J-S63024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER RYAN STORMS

                            Appellant                No. 223 WDA 2017


         Appeal from the Judgment of Sentence Dated January 4, 2017
              In the Court of Common Pleas of Jefferson County
             Criminal Division at No(s): CP-33-CR-0000181-2011
                                        CP-33-CR-0000182-2011

BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 15, 2017

        Appellant Christopher Ryan Storms appeals from the judgment of

sentence of five to ten years’ incarceration imposed after the trial court

revoked his probation. Appellant’s counsel has filed a petition to withdraw

and an Anders1 brief, stating that the appeal is wholly frivolous.      After

careful review, we affirm the judgment of sentence and grant counsel’s

petition to withdraw.

        On May 4, 2011, Appellant pleaded guilty to one count of possession

with intent to deliver a controlled substance (PWID)2 at CP-33-CR-181-2011

and another count of PWID at CP-33-CR-182-2011.        On May 9, 2011, the
____________________________________________
1
    Anders v. California, 386 U.S. 738 (1967).
2
    35 P.S. 780-113(a)(30).
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trial court imposed a sentence of four years of probation for each case, to

run concurrently.

      On August 1, 2012, after Appellant admitted to committing numerous

violations of his probation (failure to report for a hearing, traveling outside

of the state without permission, using controlled substances, and being

delinquent in payment of fines and costs), the trial court revoked Appellant’s

probation and imposed the following sentences: at 181-2011, four months to

two years, less one day in the Jefferson County jail, followed by two years

plus one day of probation; at 182-2011, four years of probation, concurrent

to the sentence at 181-2011.

      On April 21, 2014, after Appellant admitted to committing additional

probation     violations   (failure     to    report,   failure   to    report    change   in

employment, possession of a controlled substance, and being delinquent in

payment of fines and costs), the trial court again revoked Appellant’s

probation and imposed the following sentences: at 181-2011, two years in

the State Intermediate Punishment Program, followed by three years of

probation; at 182-2011, three years’ probation, concurrent to the sentence

at 181-2011.

      While     on   probation        after    completing     the      State     Intermediate

Punishment Program, Appellant admitted to violating his probation by failing

to report, changing his residence without permission, consuming alcohol,

and using controlled substances. Based on these violations, on January 4,


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2017, after reviewing a pre-sentence investigation report, the trial court

revoked Appellant’s probation and imposed a two and one-half to five year

sentence of incarceration for each case, to be served consecutively, resulting

in an aggregate sentence of 5-10 years.         The trial court explained its

sentence:

            [W]e can’t keep you on the street, because [you claim to
      be] serious about [drug and alcohol rehabilitation], and there’s
      nothing on the street that’s helping you because you violated
      again.

             So I think the recommendation [in the presentence
      investigation report of two consecutive sentences of two to four
      years] is low because you show a complete disregard for the
      court. I’m going to revoke each of your probations and give you
      a nice long sentence because you only had another year or so to
      serve, two and a half to five on each one. I’m going to give you
      a five-to-ten year sentence, credit for all the time you’ve served.

            ...

            I’m giving you a five-to-ten year sentence because you
      don’t take anything seriously. This is to vindicate the authority
      of the court. . . .

N.T., 1/4/17, at 6-7.

      On February 3, 2017, Appellant filed a motion for reconsideration of

sentence nunc pro tunc.     On the same day, the trial court permitted the

nunc pro tunc filing but denied Appellant’s motion. Also on the same day,

Appellant filed a notice of appeal.

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

Anders brief with this Court. In the Anders brief, counsel raises one issue:




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       Whether the [t]rial [c]ourt committed an abuse of discretion
       when it revoked Appellant’s probation/parole and re-sentenced
       him to serve consecutive sentences aggregating to a minimum of
       five (5) years to a maximum of ten (10) years in a State
       Correctional Institution given the circumstances of the case.

Anders Brief at 4.3

       “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010). An Anders brief must comply with the requirements set forth by the

Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009):

       [W]e hold that in 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 361.

       Counsel seeking to withdraw on direct appeal must meet the following

obligations to his or her client:

       Counsel also must provide a copy of the Anders brief to his
       client. Attending the brief must be a letter that advises the
____________________________________________
3
   The Commonwealth sent a letter to this Court stating that it would not be
filing a responsive brief.



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      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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).     “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”       Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,

“this Court must 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)

(footnote and citations omitted).

      In this case, counsel provided a copy of the Anders brief to Appellant

and advised Appellant of his right to either retain new counsel or proceed

pro se on appeal, and to raise any issues he wished to bring to this Court’s

attention.   Further, counsel’s Anders brief complies with prevailing law in

that counsel has provided a procedural and factual summary of the case with

references to the record.      See Anders Brief at 5-6.     Appellate counsel

additionally cites relevant portions of the record that arguably support

Appellant’s claim on appeal.    See id. at 10.   Ultimately, appellate counsel

provides his reasons and conclusion that this appeal is frivolous. See id. at

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9-11.    Counsel has therefore complied with the requirements of Santiago

and Orellana, and we will address the issue raised in the Anders brief.

        Appellant challenges the discretionary aspects of his sentence. As this

court has explained:

        A challenge to the discretionary aspects of a sentence is not
        appealable as of right. Therefore, before we may exercise
        jurisdiction to reach the merits of Appellant’s claim, we must
        verify that Appellant’s appeal is properly before this Court – that
        is, that his appeal was timely filed and that the issues he seeks
        to raise were properly preserved. If so, we must then determine
        whether Appellant’s brief includes a concise statement of the
        reasons relied upon for allowance of appeal with respect to the
        discretionary aspects of sentence pursuant to Appellate Rule
        2119(f), and whether that concise statement raises a substantial
        question that the sentence is appropriate under the [S]entencing
        [C]ode. Only if the appeal satisfies these requirements may we
        proceed to decide the substantive merits of Appellant’s claim.

Commonwealth v. Luketic, 162 A.3d 1149, 1159-60 (Pa. Super. 2017)

(quotation marks, brackets, footnote, and citations omitted).

        In the current case, Appellant filed a post-sentence motion seeking

reconsideration of his sentence and a timely notice of appeal.         Counsel’s

Anders brief contains a concise statement of the reasons for which

Appellant seeks allowance of an appeal, in compliance with Rule 2119(f) of

the Rules of Appellate Procedure.        See Anders Brief at 7.      As counsel

explains, “[t]he Superior Court has found that a substantial question is

presented when a sentence of total confinement in excess of the original

sentence is imposed as a result of a technical violation of parole or

probation.” Id. (citing Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.


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Super. 2000)).     Therefore, the prerequisites for our consideration of

Appellant’s sentencing issue have all been met.

     When faced with a discretionary sentencing claim, we apply the

following standard of review:

     Sentencing is a matter vested in the sound discretion of the
     sentencing judge, and 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.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

     In its opinion, the trial court explained:

            As the record reflects, [Appellant] pled guilty to Possession
     with Intent to Deliver on May 4, 2011, and he has proven since
     then that he lacks the will and/or motivation both to refrain from
     the use of controlled substances and to comply with the [c]ourt’s
     order that he abide by the standard terms of probation. Even a
     prior stint in prison and the rigors of the [State Intermediate
     Punishment Program] did not sufficiently incentivize him to stay
     clean and follow the rules. Accordingly, a sentence of total
     incarceration was appropriate to vindicate the [c]ourt’s
     authority. See Sentencing Transcript, 01/04/2017, p. 6 (“So I
     think the recommendation is low because you show a complete
     disregard for the court”). The record does not support the claim
     that the [c]ourt abused its discretion, as the sentence was
     clearly a response to [Appellant’s] objective conduct.

           For the same reasons, the sentence was not manifestly
     unreasonable. [Appellant], after initially being sentenced to
     probation only, had already served time in prison on account of
     his inability to control his drug habit and comply with the terms
     and conditions of his probation. He thus demonstrated that a


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      lesser sentence would not achieve the sentencing statute’s
      punitive and rehabilitative aims.

Trial Ct. Op., 4/11/17, at 1-2. We agree with the trial court’s reasoning and

conclude that the trial court did not abuse its discretion.   In addition, we

have reviewed the certified record consistent with Flowers, 113 A.3d at

1250, and have discovered no additional arguably meritorious issues.

Accordingly, we grant appellate counsel’s petition to withdraw and affirm the

trial court’s judgment of sentence.

      Petition to withdraw as counsel granted.       Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2017




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