J-S58034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
ALFRED STOUDT                           :
                                        :
                  Appellant             :         No. 427 MDA 2017

         Appeal from the Judgment of Sentence February 13, 2017
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0000690-2014

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
ALFRED STOUDT                           :
                                        :
                  Appellant             :         No. 428 MDA 2017

         Appeal from the Judgment of Sentence February 13, 2017
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0002416-2002


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                   FILED DECEMBER 27, 2017

     Appellant, Alfred Stoudt, appeals from the judgment of sentence

entered in the Berks County Court of Common Pleas, following revocation of

his probation. We affirm and grant counsel’s petition to withdraw.

     The relevant facts and procedural history of this case are as follows.

        At    Docket    CP-06-CR-0002416-2002    (“2416-02”),
        [Appellant] pled guilty to three counts of Theft By
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           Deception-False Impression on [October 21, 2002].[1]
           Judge Ludgate, now retired, sentenced Appellant to not
           less than nine (9) nor more than twenty-three (23)
           months’ incarceration, and fourteen (14) years’ probation.
           No further action was needed on this docket for several
           years.

           In 2015, Appellant was arrested on new charges related to
           sexual offenses. On March 31, 2015, at Docket CP-06-CR-
           0000690-2014 (“690-14”), [Appellant] pled guilty to two
           charges, indecent assault and stalking.[2] As pursuant to
           the Commonwealth’s procedure with sexual offenses,
           sentencing was deferred until the Pennsylvania Sexual
           Offender Assessment Board could evaluate Appellant. On
           July 16, 2015, [at docket 690-14, the court] sentenced
           [Appellant] to 364 to 729 days’ incarceration to be
           followed by five (5) years’ probation. [Appellant] was
           found not to be a sexually violent predator.

           Appellant’s new conviction resulted in a violation of the
           terms of his probation, which had been imposed at 2416-
           02.    On September 21, 2015, following Appellant’s
           admission to his probation violation, [the court] sentenced
           him to an additional seven (7) years’ probation, to
           commence at the expiration of the five (5) years’ probation
           given at 690-14.

           Once paroled from his sentence of incarceration at 690-14,
           Appellant violated the terms of his parole and probation. A
           [Gagnon II] hearing was held and Appellant admitted
           these violations on June 23, 2016. In an attempt to avoid
           a state sentence, Appellant was sentenced in two parts. At
           part one of the stalking charges [Appellant] was
           incarcerated for a period of 77 days to 23 months, which
           was a time served sentence. At part two of the stalking
           charges, [Appellant] received three years’ probation
           consecutive to part one.

____________________________________________


1   18 Pa.C.S.A. § 3922(a)(1).

2   18 Pa.C.S.A. §§ 3126(a)(8), 2709.1(a)(2), respectively.



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        The instant matter began on November 30, 2016[,] and
        was based on averments that Appellant had failed to
        comply with a special condition of his parole/probation,
        failure to comply with sex offender treatment. A formal
        [Gagnon II] hearing was held for this matter on February
        13, 2017. After hearing testimony, [the court] found that
        Appellant was in violation of the terms of his parole and
        probation. Resultant from this finding, at 690-14 part 1,
        Appellant’s parole was revoked and [Appellant] was
        recommitted to serve the maximum sentence originally
        imposed or until such time as [Appellant] could present a
        suitable parole plan.    Additionally, at part two of the
        stalking charges, [Appellant] was sentenced to a period of
        incarceration of one (1) to three (3) years. Concurrent
        with this period of incarceration, at 2416-02, [the court]
        sentenced Appellant to a period of incarceration of one (1)
        to three (3) years.

        Following sentencing, a timely [post-sentence] motion was
        filed on both dockets. [The court] denied both motions on
        February 27, 2017.      Appellant then [timely] filed two
        appeals, one for each docket, on [March 8, 2017].
        Subsequently, Appellant [timely] filed two concise
        statements of errors pursuant to Rule 1925(b) of the
        Pennsylvania Rules of Appellate Procedure.

(Trial Court Opinion, filed May 4, 2017, at 1-2 unpaginated). This Court sua

sponte consolidated Appellant’s appeals on March 23, 2017.     On June 22,

2017, Appellant’s counsel filed a motion to withdraw and an Anders brief.

     As a preliminary matter, appellate counsel seeks to withdraw her

representation 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).    Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are


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wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.              Substantial compliance

with these requirements is sufficient.             Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.”    Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[3] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
____________________________________________


3   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that
         arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [I]n 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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a conscientious review of the record and

concluded the appeal is wholly frivolous.    Counsel also supplied Appellant

with a copy of the withdrawal petition, the brief, and a letter explaining

Appellant’s right to proceed pro se or with new privately-retained counsel to

raise any additional points Appellant deems worthy of this Court’s attention.

In her Anders brief, counsel provides a summary of the facts and

procedural history of the case.   Counsel refers to facts in the record that

might arguably support the issues raised on appeal and offers citations to

relevant law. The brief also provides counsel’s reasons for concluding that

the appeal is frivolous.   Thus, counsel has substantially complied with the

requirements of Anders and Santiago.




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     Appellant has filed neither a pro se brief nor a counseled brief with

new privately-retained counsel.   We will review the issues raised in the

Anders brief:

        WHETHER APPELLANT’S SENTENCE TO BE RECOMMITTED
        TO SERVE THE MAXIMUM SENTENCE ORIGINALLY
        IMPOSED FOLLOWED BY A SENTENCE OF NOT LESS THAN
        ONE NOR MORE THAN THREE YEARS TO THE BUREAU OF
        CORRECTIONS    FOR  CONFINEMENT     IN  A  STATE
        CORRECTIONAL FACILITY WAS MANIFESTLY EXCESSIVE,
        CLEARLY UNREASONABLE, AND CONTRARY TO THE
        FUNDAMENTAL NORMS UNDERLYING THE SENTENCING
        CODE GIVEN THE CIRCUMSTANCES OF THE CASE, NAMELY
        THE TECHNICAL NATURE OF THE VIOLATIONS AS WELL AS
        APPELLANT’S    ADVANCED     AGE    AND    HEALTH
        CONDITIONS[?]

        WHETHER THE SENTENCING COURT ERRED AND ABUSED
        ITS DISCRETION IN DENYING APPELLANT’S POST
        SENTENCE MOTION FOR MODIFICATION OF SENTENCE,
        WHERE SUCH DENIAL WAS CONTRARY TO THE GENERAL
        PRINCIPLES UNDERLYING THE SENTENCING CODE, IN
        THAT THE PROTECTION OF THE PUBLIC, THE GRAVITY OF
        THE OFFENSE AS IT RELATES TO THE IMPACT ON THE
        LIFE OF THE VICTIM AND THE COMMUNITY, AND
        APPELLANT’S INDIVIDUAL REHABILITATIVE NEEDS WERE
        NOT CONSIDERED WHERE LESS RESTRICTIVE MEANS TO
        UPHOLD THE PRINCIPLES OF THE SENTENCING CODE ARE
        AVAILABLE GIVEN APPELLANT’S ADVANCED AGE AND
        HEALTH CONDITIONS AS WELL AS THE TECHNICAL
        NATURE OF THE VIOLATION[?]

(Anders Brief at 7).

     When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)


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(en banc) (explaining that, notwithstanding prior decisions which stated our

scope of review in revocation proceedings is limited to validity of

proceedings and legality of sentence, we unequivocally hold that this Court’s

scope of review on appeal from revocation sentencing also includes

discretionary sentencing challenges).

      Appellant argues the court ignored the sentencing factors set forth at

42 Pa.C.S.A. § 9721(b), which requires the court to consider 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 Appellant’s rehabilitative needs.

Specifically, Appellant insists the court ignored the rehabilitative needs of an

87-year-old man with numerous medical problems. Appellant contends staff

at his treatment facility told him that if he could not afford to pay for

treatment, then he should not attend treatment sessions. Appellant admits

this misunderstanding resulted in a technical violation, but he maintains his

attendance at treatment sessions over a six-month period shows his

willingness to engage in rehabilitation. Appellant submits the court violated

fundamental    fairness   under   the   Sentencing   Code,   which   creates   a

substantial question regarding the appropriateness of the sentence.

      Appellant asserts he does not meet the standard required for a

sentence of total confinement under the three prongs of 42 Pa.C.S.A. §

9771(c).   Appellant states he did not commit a new crime, his age and

medical conditions indicate he is unlikely to commit a new crime, and


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imprisonment for an ill, elderly man is not essential to vindicate the court’s

authority.    Appellant complains the court abused its discretion when it

resentenced Appellant following revocation of probation.             As presented,

Appellant’s issues challenge the discretionary aspects of his sentence.4 See

Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (explaining

claim that sentence is manifestly excessive challenges discretionary aspects

of   sentencing);     Commonwealth             v.   Cruz-Centeno,   668   A.2d   536

(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)

(stating allegation court ignored mitigating factors challenges discretionary

aspects of sentencing).

        When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). This Court must evaluate what constitutes a substantial

question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825

(Pa.Super. 2007).       A substantial question exists “only when the appellant

advances a colorable argument that the sentencing judge’s actions were

____________________________________________


4 Appellant preserved this claim in his motion for modification of sentence
and counsel included a statement pursuant to Pa.R.A.P. 2119(f) in her
Anders brief.



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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, 913 (Pa.Super. 2000).

      A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

a substantial question exists “only where the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process….”        Id.   See, e.g., Cartrette, supra (indicating claim that

revocation court ignored appropriate sentencing factors raises substantial

question).    An allegation that the sentencing court failed to consider a

specific mitigating factor, however, does not necessarily raise a substantial

question.    Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001)

(holding claim that sentencing court ignored appellant’s rehabilitative needs

failed to raise substantial question).

      In    the    context   of   probation   revocation   and   resentencing,   the

Sentencing Code provides, in pertinent part:

           § 9771.       Modification or revocation of order of
           probation

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              (a) General rule.—The court may at any time
           terminate continued supervision or lessen or increase the
           conditions upon which an order of probation has been
           imposed.

              (b) Revocation.—The court may revoke an order of
           probation upon proof of the violation of specified conditions
           of the probation.       Upon revocation the sentencing
           alternatives available to the court shall be the same as
           were available at the time of initial sentencing, due
           consideration being given to the time spent serving the
           order of probation.

              (c) Limitation       on      sentence        of      total
           confinement.—The court shall not impose a sentence of
           total confinement upon revocation 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.A. § 9771(a)-(c).      “The reason for revocation of probation need

not necessarily be the commission of or conviction for subsequent criminal

conduct.    Rather, this Court has repeatedly acknowledged the very broad

standard that sentencing courts must use in determining whether probation

has been violated.”       Commonwealth v. Colon, 102 A.3d 1033, 1041

(Pa.Super. 2014), appeal denied, 631 Pa. 710, 109 A.3d 678 (2015).

     “[T]he revocation of a probation sentence is a matter committed to the


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

2006).    Following the revocation of probation, the court may impose a

sentence of total confinement if any of the following conditions exist: the

defendant has been convicted of another crime; the conduct of the

defendant indicates it is likely he will commit another crime if he is not

imprisoned; or, such a sentence is essential to vindicate the authority of the

court. See 42 Pa.C.S.A. § 9771(c).

      Pursuant to Section 9721(b), “the court shall follow the general

principle 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.”        42 Pa.C.S.A. § 9721(b).   “[T]he

court shall make as 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.   Nevertheless, “[a] sentencing court need not undertake a

lengthy     discourse   for   its   reasons    for   imposing   a   sentence….”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal

denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, “the record as a whole

must reflect the sentencing court’s consideration of the facts of the crime

and character of the offender.” Id. See also Commonwealth v. Carrillo-


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Diaz, 64 A.3d 722 (Pa.Super. 2013) (explaining where revocation court

presided over defendant’s no contest plea hearing and original sentencing,

as well as his probation revocation hearing and sentencing, court had

sufficient information to evaluate circumstances of offense and character of

defendant when sentencing following revocation).

      Here, the court explained its revocation sentencing rationale as

follows:

           Appellant claims that the [c]ourt erred and abused its
           discretion because of the technical nature of the violations
           and Appellant’s advanced age and health conditions.
           However, the record is clear that [the court] considered
           such factors among several others. [The court] stated:

              I have taken into account — I’ve been the judge on
              this case since it started so I’m well familiar with the
              general background of the case, the disposition of
              the case, I was the judge when the violations from
              last summer were adjudicated and I’m here today in
              the continuing saga. I’ve taken into account the
              information that I have received both from the
              testimony that was heard [at the February 13, 2017
              Gagnon II hearing] and from Appellant.

           By this statement, [the court] included [its] previous
           knowledge of the case and [its] prior decisions made in
           sentencing.      Additionally, by taking into account
           [Appellant’s] testimony [the court] considered his
           advanced age and health conditions.          [Appellant] only
           moments before, in his allocution, made statements about
           his poor hearing and use of a pacemaker. The [c]ourt did
           not believe it necessary to repeat this testimony. Also, the
           [c]ourt, having just completed the formal [Gagnon II]
           hearing, was well aware of the technical nature of the
           violations, which [the court] considered during sentencing.

(Trial Court Opinion, supra, at 3-4 unpaginated) (internal citations omitted).


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We see no reason to disrupt the court’s analysis. See MacGregor, supra.

     Additionally, Appellant’s complaint that the sentencing court did not

adequately consider specific mitigating factors (his age and medical

conditions) and his bald claim of sentence excessiveness arguably do not

raise substantial questions meriting review.   See Mouzon, supra; Berry,

supra.      Nevertheless, we observe the revocation court presided over

Appellant’s original sentencing on docket number 690-14, and his first

violation of probation (“VOP”) under docket number 2416-02.       During the

Gagnon II hearing on February 23, 2017, the Commonwealth presented

evidence of Appellant’s technical VOP for failure to attend sex offender

treatment. The court stated it was familiar with the general background of

the case and took into account Appellant’s testimony about his age and

health conditions. The court subsequently revoked Appellant’s probation and

resentenced him under both dockets. The record as a whole makes clear the

revocation court considered the facts of Appellant’s case and his character

per Section 9721(b), and set forth adequate reasons to justify the VOP

sentence.    See Carrillo-Diaz, supra; Crump, supra.        The record also

confirms the court imposed a sentence of total confinement consistent with

Section 9771(c). See 42 Pa.C.S.A. § 9771(c). See also Commonwealth

v. Malovich, 903 A.2d 1247 (Pa.Super. 2006) (holding record evidenced

that court imposed sentence of total confinement following revocation of

appellant’s probation to vindicate court’s authority, where appellant had not


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complied with previous judicial efforts such as drug court, had not “been

putting anything into” court-imposed rehabilitation efforts, and it was

important for appellant to appreciate seriousness of his actions; record as

whole    reflected     court’s   reasons       for   sentencing    as    well   as   court’s

consideration     of   circumstances       of    appellant’s      case   and    character);

Commonwealth v. Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (holding

appellant’s continued drug use as well as his resistance to treatment and

supervision, was sufficient for court to determine appellant would likely

commit another crime if not incarcerated); Commonwealth v. Aldinger,

436 A.2d 1196 (1981) (explaining sentence of total confinement was proper

where record reflected appellant had violated probation by using drugs;

court considered circumstances giving rise to revocation proceeding and

appellant’s character). Following our independent review of the record, we

conclude the appeal is wholly frivolous.5 See Palm, supra. Accordingly, we

____________________________________________


5 The record showed Appellant pled guilty to indecent assault, a Tier II
offense under the Sexual Offender Registration and Notification Act
(“SORNA”), which required him to report as a sex offender for twenty-five
(25) years. We are aware of our Supreme Court’s recent decision that held
SORNA violated the ex post facto clauses of the United States and
Pennsylvania Constitutions, and this Court’s recent decision that held
unconstitutional the sexually violent predator designation under SORNA
because it required additional fact-finding after trial. See Commonwealth
v. Muniz, ___ Pa. ___, 164 A.3d 1189 (2017); Commonwealth v. Butler,
___ A.3d ___, 2017 PA Super 344 (filed October 31, 2017). These recent
decisions, however, do not affect the present case, because Appellant’s
guilty plea to indecent assault and the imposition of SORNA reporting
requirements occurred after the effective date of SORNA, Appellant was not
(Footnote Continued Next Page)


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affirm the judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/17




(Footnote Continued) _______________________

designated as a sexually violent predator, the Tier II classification for the
offense is defined by statute and requires no additional fact-finding after
trial.



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