J-S14029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THADDEUS GIBSON                            :
                                               :
                       Appellant               :   No. 2448 EDA 2018

          Appeal from the Judgment of Sentence Entered July 24, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0005048-2015


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 29, 2019

        Appellant Thaddeus Gibson appeals from the judgment of sentence

imposed following the revocation of his probation. Appellant’s counsel has

filed a petition to withdraw and an Anders/Santiago1 brief. We affirm and

grant counsel’s petition to withdraw.

        On April 6, 2015, Appellant, an inmate at SCI Chester, punched a

corrections officer in the face. On April 12, 2016, Appellant pled guilty to one

count of aggravated assault graded as a second-degree felony.2 That same



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).

2The maximum term of imprisonment for a second-degree felony is ten years.
18 Pa.C.S. § 1103(2).
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day, the trial court sentenced Appellant to one to two years’ imprisonment,

plus a consecutive term of three years’ probation.

        Appellant completed his prison sentence and commenced probation on

April 12, 2018. As a condition of probation, Appellant was instructed to report

to a probation and parole office in Philadelphia within twenty-four hours of his

release from prison.       Appellant failed to report, and Parole Agent James

Hufford obtained a bench warrant for Appellant.

        Appellant was taken into custody. At the Gagnon II3 hearing on July

24, 2018, Agent Hufford recommended that the trial court resentence

Appellant to one and one-half to three years’ imprisonment. Agent Hufford

testified that Appellant had a history of assaulting corrections officers and a

“lengthy parole history beginning from the 1970’s.” N.T. Hr’g, 7/24/18, at 6.

Additionally, Appellant threatened to kill Agent Hufford after learning that the

Board of Probation and Parole would be recommending a new sentence of

incarceration due to the technical probation violation. At the conclusion of the

hearing, the court revoked probation and resentenced Appellant to one and

one-half to three years’ imprisonment.4 The court also advised Appellant of

his post-sentence and appellate rights.          However, Appellant did not file a

motion to modify the sentence.

____________________________________________


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

4After the trial court announced its sentence, Appellant “show[ed] the finger,”
and cursed at Agent Hufford and the trial judge. N.T. at 11. Appellant’s
counsel did not object to the sentence at the hearing.

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        On August 22, 2018, Appellant timely filed a notice of appeal.          On

October 17, 2018, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Counsel timely filed a

statement of intent to file an Anders/Santiago brief, pursuant to Pa.R.A.P.

1925(c)(4). The court did not file a responsive opinion.

        On December 31, 2018, counsel filed an Anders/Santiago brief and a

separate petition to withdraw. Counsel’s withdrawal petition indicates that he

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

counsel.

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

        Whether the trial court erred in sentencing Appellant . . . to a term
        of 18 to 36 months of incarceration which is harsh and excessive
        under the circumstances?

Anders/Santiago Brief at 6.

        “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.

Super. 2008) (citation omitted).

        Prior to withdrawing as counsel on a direct appeal under Anders,
        counsel must file a brief that meets the requirements established
        by our Supreme Court in Santiago. The brief must:

____________________________________________


5   A copy of the letter is attached to the withdrawal petition.

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         (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. Counsel also must provide a copy of
      the Anders brief to his client. Attending the brief must be a letter
      that advises the 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, 879-80 (Pa. Super. 2014) (some

citations omitted).

      If counsel complies with these requirements, then “we will make a full

examination of the proceedings in the lower court and render an independent

judgment [as to] whether the appeal is in fact ‘frivolous.’” Id. at 882 n.7

(citation omitted). 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 citation omitted); accord Commonwealth

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

      Here, counsel has complied with the procedures for seeking withdrawal

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

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

brief. See Orellana, 86 A.3d at 880. Moreover, counsel’s Anders/Santiago

brief 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. Counsel explains his reasoning and

supports his rationale with citations to the record and pertinent legal authority.

We conclude that counsel has met the technical requirements of Anders and

Santiago, and we will proceed to address the issue raised in the

Anders/Santiago brief.

         Counsel suggests that the trial court abused its discretion by imposing

a sentence that “is inappropriately severe given the technical nature of the

violations.”     Anders/Santiago Brief at 10.        Counsel claims Appellant

attempted to report to the probation and parole office as directed, but the

office was closed when he arrived. Id. Counsel insists that Appellant’s “failure

to report was not for a lack of trying,” and Appellant immediately contacted

Agent Hufford after obtaining the agent’s cell phone number. Id. “Because

[Appellant’s] violation of his probation was unrelated to any [violent] criminal

activity,” counsel argues that Appellant deserved a more lenient sentence. Id.

at 11.

         Appellant’s issue is a challenge to the discretionary aspects of his

sentence. The well-settled guidelines to challenge the discretionary aspects

of a sentence are as follows:

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      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant challenging
      the discretionary aspects of his sentence must invoke this Court’s
      jurisdiction by satisfying a four-part test:

         We 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, . . . ; (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.[ ] §
         9781(b).

Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016) (citation

omitted).   “Issues not presented to the sentencing court are waived and

cannot be raised for the first time on appeal.” Commonwealth v. Malovich,

903 A.2d 1247, 1251 (Pa. Super. 2006) (citation omitted).

      In Tukhi, counsel filed an Anders/Santiago brief, which challenged the

discretionary aspects of the defendant’s sentence. Id. The Tukhi Court held

that the defendant waived the issue by not preserving the issue at the

sentencing hearing or in a post-sentence motion. Id.

      Instantly, Appellant, like the defendant in Tukhi, failed to raise his

sentencing challenge before the trial court and therefore has waived it. See

id.   Moreover, our independent review of the record does not reveal any

additional, non-frivolous issues preserved in this appeal. See Flowers, 113

A.3d at 1250. Accordingly, we affirm the judgment of sentence and grant

counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19




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