J-S03043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER GAINER,                        :
                                               :
                       Appellant               :      No. 2010 EDA 2018

         Appeal from the Judgment of Sentence Entered June 12, 2018
              in the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0007940-2010

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 28, 2019

        Christopher Gainer (“Gainer”) appeals from the judgment of sentence

imposed following the revocation of his probation.         Additionally, Gainer’s

counsel, 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 Gainer’s judgment of sentence.

        On March 28, 2011, Gainer entered a negotiated guilty plea to driving

under the influence (“DUI”) – high rate of alcohol and driving while operating

privilege is suspended.1 In exchange for his plea, the remaining charges for

operating a vehicle without a valid inspection were nolle prossed. The trial

court sentenced Gainer to an aggregate term of 90 days to 23 months in


____________________________________________


1   See 75 Pa.C.S.A. §§ 3802(b), 1543(b)(1).
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prison, followed by 3 years of probation. Gainer did not file any post-sentence

motions or a direct appeal.

        On June 14, 2012, Gainer was charged with possession of a controlled

substance and resisting arrest.2 On April 8, 2013, the trial court conducted a

Gagnon II3 hearing, and found Gainer to be in violation of his parole. The

trial court sentenced Gainer to serve the balance of his 23-month sentence,

followed by 3 years of probation. The sentence was to be served concurrently

to Gainer’s unrelated sentences at docket numbers 7274-2012 and 6615-

2009.

        On June 12, 2018, the trial court conducted a Gagnon II hearing, and

found Gainer to be in violation of his probation based on a technical violation.

The trial court revoked Gainer’s probation and resentenced him to 12 to 36

months in prison.

        On June 28, 2018, Gainer filed an untimely pro se Motion to modify his

sentence, despite being represented by counsel.4 On June 29, 2018, Gainer,

via Attorney Connors, filed a Notice of Appeal. The trial court ordered Gainer

to file a Pa.R.A.P. 1925(b) Concise Statement of errors complained of on

appeal. In response, Attorney Connors filed a Pa.R.A.P. 1925(c)(4) Statement

of intent to file an Anders Brief in lieu of a Rule 1925(b) concise statement.

____________________________________________


2   The record does not indicate when Gainer was paroled.

3   See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

4   The trial court did not address Gainer’s pro se Motion.

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Gainer neither filed a pro se brief, nor retained alternate counsel for this

appeal.

     Before addressing Gainer’s issue on appeal, we must determine whether

Attorney Connors has complied with the dictates of Anders and its progeny

in petitioning to withdraw from representation.    See Commonwealth v.

Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen

presented with an Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw.”).

Pursuant to Anders, when counsel believes that an appeal is frivolous and

wishes to withdraw from representation, 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 court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation

omitted).

     Additionally, the Pennsylvania Supreme Court has explained 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

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      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).

      In the instant case, our review of the Anders Brief and the Petition to

Withdraw reveals that Attorney Connors has substantially complied with each

of the requirements of Anders/Santiago. See Commonwealth v. Wrecks,

934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must

substantially comply with the requirements of Anders).      Attorney Connors

indicates that he has made a conscientious examination of the record and

determined that an appeal would be frivolous. Further, Attorney Connors’s

Anders Brief comports with the requirements set forth by the Supreme Court

of Pennsylvania in Santiago. Finally, Attorney Connors provided Gainer with

a copy of the Anders Brief and advised him of his rights to retain new counsel

or to raise any additional points deemed worthy of the Court’s attention. Thus,

Attorney Connors has substantially complied with the procedural requirements

for withdrawing from representation. We next examine the record and make

an independent determination of whether Gainer’s appeal is, in fact, wholly

frivolous.

      Attorney Connors presents the following issue for our review: “Whether

the 12 to 36-month term of imprisonment imposed herein is harsh and

excessive under the circumstances?” Anders Brief at 1.

      This issue challenges the discretionary aspects of Gainer’s sentence. “A

challenge to the discretionary aspects of sentencing is not automatically

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reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,

815 (Pa. Super. 2017).      Prior to reaching the merits of a discretionary

sentencing issue,

      [w]e 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 sentence appealed from is not appropriate under
      the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Grays, 167 A.3d at 815-16 (citation omitted).

      Gainer, via Attorney Connors, filed a timely Notice of Appeal, included a

2119(f) Statement within the Anders brief, and has advanced a plausible

argument that the trial court violated the fundamental norms underlying

the sentencing process.   See Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010) (stating that “[t]he imposition of a sentence of total

confinement after the revocation of probation for a technical violation, and not

a new criminal offense, implicates the “fundamental norms which underlie

the sentencing process.”). However, although Gainer filed a pro se Motion to

reconsider his sentence, the Motion had no legal effect because he was

represented by counsel. See Commonwealth v. Williams, 151 A.3d 621,

623 (Pa. Super. 2016) (stating that “this Court will not accept a pro se motion

while an appellant is represented by counsel; indeed, pro se motions have no

legal effect and, therefore, are legal nullities.”). Accordingly, we could find




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Gainer’s discretionary claim to be waived.       Nevertheless, we will address

Gainer’s discretionary sentencing claim as a part of our independent review.

      Gainer argues that his sentence was harsh and excessive because the

court did not consider his substance abuse problem and his four and half years

of sobriety prior to the instant probation violation. Anders Brief at 6.

      Our standard of review is well settled:

      The imposition of sentence following the revocation of probation
      is vested within the sound discretion of the trial court, which,
      absent an abuse of that discretion, will not be disturbed on appeal.
      An abuse of discretion is more than an error in judgment—a
      sentencing court has not abused its discretion unless the record
      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).

             The reason for this broad discretion and deferential standard
      of appellate review is that the sentencing court is in the best
      position to measure various factors and determine the proper
      penalty for a particular offense based upon an evaluation of the
      individual circumstances before it. Simply stated, the sentencing
      court sentences flesh-and-blood defendants and the nuances of
      sentencing decisions are difficult to gauge from the cold transcript
      used upon appellate review. Moreover, the sentencing court
      enjoys an institutional advantage to appellate review, bringing to
      its decisions an expertise, experience, and judgment that should
      not be lightly disturbed.

             The sentencing court’s institutional advantage is, perhaps,
      more pronounced in fashioning a sentence following the revocation
      of probation, which is qualitatively different than an initial
      sentencing proceeding. At initial sentencing, all of the rules and
      procedures designed to inform the court and to cabin its
      discretionary sentencing authority properly are involved and play
      a crucial role. However, it is a different matter when a defendant
      appears before the court for sentencing proceedings following a
      violation of the mercy bestowed upon him in the form of a
      probationary sentence. For example, in such a case, contrary to

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      when an initial sentence is imposed, the Sentencing Guidelines do
      not apply, and the revocation court is not cabined by Section
      9721(b)’s requirement 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.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and

quotation marks omitted).

      Upon revocation of probation, a sentencing court may choose from any

of the sentencing options that existed at the time of the original sentence,

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that either “(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.” Id. § 9771(c).

      Moreover, “[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 reason

or reasons for the sentence imposed.” Id. § 9721(b); see also Pa.R.Crim.P.

708(D)(2) (providing that “[t]he judge shall state on the record the reasons

for the sentence imposed.”). However, following revocation of probation, a

sentencing court need not undertake a lengthy discourse for its reasons for

imposing a sentence or specifically reference the statutes in question. See


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Pasture, 107 A.3d at 28 (stating that “since 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.”).

      Here, the trial court considered Gainer’s criminal record, including four

DUI convictions; Gainer’s lack of success under supervision, including two

violations of his probation or parole; Gainer’s failure to complete alcohol safe

driving classes, community service, court reporting network evaluation, and

outpatient counseling; Gainer’s alcohol addiction and rehabilitative needs; and

the protection of the community. See N.T., 6/12/18, at 6, 18. The trial court

was particularly concerned that Gainer was likely to commit another crime.

See id. at 6 (wherein the trial court advises Gainer, “your failure to do alcohol

safe driving classes, community service, the [court reporting network

evaluation] and outpatient counseling since 2010 [] just tells me you’re not

going to do it. You’re probably never going to do it until you kill yourself or

kill someone else.”). Our review of the record confirms that the trial court

had sufficient information to make a fully informed sentencing decision

following the revocation of Gainer’s probation. Accordingly, we conclude that

the trial court’s sentence was not improperly excessive, and Gainer’s

discretionary sentencing challenge is wholly frivolous.




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     Finally, our independent review of the record discloses no additional

non-frivolous issues that could be raised on appeal.    We therefore grant

Attorney Connors’s Petition, and affirm Gainer’s judgment of sentence.

     Petition to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/19




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