J-S44045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
             v.                           :
                                          :
ROBERT JACKSON,                           :
                                          :
                   Appellant              :            No. 225 EDA 2017

          Appeal from the Judgment of Sentence November 29, 2016
             in the Court of Common Pleas of Delaware County,
              Criminal Division, No(s): CP-23-CR-0001223-2012

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 31, 2017

        Robert Jackson (“Jackson”) appeals from the judgment of sentence

imposed following the revocation of his probation.     Additionally, Patrick J.

Connors, Esquire (“Attorney Connors”), has filed a Petition to Withdraw as

counsel and an accompanying brief pursuant to Anders v. California, 386

U.S. 738, 744 (1967). We grant Attorney Connors’s Petition to Withdraw,

and affirm Jackson’s judgment of sentence.

        On May 8, 2012, Jackson entered a negotiated guilty plea to identity

theft. The trial court sentenced Jackson to a term of 9 to 24 months in

prison, with credit for time served, followed by three years of probation.

        Jackson was subsequently convicted, on two separate dockets, of bad

checks and theft by unlawful taking.    The trial court conducted a Gagnon

II1 hearing on November 29, 2016, during which Jackson stipulated that he



1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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was in violation of his probation. The trial court sentenced Jackson to a term

of one to two years in prison, followed by one year of probation. The trial

court also ordered Jackson’s sentence to run concurrent to the sentences

imposed for the convictions giving rise to the violation.

      Jackson filed a timely Notice of Appeal. On January 11, 2017, the trial

court ordered Jackson to file a Pa.R.A.P. 1925(b) concise statement of

matters complained of on appeal.        In lieu of filing a concise statement,

Attorney Connors filed a Statement of his intention to file an Anders Brief.

Attorney Connors subsequently filed a Petition to Withdraw as counsel.

      We must first determine whether Attorney Connors has complied with

the dictates of Anders in petitioning to withdraw from representation. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc) (stating that “[w]hen faced with a purported Anders brief, this Court

may not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record and
      interviewing the defendant, counsel has determined the appeal
      would be frivolous, (2) file a brief referring to any issues in the
      record of arguable merit, and (3) furnish a copy of the brief to
      defendant and advise him of his right to retain new counsel or to
      raise any additional points that he deems worthy of the court’s
      attention. The determination of whether the appeal is frivolous
      remains with the [appellate] court.



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Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

      Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders 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.

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

      Here, Attorney Connors has complied with the requirements set forth

in Anders by indicating that he made a thorough review of the record and

determined that an appeal would be frivolous. Further, the record contains

a copy of the letter that Attorney Connors sent to Jackson, informing him of

Attorney Connors’s intention to withdraw and advising him of his rights to

proceed pro se, retain counsel, and file additional claims. Finally, Attorney

Connors’s Anders Brief meets the standards set forth in Santiago. Because

Attorney Connors has complied with the procedural requirements for

withdrawing from representation, we will independently review the record to

determine whether Jackson’s appeal is, in fact, wholly frivolous.

      In the Anders Brief, the following question is presented for our

review:   “Whether the sentence of one to two years [of] incarceration




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imposed on [] Jackson is harsh and excessive under the circumstance?”

Anders Brief at 1.2

     Jackson’s claim implicates the discretionary aspects of his sentence

following the revocation of his probation.   “Challenges to the discretionary

aspects of sentencing do not entitle an appellant to review as of right.”

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

     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 the
     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 the 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).

Id. (quotation marks and some citations omitted).

     Here, Jackson did not challenge the discretionary aspects of his

sentence at his Gagnon II hearing, nor did he file a motion to reconsider

and modify his sentence. Accordingly, Jackson’s claim is waived. See id.

(stating that “[o]bjections 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.”).




2
  Jackson did not file a separate pro se brief, nor did he retain alternate
counsel for this appeal.


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      Further, the bald claim of excessiveness set forth in Jackson’s Rule

2119(f)   Statement   does    not    raise   a   substantial   question.   See

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012) (stating

that “a bald assertion that a sentence is excessive does not by itself raise a

substantial question justifying this Court’s review of the merits of the

underlying claim.”); see also id. (concluding that appellant’s claim that his

sentence was excessive did not raise a substantial question, where he failed

to challenge a specific provision of the sentencing scheme, or cite to a

fundamental norm underlying the sentencing process that he believed was

violated).3

      Finally, our independent review discloses no other non-frivolous claims

that Jackson could raise on appeal.          Accordingly, we grant Attorney

Connors’s Petition to Withdraw, and affirm Jackson’s judgment of sentence.

      Petition to Withdraw granted. Judgment of sentence affirmed.




3
  Moreover, the trial court noted that Jackson had been doing well on parole
and probation for several years before incurring new charges, and that the
violation arose out of two new convictions. See N.T., 11/29/16, at 9, 14;
see also 42 Pa.C.S.A. § 9721(b) (providing that “[i]n every case in which
the court … resentences an offender following revocation of probation, … the
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reasons or reasons for the sentence
imposed.”); Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014)
(stating that “the stated reasons for a revocation sentence need not be as
elaborate as that which is required at initial sentencing.”). Accordingly, we
discern no abuse of discretion by the trial court in imposing a sentence well
below the statutory maximum, in favor of the Commonwealth’s
recommendation.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2017




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