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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

LAHIYM J. BYRD,

                       Appellant               No. 1218 EDA 2017


        Appeal from the Judgment of Sentence February 28, 2017
           In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0002655-2008


COMMONWEALTH OF PENNSYLVANIA,              IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellee

                  v.

LAHIYM J. BYRD,

                       Appellant               No. 1219 EDA 2017


        Appeal from the Judgment of Sentence February 28, 2017
           In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0004642-2012


COMMONWEALTH OF PENNSYLVANIA,              IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellee

                  v.

LAHIYM J. BYRD,

                       Appellant               No. 1220 EDA 2017
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           Appeal from the Judgment of Sentence February 28, 2017
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004571-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 28, 2018

       Appellant, Lahiym J. Byrd, appeals from the judgment of sentence of

an aggregate term of 1 to 4 years’ incarceration, imposed after his terms of

probation/parole in three separate cases were revoked.1          On appeal,

Appellant seeks to challenge the discretionary aspects of his sentence.

Additionally, his counsel, Nicholena A. Iacuzio, Esq., seeks to withdraw her

representation of Appellant 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 Appellant’s judgment of sentence and grant

counsel’s petition to withdraw.

       The trial court summarized the pertinent facts and procedural history

of Appellant’s three cases, as follows:

             Appellant … originally pled guilty on case CP-23-CR-
       0002655-08 [(hereinafter “case 2655-08”)] on July 8, 2008[,]
       before the Honorable William R. Toal Jr. Pursuant to the plea[,]
       Appellant pled guilty to accidents involving death or personal
       injury and was sentenced to 90 days to 23 months of
       incarceration and 2 years of consecutive probation. The record


____________________________________________


*Former Justice specially assigned to the Superior Court.
1 Appellant filed separate appeals in each of his cases, which we have
consolidated herein.



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       reflects that Appellant had several Gagnon II2 hearings on this
       case in the years that followed his plea, including one in 2012,
       one in 2014, and most recently, on February 28, 2017.

             Appellant originally pled guilty on case CP-23-CR-4642-12
       [(hereinafter “case 4643-12”)] on August 9, 2012[,] before the
       Honorable Mary Alice Brennan. Pursuant to the plea[,] Appellant
       pled guilty to theft by unlawful taking and was sentenced to 2 to
       23 months of incarceration and given immediate parole. The
       record reflects that Appellant had a Gagnon II hearing in 2014
       and another on February 28, 2017[,] in this case.

            Appellant entered a nolo [contendere] plea on case CP-23-
       CR-4571-14 [(hereinafter “case 4571-14”)] on December 17,
       2014[,] before this court at which time he pled guilty to one
       count of simple assault.    He was sentenced to 2 years of
       probation. A Gagnon II hearing was held on this case on
       February 28, 2017.

             At the hearing on February 28, 2017, Appellant appeared
       before this court after he picked up two new cases and was
       found to be in violation of his probation and parole. He was
       sentenced as follows: On [case 2655-08 to] one (1) to four (4)
       years of incarceration; on [case 4642-12 to] full back time of
       552 days with immediate parole; on [case 4571-14 to] one (1)
       to two (2) years of incarceration with 45 days of credit for time
       served. All sentences were ordered to run concurrent to one
       another.

             Following the hearing, Appellant filed a motion for
       reconsideration of [his] sentence[,] which was denied, and … a
       timely Notice of Appeal was filed on April 20, 2017. Appellant
       was ordered to file a [Pa.R.A.P. 1925(b)] Statement of Matters
       Complained of on Appeal and on June 7, 2017[,] counsel
____________________________________________


2 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (directing that when a
parolee/probationer is detained pending a revocation hearing, due process
requires a pre-revocation, Gagnon I hearing be conducted to determine
that probable cause exists that a violation of parole/probation has been
committed; where a finding of probable cause is made, a second, more
comprehensive Gagnon II hearing is required before a final revocation of
parole/probation can be made).



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      complied and stated her intention to file an Anders brief in the
      Superior Court.

Trial Court Opinion, 6/22/17, at 1-2.

      On October 6, 2017, Attorney Iacuzio filed with this Court a petition to

withdraw and an Anders brief, asserting that Appellant’s sentencing

challenge is frivolous, and that he has no other non-frivolous issues he could

assert on appeal.

      This Court must first pass upon counsel’s petition to withdraw
      before reviewing the merits of the underlying issues presented
      by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
      287, 290 (Pa. Super. 2007) (en banc).

      Prior to withdrawing as counsel on a direct appeal under
      Anders, counsel must file a brief that meets the requirements
      established by our Supreme Court in Santiago. The brief 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.

      Santiago, 978 A.2d at 361. Counsel also must provide a copy of
      the Anders brief to his client. Attending the brief must be a
      letter that advises the client of his right to: “(1) retain new
      counsel to pursue the appeal; (2) proceed pro se on appeal; or
      (3) raise any points that the appellant deems worthy of the
      court[’]s attention in addition to the points raised by counsel in
      the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
      353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
      (2007).


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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”     Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      In this case, Attorney Iacuzio’s Anders brief complies with the above-

stated requirements.    Namely, she includes a summary of the relevant

factual and procedural history, she refers to portions of the record that could

arguably support Appellant’s sentencing claim, and she sets forth her

conclusion that Appellant’s appeal is frivolous. She also explains her reasons

for reaching that determination, and supports her rationale with citations to

the record and pertinent legal authority.      Additionally, attached to her

petition to withdraw, Attorney Iacuzio includes a letter written to Appellant

in which she states that she is providing him with a copy of her Anders

brief, and she informs him of the rights enumerated in Nischan.

Accordingly, counsel has complied with the technical requirements for

withdrawal.

      We will now independently review the record to determine if

Appellant’s sentencing issue is frivolous, and to ascertain if there are any

other non-frivolous claims he could pursue on appeal. The sole issue that

Attorney Iacuzio presents in her Anders brief is whether Appellant’s


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sentence is “excessive in light of the fact that he has suffered from both

significant mental and emotional health issues.”   Anders Brief at 6.    This

claim constitutes a challenge to the discretionary aspects of Appellant’s

sentence and, thus, we apply the following standard of review:

     Sentencing is a matter vested in the sound discretion of the
     sentencing judge. The standard employed when reviewing the
     discretionary aspects of sentencing is very narrow. We may
     reverse only if the sentencing court abused its discretion or
     committed an error of law. A sentence will not be disturbed on
     appeal absent a manifest abuse of discretion. In this context, an
     abuse of discretion is not shown merely by an error in judgment.
     Rather, the appellant must establish, by reference to the record,
     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. We
     must accord the sentencing court's decision great weight
     because it was in the best position to review the defendant's
     character, defiance or indifference, and the overall effect and
     nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11–12 (Pa. Super. 2007) (internal

quotations and citations omitted).

     Additionally,

     [c]hallenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. Commonwealth v.
     Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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


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            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), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
       Objections to the discretionary aspects of a sentence are
       generally waived if they are not raised at the sentencing hearing
       or in a motion to modify the                 sentence imposed.
       Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
       2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

       The determination of what constitutes a substantial question
       must be evaluated on a case-by-case basis. Commonwealth v.
       Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
       question exists “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.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

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

       Here, Attorney Iacuzio filed a timely notice of appeal, she preserved

Appellant’s sentencing claim in a post-sentence motion, and she has

included a Rule 2119(f) statement in her Anders brief to this Court.3

Therein, Attorney Iacuzio states that Appellant’s “aggregate sentence of one

to   four    years[’]    imprisonment      is   harsh    and     excessive      under   the

circumstances[,]        given   his    acceptance       of     responsibility    and    his


____________________________________________


3 We recognize, however, that “[w]here counsel files an Anders brief, this
Court has reviewed the matter even absent a separate [Rule] 2119(f)
statement.” Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184
(Pa. Super. 2016) (quoting Commonwealth v. Ziegler, 112 A.3d 656, 661
(Pa. Super. 2015) (citations omitted)).



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mental/emotional health issues.”      Anders Brief at 4.     Attorney Iacuzio

concludes that this claim does not present a substantial question for our

review. Id. at 5.

      We disagree.     Our Court has held that a claim that “consecutive

sentences [are] unduly excessive, together with [a] claim that the court

failed to consider [the defendant’s] rehabilitative needs and mitigating

factors upon fashioning his sentence, presents a substantial question.”

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015).                We

recognize that Appellant did not receive consecutive sentences in this case;

however, he argues that the aggregate term of incarceration is excessive,

given his need for mental health rehabilitation, and in light of the mitigating

fact that he took responsibility for his criminal conduct.    We will liberally

construe this argument as constituting a substantial question for our review.

See id.; see also Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (holding that an

excessive sentence claim, combined with an assertion that the court did not

consider mitigating factors, raises a substantial question for our review)

(citation omitted); Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.

Super. 2013) (determining that an appellant’s claim that the court failed to

consider his rehabilitative needs and the nature and circumstances of the

offense in fashioning its sentence raised a substantial question).




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       Nevertheless, we agree with Attorney Iacuzio that Appellant’s claim is

frivolous.    We begin by noting that Attorney Iacuzio vigorously argued at

Appellant’s    revocation/resentencing   hearing   that   his   criminal   conduct

stemmed from his mental health issues, and that with treatment, rather

than    incarceration,    he    could     be   rehabilitated.         See     N.T.

Revocation/Resentencing Hearing, 2/28/17, at 10-16. In this vein, Attorney

Iacuzio detailed for the court Appellant’s “history of psychiatric mental

health issues.”    Id. at 10-12.   She informed the court that Appellant had

previously “never wanted to admit” that he suffered from these issues, but

that he now has “come to terms” with his mental illness and has “done a

complete turnaround.” Id. at 10, 15. In light of Appellant’s improvement,

and willingness to seek further help, Attorney Iacuzio argued that he should

be placed on electronic home monitoring, with “the caveat” that he enter an

inpatient psychiatric program within seven days of beginning that sentence.

Id. at 10-12, 13.

       In rejecting counsel’s request, the trial court pointed out that

Appellant’s most recent criminal offense, which formed the basis for the

revocation of his parole/probation, was aggravated assault, premised on

Appellant’s assaulting a security guard at a mental hospital at which he had

been involuntarily committed.       Id. at 6-7, 13.       Additionally, the court

questioned whether the reason for Appellant’s recent ‘turnaround’ could be




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the fact that he was currently in a “structured situation” of incarceration.

Id. at 15. Attorney Iacuzio conceded that it was “a possibility.” Id. at 16.

      The court also considered the Commonwealth’s position that the state

prison system has “multiple different programs” to assist Appellant with his

mental health issues, as well as “more equipment [to] handle his level of

violence when he is in one of his episodes.” Id. at 18. The Commonwealth

stressed that Appellant had committed multiple parole/probation violations

and was given “multiple opportunities” to address his issues in the past, yet

he failed to do so. Id. at 19. Indeed, the Commonwealth maintained that

Appellant’s “behaviors continue escalating and are not getting any better[,]”

as evidenced by his most recent aggravated assault conviction.       Id. at 9.

Accordingly, the Commonwealth asked for an aggregate sentence of 2 to 4

years’ incarceration. Id. at 4.

      The court also listened to Appellant’s statement before sentencing.

Appellant informed the court that he was attending Alcoholics Anonymous

and Narcotics Anonymous meetings and seeking help for his mental health

issues. Id. at 18. He also discussed that his girlfriend and his mother were

very sick, and he needed to help care for his children.         Id. at 16-17.

Appellant stressed that he believed if he went into state prison, it would “put

[him] in a deeper darker place and depression.” Id. at 18.

      Ultimately, the trial court determined that a sentence of incarceration

in a state prison was appropriate for Appellant. The court clearly premised


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Appellant’s sentence on the treatment options available in state prison

beyond that which was available to county prisoners. See id. at 22-23. The

court also stressed that Appellant had committed several violations of his

parole/probation, and it took into account the Commonwealth’s argument

that Appellant’s “level of violence” could best be handled in a state prison,

rather than in a county jail or by parole/probation officers. Id. at 20, 23.

Based on all of these considerations, the court imposed a sentence of one to

four years’ incarceration.

      We ascertain no abuse of discretion in the trial court’s sentencing

decision. The court imposed a minimum term of one year of incarceration,

which was lower than that requested by the Commonwealth. Moreover, the

court clearly concluded that the programs offered in state prison would

assist Appellant’s rehabilitation better than county prison, and that Appellant

posed too great a risk to himself and the community to be released on

electronic home monitoring, as evidenced by his repeated violations and his

most recent aggravated assault conviction. As Attorney Iacuzio points out,

Appellant’s “new sentence falls within the standard range of the minimum

sentences suggested by the [s]entencing [g]uidelines, even though those

[g]uidelines are inapplicable.”   Anders Brief at 6 (citing 204 Pa. Code §

303.1(b) (directing that the sentencing guidelines do not apply to sentences

imposed after the revocation of parole or probation)). Given the totality of

these circumstances, and the factors considered by the trial court, we


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conclude that Appellant’s sentence was not an abuse of the court’s

discretion.    Accordingly, we agree with Attorney Iacuzio that this issue is

frivolous.

      Additionally, after independently reviewing the record, we find no

other, non-frivolous issues that Appellant could raise herein. Therefore, we

affirm Appellant’s judgment of sentence and grant Attorney Iacuzio’s petition

to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

      Judge Panella joins this memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/18




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