J-S07004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOSEPH WILLIAM KESTER,

                        Appellant                    No. 1144 MDA 2014


       Appeal from the Judgment of Sentence Entered June 12, 2014
           In the Court of Common Pleas of Lackawanna County
                         Criminal Division at No(s):
                         CP-35-CR-0002937-2009
                         CP-35-CR-0002938-2009


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

MEMORANDUM BY BENDER, P.J.E.:                  FILED FEBRUARY 10, 2015

     Appellant, Joseph William Kester, appeals from the judgment of

sentence of an aggregate term of 1 to 2 years’ incarceration.    On appeal,

Appellant challenges the discretionary aspects of his sentence. Additionally,

his counsel, Donna M. DeVita, Esq., seeks permission to withdraw her

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

(1967), as elucidated by our Supreme Court in Commonwealth v.

McClendon, 434 A.2d 1185 (Pa. 1981), and amended in Commonwealth

v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we agree with counsel

that Appellant’s claims are frivolous. Accordingly, we affirm his judgment of

sentence and grant counsel’s petition to withdraw.
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     On July 26, 2010, Appellant entered a guilty plea to use or possession

of drug paraphernalia and providing false identification to law enforcement.

He was sentenced on October 26, 2010, to two consecutive probation terms

of one year. These sentences were to be served consecutively to another

sentence Appellant was then serving in an unrelated case. These terms of

probation were revoked following a hearing on June 12, 2014, and Appellant

was sentenced to two consecutive terms of 6 to 12 months’ incarceration.

     Appellant filed a timely notice of appeal, as well as a timely concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On October 20, 2014, Attorney DeVita filed with this Court a petition to

withdraw as counsel pursuant to Anders/Santiago.         “When faced with a

purported Anders brief, this Court may not review the merits of the

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

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting

Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)).

     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:

        (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


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         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. Nischan, 928 A.2d 349,
      353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
      (2007).

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014). After

confirming that counsel satisfied these requirements, this Court must then

conduct its own review of the record and independently determine whether

the appeal is in fact wholly frivolous.    Commonwealth v. Daniels, 999

A.2d 590, 594 (Pa. Super. 2010).

      Instantly, Attorney DeVita’s Anders brief provides a detailed summary

of the procedural history and facts of Appellant’s case with citations to the

record. It also includes a discussion of appellate issues that the record could

arguably support; namely, a challenge to the court’s authority to impose the

sentence, and a challenge to the court’s sentencing discretion.        Attorney

DeVita sets forth her conclusion that an appeal on Appellant’s behalf would

be wholly frivolous and explains the reasons underlying that determination.

She also supports her rationale with citations to the record, as well as

relevant case law.   Attorney DeVita confirms that she sent a copy of her

Anders brief to Appellant, and also has provided a copy of a letter she sent

to Appellant advising him of his right to retain private counsel, proceed pro

se, or raise any additional points he deems worthy of this Court’s attention.

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Therefore, we conclude that Attorney DeVita has complied with the

requirements of Anders/Santiago. Accordingly, we will now independently

review the merit of Appellant’s assertions, and also determine whether there

are any other issues he could arguably present on appeal.      See Daniels,

999 A.2d at 594.

      First, Appellant claims that the court erred when it revoked his terms

of probation before they had commenced. This claim is without merit. As

this Court has noted,

      [a] term of probation may and should be construed for
      revocation purposes as including the term beginning at the time
      probation is granted. Otherwise, having been granted probation
      a defendant could commit criminal acts with impunity-as far as
      revocation of probation is concerned-until he commenced actual
      service of the probationary period.

Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980)

(internal quotation marks and citations omitted).     Accordingly, as a court

may revoke a sentence of probation before a defendant has begun serving

that sentence, we conclude that it was not error for the court to revoke

Appellant’s sentences of probation in the instant case.

      Moreover, Appellant claims that the court abused its discretion when it

imposed an aggregate sentence of 1 to 2 years’ incarceration, as this

sentence was excessive based on Appellant’s technical violations of his

probation.

      A claim that the sentence imposed by the trial court was
      manifestly excessive is a challenge to the discretionary aspects
      of the sentence. The right to appeal the discretionary aspects of
      a sentence is not absolute. Two requirements must be met

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        before a challenge to the discretionary aspects of a sentence will
        be heard on the merits. First, the appellant must set forth in his
        brief a concise statement of the reasons relied upon for
        allowance of appeal with respect to the discretionary aspects of
        his sentence. Second, he must show that there is a substantial
        question that the sentence imposed is not appropriate under the
        Sentencing Code. The determination of whether a particular
        issue raises a substantial question is to be evaluated on a case-
        by-case basis. In order to establish a substantial question, the
        appellant must show actions by the sentencing court inconsistent
        with the Sentencing Code or contrary to the fundamental norms
        underlying the sentencing process.

Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003).

        Here, the trial court sentenced Appellant to two consecutive terms of 6

to 12 months’ incarceration. We note that twelve months’ incarceration is

the statutory maximum sentence that may be imposed for each offense to

which Appellant pled guilty, and that both sentences fall within the

aggravated range of the sentencing guidelines. However, we also recognize

that, “[T]he sentencing guidelines do not apply to sentences imposed as a

result of … probation revocations.”     Commonwealth v. Coolbaugh, 770

A.2d 788, 792 (Pa. Super. 2001) (internal citations omitted).            Rather,

“[u]pon revocation the sentencing alternatives available to the court shall be

the same as were available at the time of initial sentencing.” 42 Pa.C.S. §

9771.

        Appellant claims that the sentencing court abused its discretion in

sentencing him to such a lengthy period of incarceration, given the fact that

this was the first violation of his probation, and the violations were technical.

However, our review of Appellant’s post-sentence motion, and the applicable



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notes of testimony, indicate that this issue was never raised before the

sentencing court. As such, it is waived. See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

      Moreover, even if Appellant’s claim had been properly preserved, he

would not be entitled to relief. Appellant stipulated that he had violated his

probation; specifically, he had possessed a knife, used morphine and

marijuana, and left a court-ordered rehabilitation facility. N.T, 6/29/14, at

2.   The court also noted that Appellant had failed to follow through with

treatment for substance abuse, failed to maintain employment, and

submitted   several   urine   samples   that    tested   positive   for   controlled

substances. Id. at 5-6. The court stated these reasons on the record, and

then added, “It’s not a failure to rehabilitate, it’s a failure to even make an

attempt to rehabilitate.”     Id. at 6.        Accordingly, we would conclude

Appellant’s sentence was not an abuse of discretion.

      In sum, we agree with Attorney DeVita that Appellant’s sentencing

issues are frivolous. Additionally, our review of the record reveals no other

non-frivolous claims that Appellant could arguably assert. Thus, we affirm

his judgment of sentence and grant counsel leave to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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