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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
CORTEZ JIVAN CARNEY,                     :         No. 1696 EDA 2015
                                         :
                         Appellant       :


              Appeal from the Judgment of Sentence, May 6, 2015,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0006937-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 13, 2016

        Cortez Jivan Carney appeals from the judgment of sentence entered

on May 6, 2015, in the Court of Common Pleas of Delaware County.

        On October 6, 2011, appellant, who was 19-years old, was arrested for

contacting, communicating with, and arranging to have sex with a

14-year-old female.      He was charged with corruption of minors, contact/

communication with minor, and harassment.1

        On January 30, 2014, appellant entered a negotiated plea of guilty to

the offenses of corruption of minors and harassment.      In accordance with

the plea, appellant was sentenced to five years of probation. The conditions

of his probation included, inter alia, forfeiture of his cell phone, no contact



1
    18 Pa.C.S.A. § 6301(a)(1), § 6318(a)(1), and § 2709(a)(2), respectively.
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with the victim, completion of sexual offender’s treatment program, no

alcohol, and no contact with minors without an adult present.

      On April 14, 2015, appellant violated the terms of his probation by

having improper contact with a minor.2 A hearing was held on May 6, 2015,

in accordance with Gagnon v. Scarpelli, 411 U.S. 778 (1973).           At the

hearing, appellant stipulated that he was in violation of his probation.

(Transcript of proceedings, 5/16/15 at 3.) Appellant also indicated, through

counsel, that he had a mental health problem and asked that he be given

treatment for it as part of his new sentence. (Id.) The trial court adopted

the recommendation of appellant’s probation officer, revoked appellant’s

probation, and resentenced him to a term of time-served (22 days) to

23 months of incarceration with three years’ consecutive probation. The trial

court granted his request to include mental health treatment at the prison.

The court ordered that appellant be immediately paroled upon completion of

the sexual offender program at the Delaware County Prison and an approved

parole plan with general and special sex offender rules. (Id. at 3-4.) When

asked whether he understood his right to ask the court for reconsideration,

appellant replied that he understood “[n]one of it, like I’m having handicaps,

I’m having a challenge completely.” (Id. at 5.)



2
  Appellant admitted having contact with his minor sister via Facebook and
text messaging. At appellant’s request, his minor sister sent appellant an
inappropriate picture of her buttocks and appellant admitted to having
masturbated to the picture multiple times.


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      Appellant filed a timely notice of appeal and was ordered to file a

concise statement of matters complained of on appeal on June 8, 2015. In

response to this order, counsel stated his intent to withdraw on the basis of

frivolity. Anders v. California, 386 U.S. 738 (1967); Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).          Appellant’s counsel filed both an

Anders brief and a petition to withdraw as counsel. The following principles

guide our review of this matter.

            Direct appeal counsel seeking to withdraw under
            Anders must file a petition averring that, after a
            conscientious examination of the record, counsel
            finds the appeal to be wholly frivolous. Counsel
            must also file an Anders brief setting forth issues
            that might arguably support the appeal along with
            any other issues necessary for the effective appellate
            presentation thereof . . . .

            Anders counsel must also provide a copy of the
            Anders petition and brief to the appellant, advising
            the appellant of the right to retain new counsel,
            proceed pro se or raise any additional points worthy
            of this Court’s attention.

            If counsel does not fulfill the aforesaid technical
            requirements of Anders, this Court will deny the
            petition to withdraw and remand the case with
            appropriate instructions (e.g., directing counsel
            either to comply with Anders or file an advocate’s
            brief on Appellant’s behalf). By contrast, if counsel’s
            petition and brief satisfy Anders, we will then
            undertake our own review of the appeal to determine
            if it is wholly frivolous. If the appeal is frivolous, we
            will grant the withdrawal petition and affirm the
            judgment of sentence.           However, if there are
            non-frivolous issues, we will deny the petition and
            remand for the filing of an advocate’s brief.




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Commonwealth v. Wrecks, 931 A.2d 717, 720-721 (Pa.Super. 2007)

(citations omitted). Our supreme court has clarified portions of the Anders

procedure:

             [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.

Santiago, 978 A.2d at 361.

     Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical requirements set forth above. Therefore, we must now make a full

examination of the proceedings and make an independent judgment to

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

Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015), quoting Santiago, 978

A.2d at 354 n.5.

     Counsel presented this court with one issue of arguable merit

concerning a challenge to the discretionary aspects of his sentence. That is:

whether the new maximum sentence of 23 months of incarceration is harsh

and excessive in light of appellant’s mental health problem?



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        “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011) (citation omitted).

                     An appellant challenging the discretionary
              aspects of his sentence must invoke this Court’s
              jurisdiction  by   satisfying   a    four-part   test:
              (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).
              Commonwealth v. Evans, 901 A.2d 528, 533
              (Pa.Super.2006).

Id.

        At the outset we note that counsel has not included the requisite

Pa.R.A.P. 2119(f) statement in the brief.3 However, we note that “[w]here

counsel files an Anders brief, this court has reviewed the matter even

absent a separate Pa.R.A.P. 2119(f) statement. Hence, we do not consider


3
    In pertinent part, Rule 2119 provides:

              An appellant who challenges the discretionary
              aspects of a sentence in a criminal matter shall set
              forth in his brief a concise statement of the reasons
              relied upon for allowance of appeal with respect to
              the discretionary aspects of a sentence.          The
              statement shall immediately precede the argument
              on the merits with respect to the discretionary
              aspects of sentence.

Pa.R.A.P. 2119(f).


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counsel’s failure to submit a Rule 2119(f) statement as precluding review of

whether Appellant’s issue is frivolous.”   Commonwealth v. Zeigler, 112

A.3d 656, 661 (Pa.Super. 2015) (citations omitted).

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”      Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super. 2011). Further:

                  A substantial question exists only when the
            appellant advances a colorable argument that the
            sentencing     judge’s   actions     were    either:
            (1) inconsistent with a specific provision of the
            Sentencing Code; or (2) contrary to the fundamental
            norms which underlie the sentencing process.

Id. (internal citations omitted).

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

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

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.” 42 Pa.C.S.A. § 9771(c).

      Section 9721, which governs sentencing generally, provides that in all

cases where the court “resentences an offender following revocation of

probation . . . the court shall make as a part of the record, and disclose in

open court at the time of sentencing, a statement of the reason or reasons


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for the sentence imposed.”    Id.    Failure to comply with these provisions

“shall be grounds for vacating the sentence or resentence and resentencing

the defendant.”   Id.   See also Commonwealth v. Aldinger, 436 A.2d

1196 (Pa.Super. 1981) (stating that a trial court must state its reasons on

the record when it imposes sentence following revocation of probation).

      Additionally, we have noted that the reasons stated for a sentence

imposed should reflect the court’s consideration of the criteria of the

Sentencing Code, 42 Pa.C.S.A. § 9701 et seq., the circumstances of the

offense, and the character of the offender.    Commonwealth v. DeLuca,

418 A.2d 669, 670 (Pa.Super. 1980).

      We have reviewed the sentencing transcript.      The probation officer

who testified at the May 6, 2015 hearing, only stated that “defendant is in

violation of his probation” and that he “also stipulates to the violations.”

(Transcript of proceedings, 5/16/15 at 3.)         Aside from those brief

statements, there was no other discussion on the record of why the court

sentenced appellant as it did.      There was no pre-sentence investigation

report.   There was no discussion on the record whatsoever as to how the

court arrived at the sentence.      The trial court gave no reasons for the

sentence. It gave no indication that it considered appellant’s character, any

mental health problems, or the circumstances of the offense for which he

was sentenced. The court merely stated, “Court adopts the recommendation

of Adult Probation and Parole.” (Id. at 4.)



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     In Commonwealth v. Riggins, 377 A.2d 140 (Pa.Super. 1977), we

explained:

                   The benefits of requiring the trial court to state
             its reasons for the imposition of its sentence are
             manifold: First, requiring the trial court to articulate
             its reasons for selecting a sentence will promote
             more thoughtful consideration of relevant facts and
             will help rationalize the sentencing process. It will
             safeguard against arbitrary decisions and prevent
             consideration of improper and irrelevant factors. It
             will minimize the risk of reliance upon inaccurate
             information contained in the presentence report
             ....     Finally, a statement of reasons will be
             invaluable in aiding appellate courts to ascertain
             whether the sentence imposed was based upon
             accurate, sufficient and proper information.

Id. at 147-148.

     Here, the trial court failed to state any reason whatsoever on the

record for the sentence imposed on appellant. As a result, we are unable to

determine from this record whether the sentence imposed was based upon

accurate, sufficient, and proper information. Therefore, we are constrained

to vacate the judgment of sentence and remand the matter to afford the

trial court an opportunity to resentence appellant and to include a statement

of reasons for sentence imposed.

     Judgment of sentence vacated.             Case remanded.           Jurisdiction

relinquished. Counsel’s petition to withdraw is denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2016




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