel also raises one potential issue:




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       (1)    Whether the trial court abused its discretion when it
              revoked Appellant’s probation/parole and re-sentenced her
              to serve a sentence of incarceration in the State
              Correctional Institution aggregating to a minimum of three
              (3) years to a maximum of seven (7) years with credit for
              time served for appellant’s violations of probation /parole.

Anders Brief at 4.6

       Appellant asserts that the sentence imposed after the revocation of

her probation was unreasonably excessive.            Anders Brief at 9.   Appellant

maintains that her sentence is too severe because her violations were drug

related misdemeanors, and the trial court’s authority could be vindicated

with a lesser sentence.        Id. at 7-9.     Furthermore, Appellant contends the

court’s reasoning does not “adequately show how the sentence is necessary

to vindicate the [c]ourt’s authority, or how the violations show [s]he is likely

to commit a new offense.” Id. at 10.

       Appellant’s claim challenges the discretionary aspects of her sentence.

An appellant wishing to appeal the discretionary aspects of a probation-

revocation sentence has no absolute right to do so but, rather, must petition

this Court for permission to do so. Commonwealth v. Kalichak, 943 A.2d

285, 289 (Pa. Super. 2008); 42 Pa.C.S. § 9781(b). Before this Court may
____________________________________________


6
  Appellant appealed the three-to-seven-year sentence at Docket Number
CP-33-CR-116-2009 and the two-and-one-half-to-five-year sentence at
Docket Number CP-33-CR-77-2009.          However, in the Anders Brief,
Appellant challenges only the three-to-seven-year sentence at Docket
Number CP-33-CR-116-2009. The ramifications of the decision to forego
challenging the two-and-one-half-to-five-year sentence at Docket Number
CP-33-CR-77-2009 will be addressed below.



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review the merits of a challenge to the discretionary aspects of a sentence,

we must engage in a four-pronged analysis:

     [W]e 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. [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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).             See

also Pa.R.Crim.P. 708, Comment (discussing proper preservation of issues

challenging the discretionary aspect of a sentence imposed following a

revocation hearing).

     A determination as to whether a “substantial question” exists is made

on a case-by-case basis, and this Court will grant the appeal “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. Sierra, 752 A.2d 910, 912-913

(Pa. Super. 2000).     A claim that the sentence is manifestly excessive,

inflicting too severe a punishment, does present a substantial question.

Cartrette, 83 A.3d at 1038.

     Appellant has met the four-prong test required prior to our review of

the merits of a discretionary challenge to a sentence:   Appellant’s appeal

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was timely filed, Appellant preserved the issue in her post-sentence motion,

Appellant included a statement pursuant to Pa.R.A.P. 2119(f) in her brief,

and Appellant has raised a substantial question. Evans, 901 A.2d at 533;

Cartrette, 83 A.3d at 1038.         Thus, we shall address the merits of

Appellant’s claim.

      When we consider an appeal from a sentence imposed following the

revocation of probation, our standard of review is well settled:

      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. 42 Pa.C.S. § 9771(b). See also
      Commonwealth v. Gheen, 455 Pa. Super. 299, 688 A.2d
      1206, 1207 (1997) (the 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).       Also, upon sentencing following a
      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. Id., 688 A.2d at 1207-1208.
      Accord Commonwealth v. Ware, 737 A.2d 251, 254 (Pa.
      Super. 1999).

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)

(citing Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000)). It

is also well settled that the revocation of a probationary sentence is a matter

committed to the sound discretion of the trial court and that court’s decision

will not be disturbed on appeal in the absence of an error of law or an abuse

of discretion.   MacGregor, 912 A.2d at 317.      “[A]n abuse of discretion is

more than a mere error of judgment; thus, a sentencing court will not have

abused its discretion unless the record discloses that the judgment exercised

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was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-

will.”   Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (internal

quotation marks omitted).

         Upon the revocation of probation, the sentencing court has all of the

alternatives available at the time of the initial sentencing. See 42 Pa.C.S. §

9771(b); Commonwealth v. Mazzetti, 44 A.3d 58, 61 (Pa. 2012). Here,

Appellant was resentenced to total confinement.                  Sentences of total

confinement      following   the   revocation   of   probation    are   governed   by

42 Pa.C.S. § 9771.

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

              (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. § 9771(c).

         It was uncontroverted that Appellant violated the conditions of her

probation by committing and being convicted of new crimes in Clearfield

County.      N.T., 3/4/15, at 3.     As noted above, following the trial court’s

finding that Appellant violated probation, Appellant was sentenced to a term

of three to seven years of imprisonment on the original conviction, with



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credit for time served.   Id. at 8.    This sentence was within the range of

potential sentencing alternatives available to the court upon Appellant’s

original conviction. 18 Pa.C.S. § 1103(3) (providing that a person may be

sentenced to imprisonment for a term which shall not exceed seven years in

the case of a felony of the third degree). Thus, the sentencing court did not

impose an illegal sentence following the probation revocation.

      Furthermore, we cannot agree with Appellant’s claim that the sentence

was manifestly excessive or unreasonable.      At the time of sentencing, the

trial court explained the reasons for the sentence it imposed. The trial court

stated that it had repeatedly shown Appellant leniency and provided her with

opportunities to turn her life around, but instead of availing herself of those

opportunities, she failed to abide by the conditions of her probation and

opted to commit additional crimes. N.T., 3/4/15, at 8-10. The trial court

further explained its rationale in its Pa.R.A.P. 1925(a) opinion as follows:

            Pursuant to 42 Pa.C.S.A. § 9771(c), a sentence of total
      incarceration is warranted if a defendant has been convicted of
      new charges while on probation or if it is deemed to be
      necessary to vindicate the authority of the court. Both
      considerations contributed to the sentence in this case. More
      specifically, [Appellant] was convicted in Clearfield County on a
      drug violation while on probation, (Gagnon Transcript,
      03/04/2015, p. 3), and despite its earlier leniency, [Appellant]
      persisted in flouting the Court’s authority by continuing to violate
      the terms and conditions of her probation. (See id. at 7-8, 10).

            Under the circumstances, a sentence of 3-7 years is
      certainly not unreasonable, either.       As the Court noted,
      [Appellant] would be RRRI eligible at 27 months and was entitled
      to nearly 2 years’ credit [for time served], (id. at 10), which
      meant she would be eligible for parole within just a few months

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      of the date the Court sentenced her. Anything less would have
      effectively resulted in a time served sentence, which would not
      have been appropriate. [Appellant’s] conduct was a clear
      violation of her probation, and the Court had already shown
      mercy to no effect. What [Appellant] needed, therefore, was a
      sentence that entailed some period of incarceration - one that
      would convey to her that the Court would not continue to look
      the other way while she ignored her legal obligations. Her overall
      sentence of 3-7 years was designed to do precisely that and, as
      such, was not an abuse of discretion.

Trial Court Opinion, 5/20/15, at unnumbered 1-2.

      We conclude that the trial court provided a thorough and thoughtful

recitation of its reasons for the imposition of a sentence of incarceration.

Based on that rationale, the sentence of total confinement was appropriately

imposed.    Appellant’s previous conduct indicates that it is likely she will

commit another crime if she is not imprisoned, and such a sentence is

essential to vindicate the authority of the court. 42 Pa.C.S. § 9771(c)(1-3);

Fish, 752 A.2d at 923; N.T., 3/4/15, at 8-10.          Moreover, Appellant has

failed to establish that the sentencing court ignored or misapplied the law,

exercised its judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision. Commonwealth v. Mann,

957 A.2d 746, 749 (Pa. Super. 2008).          Accordingly, we conclude that the

sentence imposed by the trial court was not manifestly excessive or

unreasonable. As a result, Appellant’s claim lacks merit.

      We also have independently reviewed the record in order to determine

if counsel’s assessment about the frivolity of the present appeal is correct.

See Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

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(after determining that counsel has satisfied the technical requirements of

Anders and Santiago, this Court must conduct an independent review of

the record to determine if there are additional, non-frivolous issues

overlooked by counsel). As noted above, while Appellant appealed from the

judgments of sentence imposed at Docket Number CP-33-CR-77-2009 and

Docket Number CP-33-CR-116-2009, in the Anders Brief, she challenged

only the sentence imposed at Docket Number CP-33-CR-116-2009. Anders

Brief at 4.    However, for the reasons set forth in our discussion of the

sentence imposed at Docket Number CP-33-CR-116-2009, if Appellant had

pursued a challenge to the judgment of sentence entered at Docket Number

CP-33-CR-77-2009, we would conclude that the appeal was frivolous. The

sentence at Docket Number CP-33-CR-77-2009 was legal, it was not

excessive, and the trial court aptly explained its reasons for the sentence

imposed.

     Thus, after review of the issue raised by counsel and our independent

review of the record, we conclude that an appeal in this matter is frivolous.

Accordingly, we grant counsel’s petition to withdraw and affirm the judgment

of sentence.

     Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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