J-S14044-16

                             2016 PA Super 39



COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

AARON MAURICE BYNUM-HAMILTON,

                         Appellant                   No. 1151 MDA 2015


            Appeal from the Judgment of Sentence June 5, 2015
             In the Court of Common Pleas of Lancaster County
 Criminal Division at No(s): CP-36-CR-0002550-2013, CP-36-CR-0004371-
        2009, CP-36-CR-0005240-2012, CP-36-CR-0005642-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                      FILED FEBRUARY 17, 2016


      This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Lancaster County by the Honorable Jeffrey D. Wright on

June 5, 2015, at which time Appellant was sentenced to an aggregate term

of seven years to fifteen years in prison following the revocation of his parole

and probation.    In addition, Appellant's counsel has filed a petition to

withdraw his representation and a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth

v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After a careful review, we

grant counsel's petition to withdraw and affirm Appellant's judgment of

sentence.




*Former Justice specially assigned to the Superior Court.
JS14044-16


       The relevant facts and procedural history herein are as follows:         On

September 3, 2014, Appellant participated in a video parole/probation

violation hearing. Following its determination that Appellant had knowingly

and intelligently waived his right to be personally present and that he had

consented to the use of simultaneous audio/video two-way communication in

the proceeding, the trial court remarked that serious charges had been

brought against Appellant on July 27, 2014, in Chester County, including an

attempted homicide charge. N.T., 9/3/14, at 3-4.

       Appellant’s Probation Officer1 testified that his period of supervision

with Appellant had begun on May 28, 2014, and that while Appellant

reported to his scheduled appointments on May 29th and June 11th, he failed

to report on July 2nd, July 10th, and July 16th.       Id. at 5.   Appellant tested

positive for marijuana and benzodiazepines on July 2nd, and he signed an

admission indicating he had ingested marijuana on or about May 27th. Id. at

5-6.   Due to his past history of violations resulting from new charges, his

chronic drug use, and the aggravated nature of the pending charges in

Chester County, the Probation Officer recommended that the trial court

vacate Appellant’s current parole sentence, revoke his probation, and

commit him to a state prison. Id. at 6.          The trial court informed Appellant


____________________________________________


1
   The Probation Officer’s proper name does not appear in the hearing
transcript.



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he had an “absolute right” to make a statement, and Appellant twice

indicated he had nothing else to say. Id. at 5.

      At the conclusion of the hearing, the trial court found Appellant to be

in violation of his probation and parole on Information:       4371 of 2009,

Counts 1 and 2; 5240 of 2012; 2550 of 2013; and 5642 of 2013, Count 2.

After ordering all of his probation and parole revoked, the trial court further

directed the Lancaster County Department of Probation and Parole to

prepare a Presentence Investigation (PSI) report and provide it to the court

within sixty days. The trial court also requested that the PSI report contain

an itemization of all time Appellant had spent incarcerated on each of the

dockets and counts at issue.     Appellant declined the trial court’s offer for

him to discuss the matter in confidence with defense counsel. Id. at 6-7.

      Appellant’s probation/parole violation sentencing hearing was held on

June 5, 2015.      At the outset, Probation Officer Elizabeth Buckwalter

indicated that Defense Counsel Kathleen M. Morrison, Esquire, and Appellant

had signed a stipulation form on September 3, 2014, and Attorney Morrison

stated she had received the PSI report and reviewed it with Appellant two

days earlier in Lancaster County Prison. She represented that Appellant did

not have any questions about the PSI report or concerns regarding the

information contained therein. The sentencing court informed Appellant he

had an “absolute right” to make a statement regarding counsel’s assertions;

however, Appellant declined the opportunity to do so. N.T., 6/5/15, at 2.


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       Attorney Morrison added that Appellant had been tried and sentenced

to five years to ten years in prison in Chester County;2 however, she

stressed the PSI report revealed Appellant suffered from significant mental

health issues from a young age and had been diagnosed with bipolar

disorder as a teenager. She requested that the sentencing court end county

supervision in light of the fact that Appellant would be on state supervision

for the next ten years. In the alternative, she urged the sentencing court to

run any state prison sentence it might impose upon Appellant concurrently

with the prison term he would be serving in Chester County. Id. at 3.

       In response, the sentencing court indicated that any sentence it orders

must be consistent with the law which requires it to consider the gravity of

the offenses, the protection of the public, and Appellant’s rehabilitative

needs. Id.     The sentencing court explained that it had contemplated the

nature of and circumstances surrounding the underlying offenses, the PSI

report, information provided by counsel, its independent observations and

Appellant’s history and conduct while on supervision.        Id. at 4.    The

sentencing court stressed that Appellant at age twenty-three showed

sufficient maturity and intelligence to comprehend the significance of his

actions, had worked just one day in his life, and had paid nothing toward the

fines and costs pending on Docket 4371 of 2009 for over two and one-half
____________________________________________


2
 On February 10, 2015, Appellant was convicted of one count of aggravated
assault and sentenced to five years to ten years in a state prison.



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years or toward the other three dockets. Id. The sentencing court further

highlighted Appellant’s extensive criminal record including ten juvenile

adjudications one of which involved his being tried as an adult on Docket

4371 of 2009 for a theft of firearms and that he committed this crime while

still on court-ordered juvenile supervision.

      Additionally,   the   sentencing    court   explained   that   since   turning

eighteen, Appellant had garnered five additional convictions and the instant

matter was his fifth parole violation, four of which involved his being charged

with new crimes. In addition, while on adult supervision, Appellant failed to

follow through with court-mandated evaluations or treatments and instead

continued to use illegal drugs revealing “a myriad of rule violations, defiant

and noncompliant behavior.”       Id. at 5.       After detailing the above, the

sentencing   court    stated    the   following    before     handing   down     its

aforementioned sentence:

            I have considered the extremely comprehensive and
      detailed PSI, the character of [Appellant], arguments of his
      counsel. In light of [Appellant’s] utter refusal or inability to
      comply with the terms and conditions of probation or parole that
      this Court has imposed upon him, total confinement is warranted
      and, indeed, essential to vindicate the authority of the Court.
            Conduct of [Appellant] indicates it is not just probable but
      it appears to be absolutely certain he will commit more crimes if
      given another sentence of probation or partial confinement.
            Probation has proven to be an ineffective vehicle to
      accomplish rehabilitation and an insufficient deterrent against
      further antisocial behavior. Incarceration is warranted because a
      lesser sentence would depreciate the seriousness of the
      underlying crimes and his ongoing defiance of this Court and I
      believe he is in need of treatment which can be most effectively


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        provided by his commitment to an institution in a non-
        community setting.

Id. at 5-6.     The sentencing court proceeded to resentence Appellant as

follows:

               On 4371 of 2009, 7 to 15 years, SCI, but credit for 1,489
        days; on 5240 of 2012, two and a half to five years, SCI, credit
        for 559 days; on 5642 of 2013, Count 2, two and a half to five
        years, SCI, credit for 520 days; on 2550 of 2013, unexpired
        balance of the max sentence but paroled immediately without
        petition to the detainer of the state sentences.
               This sentence is concurrent with the state sentence
        received on Chester County Docket 2669 of 2014.
               [Appellant] is to be made eligible for any drug and alcohol,
        psychological, educational and/or vocational programs at his
        assigned SCI, and a copy of the presentence investigation will be
        delivered to his assigned SCI and made part of this record as
        well.

Id. at 6.

        Appellant filed a counselled post sentence motion on June 12, 2015,

and the sentencing court denied the motion on June 15, 2015.              Appellant

filed a timely notice of appeal on July 8, 2015, and on that same day, the

sentencing court filed its Order pursuant to Pa.R.A.P. 1925.         On July 29,

2015,      appellate   counsel   filed   his   “Statement   of   Intent    to   File

Anders/McClendon Brief In Lieu of Statement of Errors Complained of on

Appeal pursuant to Pa.R.A.P. 1925(c)(4).” Anders v. California, 386 U.S.

738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In its

Answer filed on August 5, 2015, the Commonwealth indicated it would not

be filing a substantive response.




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       In its Order of August 7, 2015, upon consideration of counsel’s having

filed pursuant to Pa.R.A.P. 1925(c)(4) a Statement of Intent to File

Anders/McClendon Brief in Lieu of Statement of Errors Complained of on

Appeal and the Commonwealth’s response thereto, the sentencing court

directed the Clerk of Courts to transmit the record to this Court.

       Appellate counsel filed his petition for leave to withdraw as counsel

and Anders brief on November 16, 2015.3 We first consider that petition.

             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. Goodwin, 928
       A.2d 287, 290 (Pa. Super. 2007) (en banc). Before counsel is
       permitted to withdraw, he or she must meet the following
       requirements:

                   First, counsel must petition the court for leave to
            withdraw and state that after making a conscientious
            examination of the record, he has determined that the
            appeal is frivolous; second, he must file a brief
            referring to any issues in the record of arguable merit;
            and third, he must furnish a copy of the brief to the
            defendant and advise him of his right to retain new
            counsel or to himself raise any additional points he
            deems worthy of the Superior Court's attention.

       Santiago, 602 Pa. at 178–79, 978 A.2d at 361.FN2

       FN2. The requirements set forth in Santiago apply to cases
       where the briefing notice was issued after August 25, 2009, the
       date the Santiago opinion was filed. As the briefing notice in
       this case was issued after Santiago was filed, its requirements
       are applicable here.
____________________________________________


3
  In response, on November 25, 2015, the Commonwealth informed this
Court it would not be filing a brief herein.




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Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012).

        Herein, we have reviewed counsel’s petition for leave to withdraw,

counsel’s correspondence wherein he summarized the issues he believed

Appellant wished to raise on appeal and advised Appellant of his absolute

right to proceed pro se or with privately retained counsel, and the Anders

brief counsel prepared.4         These documents satisfy us that counsel has

complied with all of the foregoing requirements. We, therefore, turn to the

issues of arguable merit counsel presented in his Anders brief to make an

independent judgment as to whether the appeal is, in fact, wholly frivolous.

Santiago, supra.

        Appellant first questions whether his aggregate sentence of seven

years to fifteen years’ incarceration was excessive.     This issue concerns a

challenge to the discretionary aspects of Appellant’s sentence. A challenge

to the discretionary aspects of sentencing does not entitle an appellant to

review as of right.         Commonwealth v. Allen, 24 A.3d 1058, 1064

(Pa.Super. 2011)       An appellant challenging the discretionary aspects of his

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

(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)
____________________________________________


4
    Appellant has not responded to the application to withdraw as counsel.




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whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f);5 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006).

       Although counsel has not included the requisite Pa.R.A.P. 2119(f)

statement in his Anders brief herein, “[w]here counsel files an Anders

brief, this Court has reviewed the matter even absent a separate Pa.R.A.P.

2119(f) statement. Hence, we do not consider counsel's failure to submit a

Rule 2119(f) statement as precluding review of whether Appellant's issue is

frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.Super.

2015) (citations omitted). In addition, a determination of what constitutes a

substantial question must be evaluated on a case-by-case basis and such

question exists only when an appellant advances a colorable argument that

the sentencing judge's actions were either inconsistent with a specific

provision of the Sentencing Code or contrary to the fundamental norms

underlying the sentencing process. Commonwealth v. Prisk, 13 A.3d 526,

533 (Pa.Super. 2011).



____________________________________________


5
   In pertinent part, this Rule requires an appellant challenging the
discretionary aspects of his sentence to set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of the sentence; such statement shall immediately
precede the argument on the merits. Pa.R.A.P. 2119(f).



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     Upon revoking one’s 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). However, the

imposition of total confinement upon revocation requires a finding that the

defendant has been convicted of another crime, his conduct indicates it is

likely he will commit another crime if he is not imprisoned, or such a

sentence is essential to vindicate the court’s authority of the court.    42

Pa.C.S.A. § 9771(c).   Section 9721, which governs sentencing generally,

provides that 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.” Id. Failure to comply with these

provisions “shall be grounds for vacating the sentence or resentence and

resentencing the defendant.” Id. Additionally, this Court has noted that the

reasons stated for a sentence imposed should reflect the sentencing court's

consideration of the criteria of the Sentencing Code, 42 Pa.C.S.A. § 9701 et

seq., the circumstances of the offense, and the character of the offender.

Commonwealth v. DeLuca, 418 A.2d 669, 670 (Pa.Super. 1980).

     Upon our review of the sentencing transcript and as the above-quoted

language therefrom evinces, we find the sentencing court appropriately

detailed on the record its reasons for sentencing Appellant as it did. It had

the benefit of a detailed PSI report and heard defense counsel’s arguments.


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It considered Appellant’s bipolar diagnosis and juvenile adjudication history.

It found particularly troubling Appellant’s inability to abide by the terms and

conditions of his probation and parole in the past and the violent nature of

his crimes, especially those which led to the instant violation. Therefore, we

find no merit to any claim under these circumstances that Appellant’s

sentence was excessive.

      Appellate   counsel   further   directs   this    Court’s   attention   to   the

sentencing court’s failure to advise Appellant of his appeal rights on the

record. Instead, it directed defense counsel to “please take an opportunity

to explain to your client his rights to appeal after today.”        N.T., 6/5/15, at

7.   A sentencing court must inform a defendant that an appeal must be filed

within thirty days of the entry of its order.          See generally Pa.R.Crim.P.

704(c) (dealing with a trial court's duty to inform the defendant of his post-

sentencing and appellate rights and the time within which such rights must

be exercised); See also Commonwealth v. Wright, 846 A.2d 730, 735

(Pa.Super. 2004). While the sentencing court failed to apprise Appellant of

these rights on the record, defense counsel indicated it would inform

Appellant thereof and, in fact, filed a timely post sentence motion and notice

of appeal on Appellant’s behalf. As such, the trial court’s failure to articulate

Appellant’s appellate rights on the record and request that defense counsel

do so clearly did not prejudice Appellant.




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     Consequently, after an independent review of this appeal, we find

Appellant's issues to be frivolous, and we grant counsel's petition to

withdraw.

     Petition to Withdraw Granted. Judgment of Sentence Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2016




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