J-S47026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JORDEN JENE WALTERS                        :
                                               :
                       Appellant               :   No. 444 MDA 2019

       Appeal from the Judgment of Sentence Entered February 14, 2019
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0000699-2014


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 06, 2019

       Appellant Jorden Jene Walters appeals from the judgment of sentence

imposed following the revocation of his county intermediate punishment

sentence.     Appellant’s counsel has filed a petition to withdraw and an

Anders/Santiago brief.1 We affirm and grant counsel’s petition to withdraw.

       The trial court summarized the underlying procedural history of this

matter as follows:

       On June 16, 2014, Appellant was sentenced to three years’
       probation with respect to a consolidated count of criminal
       conspiracy to receive stolen property. The three years was to be
       served under the supervision of the Pennsylvania Board of
       Probation and Parole (PBPP) and to run consecutive to Appellant’s
       state sentence in a related case.


____________________________________________


1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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     Appellant’s period of probation began on January 22, 2017 and
     would have expired on January 22, 2020. He completed max out
     sentences on two separate counts of statutory sexual assault. He
     had consensual sexual intercourse with the same 14 year old when
     he was 18 years old on two separate occasions. He received a
     one and one-half (1½) to three (3) year period of incarceration.
     During his incarceration, he did not complete any sexual offender
     programming and instead maxed out.

     On February 2, 2017, a hearing was held to determine whether
     Appellant should be subject to the conditions, special conditions
     and supplemental conditions for sexual offenders. The court
     noted that since the purpose of probation is rehabilitative and
     since Appellant may pose a risk without having undergone any
     appropriate programming, assessment or treatment, the
     imposition of the conditions was appropriate under the
     circumstances. Complying with the conditions would, in the
     court’s opinion, enhance Appellant’s rehabilitation regardless of
     the crimes for which he was presently under supervision.

     Appellant did not do particularly well on probation and a bench
     warrant was issued for his arrest on March 22, 2018 for failing to
     report as directed. He was apprehended and the bench warrant
     was vacated on April 19, 2018. By Order dated May 16, 2018, the
     court directed that Appellant be transported from the Lycoming
     County Prison to the Cove Forge treatment facility to begin an
     inpatient drug and alcohol treatment program.

     The conduct which led to Appellant being sent to Cove Forge
     included his absconding, as well as using methamphetamines and
     other controlled substances. Unfortunately, he was discharged
     from Cove Forge. When officials went to the facility to detain
     Appellant, he absconded yet again.

     Appellant appeared before the court on July 12, 2018.      A final
     hearing was scheduled for August 20, 2018.

     At the August 20, 2018 hearing, Appellant admitted to the
     violations.    He admitted to possessing a small amount of
     marijuana and drug paraphernalia, which formed the basis of a
     prior conviction. He admitted that he absconded from supervised
     bail after his home plan was revoked. He admitted that while he
     was absconding he was using methamphetamines and other
     controlled substances. He admitted that when officers came to
     pick him up at the facility, he did not comply with the directives
     but, instead, he walked out of the door to the deputy sheriffs. He

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     admitted that once he was at the inpatient treatment facility and
     was informed that the “cops” or adult probations officers were
     present, he ran approximately five miles until he was
     apprehended.

     At the time, the court determined not to sentence Appellant but
     rather to request additional information. Appellant’s history was
     replete with substance abuse issues. In April of 2018 he was
     placed on the jail to treatment program. Previously, in February
     of 2018 the court placed him on supervised bail with the
     understanding that he undergo an assessment, and be placed on
     a drug patch.      Appellant’s history of substance abuse and
     treatment certainly would be relevant at sentencing.           On
     September 21, 2018, the court resentenced Appellant on the
     consolidated count of receiving stolen property to a five year
     period of Intermediate Punishment with the first six months to be
     served at the Lycoming County Work Release Facility.

     A condition of Appellant’s Intermediate Punishment was that he
     attend and complete the Lycoming County Drug Court Program,
     while he was at the work release facility to continue to actively
     participate in NA/AA groups as well as outpatient counseling
     through Crossroads Drug and Alcohol group, and that he not
     commit any misconducts while at the work release facility.

     The court specifically advised Appellant that it wanted to give him
     the benefit of the doubt and the opportunity to recover
     appropriately from his decades long substance abuse disorder.
     The court noted that Appellant’s behaviors, however, threatened
     the safety of the community. The court specifically noted that
     while it expected setbacks while Appellant was on the Drug Court
     Program, if Appellant was removed from the Drug Court Program
     and brought before the court for resentencing, the court would in
     all likelihood impose a significant period of sate incarceration.

     Not long thereafter, Appellant was again in front of the court. On
     February 14, 2019, based upon Appellant’s counseled admissions,
     the court found that Appellant violated the terms of his
     Intermediate Punishment by refusing to be placed onto the Drug
     Court program, by not actively participating in NA/AA group at the
     work release facility, by committing numerous misconducts while
     at the work release facility, and at least twice committing
     behaviors that returned him to the Lycoming County Prison.

     After considering all of the relevant sentencing factors, the court
     sentenced Appellant to a period of state incarceration the

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      minimum of which was two years and the maximum of which was
      five years. Appellant was given credit for time served and made
      eligible for the State Motivational Boot Camp Program.

      Appellant filed a motion for reconsideration which was denied by
      order of court dated February 25, 2019. Appellant filed a notice
      of appeal on March 12, 2019. In response to the court’s Rule
      1925(b) Order, Appellant filed a concise statement on March 21,
      2019, asserting two issues: (1) the court abused its discretion
      when imposing the sentence; and (2) an Anders brief was
      expected to be filed.

Trial Ct. Op., 4/3/19, at 1-4.

      On July 3, 2019, counsel filed an Anders/Santiago brief and a separate

petition to withdraw. Counsel’s withdrawal petition indicates that she sent a

copy of the Anders brief to Appellant, along with a letter advising Appellant

of his right to proceed pro se or with new, privately retained counsel.

Appellant has not filed a pro se brief or a counseled brief with new counsel.

      Counsel’s Anders/Santiago brief identifies the following issues:

      1. Did the trial court abuse its discretion when revoking
         Appellant’s intermediate punishment (IP) sentence and
         resentencing Appellant to two (2) to five (5) years confinement
         in a state correctional institution; a sentence that fails to
         consider the history, characteristics, and rehabilitative needs
         of Appellant?

      2. Should an application to withdraw as counsel be granted where
         counsel has investigated the possible grounds of appeal and
         finds the appeal frivolous?

Anders/Santiago Brief at 4.

      “When 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.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.


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Super. 2008) (citation omitted).    Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to

withdraw stating that, after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to the appellant; and (3) advising the appellant that he has

the right to retain private counsel, proceed pro se, or raise additional

arguments that the appellant considers worthy of the court’s attention. See

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

banc).

      Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

      (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.

      Only after determining that counsel has satisfied these technical

requirements, may this Court “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); accord Commonwealth v. Yorgey,

188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

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         Here, counsel has complied with the procedures for seeking withdrawal

by filing a petition to withdraw, sending Appellant a letter explaining his

appellate rights, and supplying Appellant with a copy of the Anders/Santiago

brief.       See   Goodwin,      928   A.2d   at   290.     Moreover,      counsel’s

Anders/Santiago brief substantially complies with the requirements of

Santiago. Counsel includes a summary of the relevant factual and procedural

history, refers to the portions of the record that could arguably support

Appellant’s claims, and sets forth the conclusion that the appeal is frivolous.

Accordingly, we conclude that appointed counsel has met the technical

requirements of Anders and Santiago, and we will proceed to address the

issue raised in the Anders/Santiago brief.

         The first issue identified by counsel suggests that the trial court abused

its discretion by sentencing Appellant to confinement in a state correctional

institution.     Anders/Santiago at 11.         Specifically, counsel notes that

Appellant believes his sentence is “manifestly excessive” because the trial

court failed to “fully consider Appellant’s characteristics, [the] nature of the

offenses and violations, and his rehabilitative needs.”       Id. at 10.    Counsel

submits that, based on mitigating factors, Appellant offers that “confinement

in a county prison, or an alternative form of county restorative sanction, is

more appropriate.” Id. at 12. Counsel states that she has “reviewed the

record multiple times [and] diligently investigated any possible grounds for

appeal” but “finds the appeal to be frivolous.” Id. at 14.


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      “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must 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
      [complies with] 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.[] § 9781(b).

Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016) (citation

omitted).

      Here, Appellant timely filed a notice of appeal, preserved his claim in a

post-sentence motion, and included a concise statement of reasons relied

upon for allowance of appeal in his brief. See id. Additionally, a claim that

the trial court imposed an excessive sentence by failing to consider all relevant

sentencing factors may present a substantial question. See Commonwealth

v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015).

      In matters involving the discretionary aspects of a sentence, our

standard of review is as follows:

      Sentencing is a matter vested within the discretion of the trial
      court and will not be disturbed absent a manifest abuse of
      discretion. An abuse of discretion requires the trial court to have
      acted with manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support so as to be clearly
      erroneous.




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Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (citation

omitted); see also Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa.

Super. 1999) (stating that “[i]t is essential that the court maintain the ability

to incarcerate persons for whom intermediate punishment is no longer a viable

means of rehabilitation”). “[T]his Court’s scope of review in an appeal from a

revocation   sentencing    includes    discretionary   sentencing    challenges.”

Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en

banc).

      The statute governing the modification or revocation of county

intermediate punishment provides:

      § 9773. Modification or revocation of county intermediate
      punishment sentence

                                   *    *    *

      (b) Revocation.—The court may revoke a sentence of county
      intermediate punishment upon proof of a violation of specific
      conditions of the sentence. Upon revocation and subject to
      section 9763(d), the sentencing alternatives available to the court
      shall be the same as the alternatives available at the time of initial
      sentencing. . . .

      (c) Hearing required.—A court shall not revoke or increase the
      conditions of a sentence of county intermediate punishment
      without a hearing at which the court shall consider the record of
      the initial sentencing proceeding as well as the conduct of the
      defendant while serving a sentence of county intermediate
      punishment.

42 Pa.C.S. § 9773.      We have explained that Section 9773(b)’s “rule of

resentencing is analogous to that set forth for resentencing following

revocation of probation.” Commonwealth v. Banks, 198 A.3d 391, 397 (Pa.


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Super. 2018) (citation omitted); see also 42 Pa.C.S. § 9771 (governing the

modification or revocation of an order of probation).

      When imposing a sentence following revocation, the trial court must

consider the sentencing factors contained in 42 Pa.C.S. § 9721(b).          See

Cartrette, 83 A.3d at 1040-41; Derry, 150 A.3d at 995. Specifically, the

trial court must follow the principles “that the sentence imposed should call

for confinement that is consistent with the protection of the public, the gravity

of the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” See Derry, 150

A.3d at 993 (quoting Cartrette, 83 A.3d at 1040-41) (emphasis omitted);

see also 42 Pa.C.S. § 9721(b).

      However, the trial court “need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statutes in

question.” Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014). As the

Pennsylvania Supreme Court explained:

      [S]ince the defendant has previously appeared before the
      sentencing court, the stated reasons for a revocation sentence
      need not be as elaborate as that which is required at initial
      sentencing. The rationale for this is obvious. When sentencing is
      a consequence of the revocation of probation, the trial judge is
      already fully informed as to the facts and circumstances of both
      the crime and the nature of the defendant, particularly where, as
      here, the trial judge had the benefit of a [pre-sentence
      investigation report (PSI)] during the initial sentencing
      proceedings.

Id. at 28 (citation omitted).    Where a PSI exists, we “presume that the

sentencing judge was aware of the relevant information regarding the

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defendant’s character and weighed those considerations along with mitigating

statutory factors.” Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa.

2007) (citation omitted).

      Here, at sentencing, Appellant admitted to several violations of his

county IP sentence. Specifically, the trial court noted that Appellant failed to

enter the Drug Court Program, did not participate in NA/AA groups at the work

release facility, and committed “numerous misconducts while at the work

release facility, at least twice causing him to be sent back to the Lycoming

County Prison.” Trial Ct. Order, 2/14/19, at 1.

      In its Rule 1925(a) opinion, the trial court further explained that

      [Appellant’s] . . . history of violations before [the trial] court was
      long and extensive. Appellant absconded on more than one
      occasion, continued to use controlled substances, was removed
      from an inpatient treatment facility, took probation officers on a
      five mile fleeing and pursuit, engaged in violations of the pre-
      release facility causing him to be removed and returned to the
      county prison and causing him to be ineligible for the Drug
      Treatment Court Program.

                                   *     *      *

      Contrary to Appellant’s contentions, the sentence was not
      manifestly unreasonable. The record clearly shows that the court
      took several factors into consideration when formulating the
      sentence. The court considered all of the relevant sentencing
      factors, Appellant’s statement, the arguments of counsel, the
      court’s history with Appellant, Appellant’s prior pre-sentence
      reports, Appellant’s supervision reports, and Appellant’s failure to
      participate in his own rehabilitation. It imposed an individualized
      sentence consistent with the protection of the public, the gravity
      of the offenses to the extent they impacted any victims and the
      community, and Appellant’s rehabilitative needs. The court was



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      aware of all of the relevant information and weighed the
      considerations along with the factors raised by Appellant.

                                 *     *      *

      The reasoning behind the court’s sentence was clear. All of the
      court’s efforts to assist Appellant in his rehabilitation failed.
      Appellant continued to act out, continued to disobey authority,
      continued in his failure to obtain treatment, and continued to
      disobey court orders. Clearly, the sentence was designed to
      vindicate the court’s authority, to prevent Appellant from
      relapsing and to prevent Appellant from committing other criminal
      behaviors.

      Unlike what Appellant may think, sentencing is not solely about a
      defendant and his needs to change. Certainly, in this court’s
      humble opinion, sentences might reflect more weight on individual
      rehabilitation, but as time passes and a defendant’s misconducts
      and behaviors continue, more weight must be placed on
      protecting the public, vindicating the authority of the court and
      reflecting the seriousness of a defendant’s conduct.

      In this case, Appellant made his choice. He was given opportunity
      after opportunity to get the help that he needed, to change his
      behaviors and not be locked up. The court specifically admonished
      Appellant as to the consequences of his behaviors if he chose to
      continue them.       The court’s sentence was reasoned and
      appropriate. Given the many opportunities that Appellant had,
      the court would even conclude that it was Appellant who
      sentenced himself.

Trial Ct. Op. at 5-8.

      Following our review of the record, we agree with counsel’s assessment

that Appellant’s issue is frivolous. At sentencing, the trial court considered

the Section 9721(b) sentencing factors, including Appellant’s rehabilitative

needs.   The trial court also considered Appellant’s overall history and his

conduct while on supervision. See 42 Pa.C.S. § 9773(c). Ultimately, the trial

court concluded that a state prison sentence was necessary in light of


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Appellant’s repeated probation violations.     See Derry, 150 A.3d at 993.

Further, we find no abuse of discretion in the trial court’s decision to impose

a sentence of two to five years’ imprisonment. See Serrano, 727 A.2d at

1170. Accordingly, there is no basis to disturb the trial court’s sentence. See

Schutzues, 54 A.3d at 98.

      In the second issue, counsel asserts that there are no other non-

frivolous issues to be raised on appeal.     Anders/Santiago at 13. Having

independently reviewed the record, we agree with counsel’s conclusion and

discern no other non-frivolous issues that have been preserved for review.

See Flowers, 113 A.3d at 1250.

      Judgment of sentence affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/2019




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