J-S14033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                  Appellee                 :
                                           :
            v.                             :
                                           :
ROBERT LEE DAVIES,                         :
                                           :
                  Appellant                :            No. 2165 EDA 2014

      Appeal from the Judgment of Sentence entered on June 24, 2014
               in the Court of Common Pleas of Lehigh County,
                Criminal Division, No. CP-39-CR-0003101-2010

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED MARCH 09, 2015

      Robert Lee Davies (“Davies”) appeals from the judgment of sentence

imposed following the revocation of his parole and probation. Additionally,

Davies’s counsel, Carol A. Marciano, Esquire (“Marciano”), 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 Marciano’s Petition to

Withdraw and affirm.

      The trial court set for the relevant underlying facts as follows:

            On September 2, 2010, [Davies] entered a negotiated
      guilty plea to one count of Retail Theft and one count of
      Recklessly Endangering Another Person. He was sentenced by
      the Honorable William H. Platt to not less than one year less one
      day to not more than two years less one day in Lehigh County
      Prison on November 1, 2010.

            [Davies] was paroled on or about April 20, 2011.
      [Davies’s] parole was revoked on December 6, 2011[,] following
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        a Gagnon II[1] hearing where he conceded that he violated his
        parole.  He was resentenced to serve the balance [of his
        sentence], but granted immediate parole.       He was also
        sentenced to two years’ consecutive probation.

              On May 28, 2013, [Davies] appeared before the [trial
        court] for a second Gagnon II hearing. At that time, he
        conceded the allegations of the violation, and his probation and
        parole were revoked. He was remanded to Lehigh County Prison
        to serve the balance of his sentence, followed by probation for
        two years[,] consecutive to a Berks County sentence. He was
        given immediate [parole].

               On November 24, 2013, [Davies] was arrested for Retail
        Theft in Berks County. He was sentenced to not less than one
        nor more than five years [in prison] on May 8, 2014. This new
        arrest and conviction served as the basis for a third violation in
        this case.

               On June 24, 2014, [Davies] again appeared before the
        [trial c]ourt for a Gagnon II hearing.         He conceded the
        allegation that he violated his parole and probation by incurring
        another retail theft arrest on December 24, 2013[,] for a crime
        that occurred on November 24, 2013.          After that hearing,
        [Davies] was remanded to serve the balance of his sentence.
        His probation was revoked and he was resentenced to an
        additional twelve to twenty-four months’ incarceration in a State
        Correctional Institution.

              On July 24, 2014, [Davies] filed a Notice of Appeal
        challenging his sentence. He was directed to serve a Concise
        Statement of Matters Complained of on Appeal on the [trial
        c]ourt, and said Concise Statement was filed on August 18,
        2014.

Trial Court Opinion, 8/20/14, at 1-2 (footnote added).

        Davies’s counsel, Marciano, has filed a brief pursuant to Anders that

raises the following question for our review: “Whether the trial court abused

its discretion after probation revocation[,] and imposed an excessive and

1
    See Gagnon v. Scarpelli, 411 U.S. 778 (1973).


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disproportional sentence by resentencing [Davies] to a state sentence and

then running that sentence consecutive to all the other sentences [Davies]

was then serving?” Anders Brief at 4. Marciano filed a separate Petition to

Withdraw as Counsel on October 17, 2014.         Davies filed neither a pro se

brief, nor retained alternate counsel for this appeal.

      “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. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, he/she must

      (1) petition the [C]ourt for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders,

i.e., the contents of an Anders brief, and required that the brief

      (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;




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      (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. “Once counsel has satisfied the [Anders]

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.”     Edwards, 906 A.2d at 1228

(citation omitted).

      Here, Marciano has complied with each of the requirements of

Anders.     Marciano indicates that she has conscientiously examined the

record and determined that an appeal would be frivolous.                Further,

Marciano’s Anders brief comports with the Santiago requirements. Finally,

the record includes a copy of the letter that Marciano sent to Davies,

advising him of his right to proceed pro se or retain alternate counsel and

file additional claims, and stating Marciano’s intention to seek permission to

withdraw.     Accordingly,   Marciano   has   complied   with   the   procedural

requirements for withdrawing from representation, and we will review the

record to determine whether Davies’s claim on appeal is frivolous.

      In this appeal, Davies challenges the discretionary aspects of his

sentence.   “Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right.” Commonwealth v. Moury, 992



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A.2d 162, 170 (Pa. Super. 2010).           Prior to reaching the merits of a

discretionary sentencing issue,

      [this Court conducts] 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, [see] 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, [see] 42
      Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted). “A substantial question exi[s]ts

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.” Commonwealth v. Clarke, 70 A.3d 1281, 1286-

87 (Pa. Super. 2013) (citation omitted).

      Here, Davies filed a timely Notice of Appeal, but failed to preserve his

claim regarding the probation revocation sentence at sentencing or in a

motion to reconsider the sentence.         Thus, we cannot review Davies’s

sentencing claim. See Commonwealth v. Malovich, 903 A.2d 1247, 1251

(Pa. Super. 2006) (concluding that challenge to the discretionary aspects of

sentencing following a probation revocation was waived due to the




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defendant’s failure to preserve the issue at sentencing or in a post-sentence

motion).2

     Nevertheless, in light of the fact that Marciano has filed an Anders

brief and Petition to Withdraw as Counsel, we will address Davies’s

sentencing claims. See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.

Super. 2009) (stating that while appellant failed to properly preserve his

discretionary aspects of sentencing claim, this Court would address the

merits of the claim due to appellant’s counsel’s petition to withdraw as

counsel); Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super.

2001) (concluding that Anders requires review of issues otherwise waived

on appeal).

     Davies argues that “the trial court abused its discretion in re-

sentencing him after a probation violation to a state term of incarceration,


2
  Davies has included a Statement of the reasons relied upon for allowance
of appeal in his brief, pursuant to Pa.R.A.P 2119(f). Davies claims that he
has raised a substantial question because his sentence is excessive in light
of the fact that the trial court revoked his probation and sentenced him to a
state prison term that was consecutive to his other sentences. Anders Brief
at 9. Davies argues that the imposition of this sentence consecutive to his
other sentences “amounted to an unduly harsh and excessive sentence that
was disproportional to the nature of the violation.” Id. Generally, “[a]
challenge to the imposition of consecutive rather than concurrent sentences
does not present a substantial question regarding the discretionary aspects
of sentence.” Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super.
2008). However, Davies also asserts that the trial court did not properly
consider the factors under 42 Pa.C.S.A. § 9721(b). Anders Brief at 9. This
latter assertion would raise a substantial question. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (stating that
arguments that the sentencing court failed to consider the factors under 42
Pa.C.S.A. § 9721 present a substantial question).


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and in running that sentence consecutively to his other sentences, for an

aggregate term of approximately 3 to 9 years of state incarceration.”

Anders Brief at 10.    Davies contends that his sentence was unduly harsh

and excessive and disproportional to the nature of the violation. Id. Davies

claims that his mental health and substance abuse problems caused him to

violate his parole and probation. Id. at 10-11. Davies asserts that in light

of these problems, the trial court should not have imposed a prison sentence

for the probation violation. Id. at 11.

      The trial court set for the relevant law, addressed Davies’s sentencing

claims   and   determined   that   the    probation   revocation   sentence   was

appropriate in light of Davies’s lengthy criminal history, including his third

violation in this case, his mental health challenges, his rehabilitative needs,

and the needs of the community. See Trial Court Opinion, 8/20/14, at 3-4;

see also N.T., 6/24/14, at 4-5 (wherein prior to sentencing, Davies stated

that he was 51 years old; he had suffered from mental health issues his

entire life; he had spent a lot of time in prison; he has substance abuse

problems; and he has panic attacks and self-medicates); id. at 7-8 (wherein

the trial court considered a pre-sentence investigation report detailing

Davies’s prior criminal history, including committing crimes while on

supervision); id. at 10-12 (wherein the trial court explained its reasons for

the sentence, including that the prison term would provide Davies with the

mental health treatment necessary to treat his problems that influence his



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propensity   to   commit   crimes);   id.   at   11   (wherein   the   trial   court

recommended placing Davies at SCI-Waymart for treatment of his mental

health issues).    Based on the foregoing, we discern no abuse of the

sentencing court’s discretion in imposing the challenged sentence. See Trial

Court Opinion, 8/20/14, at 3-4; Commonwealth v. Sierra, 752 A.2d 910,

914-15 (Pa. Super. 2000) (concluding that the trial court’s imposition of a

prison sentence following probation/parole violations was proper where the

court considered the defendant’s age, prior criminal history, substance abuse

problems, mental health problems, defendant’s statements at sentencing,

and the ineffectiveness of parole and probation in rehabilitating the

defendant); see also Johnson, 961 A.2d at 880 (stating that “the

imposition of consecutive rather than concurrent sentences lies within the

sound discretion of the sentencing court.”).

      Additionally, following our independent review of the record, we

conclude that Davies’s appeal is wholly frivolous, and that there are no other

non-frivolous issues that Davies can raise on appeal.            Thus, we grant

Marciano’s Petition to Withdraw as Counsel and affirm the judgment of

sentence.

      Petition to Withdraw as Counsel granted.           Judgment of sentence

affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2015




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  IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                       CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLVANIA

                      vs.                                  No.     3101/2010
                                                                   2165 EDA 2014
ROBERT LEE DAVIES,
               Appellant

August 20,2014

                                                                        Douglas G. Reichley, J.
                                        1925(a) Opinion

       Robert Lee Davies, Appellant, appeals from a judgment of sentence following a Gagnon

II hearing during which he conceded that he violated his parole and probation and was

resentenced to serve the remaining balance on his parole sentence and to an additional twelve to

twenty-four months in a State Correctional Institution consecutive to the balance. Appellant

contends this sentence is excessive and challenges the discretionary aspects ofthe Court's

sentence. For the reasons set forth herein, the sentence was proper and lawful and Appellant's

judgment of sentence should be affirmed.

                               Factual and Procedural History

       On September 2,2010, Appellant entered a negotiated guilty plea to one count of Retail

Theft and one count of Recklessly Endangering Another Person. He was sentenced by the

Honorable William H. Platt to not less than one year less one day to not more than two years less

one day in Lehigh County Prison on November 1,2010.

       Appellant was paroled on or about April 20, 2011. Appellant's parole was revoked on

December 6, 2011 following a Gagnon II hearing where he conceded that he violated his parole.




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He was resentenced to serve the balance, but granted immediate parole. He was also sentenced to

two years' consecutive probation.

       On May 28,2013, Appellant appeared before the undersigned for a second Gagnon II

hearing. At that time, he conceded the allegations of the violation and his probation and parole

were revoked. He was remanded to Lehigh County Prison to serve the balance of his sentence,

followed by probation for two years consecutive to a Berks County sentence. He was given

immediate reparole.

        On November 24,2013, Appellant was an·ested for Retail Theft in Berks County. He was

sentenced to not less than one nor more than five years on May 8, 2014. This new arrest and

conviction served as the basis for a third violation in this case.

       On June 24, 2014, Appellant again appeared before the Court for a Gagnon II hearing. He

conceded the allegation that he violated his parole and probation by incurring another retail theft

arrest on December 24, 2013 for a crime that occurred on November 24,2013. After that

hearing, Appellant was remanded to serve the balance of his sentence. His probation was

revoked and he was resentenced to an additional twelve to twenty-four months' incarceration in a

State Correctional Institution.

        On July 24,2014, Appellant filed a Notice of Appeal challenging his sentence. He was

directed to serve a Concise Statement of Matters Complained of on Appeal on the Court, and

said Concise Statement was filed on August 18, 2014.

        This Opinion follows.




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                                            Discussion

       Appellant argues the Court abused his discretion by imposing a harsh and excessive

sentence. As a general rule, trial courts are afforded broad discretion in sentencing.

Commonwealth v. Miller, 835 A.2d 377,380 (Pa. Super. 2003); Commonwealth v. Mouzon, 812

A.2d 617,621 (Pa. 2002). A sentence will not be disturbed absent an abuse of that discretion.

Mouzon, 812 A.2d at 621 (citing Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.

2001)). 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. Smith, 673 A.2d 893 (Pa. 1996) (quoting Commonwealth v. Lane, 424

A.2d 1325, 1328 (Pa. 1981)).

       The Supreme Court of Pennsylvania explained that "[d]eference is accorded to the trial

court's pronouncement because of the perception that the trial court is in the best position to

detennine the proper penalty for a particular offense based upon an evaluation of the individual

circumstances before it." Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990). Thus, a

sentence will not be disturbed unless it was manifestly excessive or outside the statutory limits.

Commonwealth v. Ellis, 700 A.2d 948,958 (Pa. Super. 1997). Sentencing judges are guided by

the general principles of protecting the public, weighing the gravity of the offense in relation to

its impact on the community and the life of the victim, and the defendant's rehabilitative needs.

42 Pa.C.S. §9721(b).

        "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." Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001) (quoting

Commonwealth v. Sierra, 752 A.2d 910,913 (Pa. Super. 2000)). The range of sentences



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available to courts in resentencing following a revocation of probation are all of the sentencing

alternatives available at the time of the original sentencing. 42 Pa.C.S. § 9771(b).

       "Upon sentencing following a revocation of probation, the trial court is limited only by

the maximum sentence that it could have imposed originally at the time of the probationary

sentence." Coolbaugh, 770 A.2d at 792 (citations omitted). Once probation is revoked, a

sentence of total confinement may be imposed if any of the following conditions exist:

               (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 court

42 Pa.C.S. § 9771(c).

       In this case, the sentence Appellant received is appropriate. Appellant has accumulated a

criminal history stretching back to the 1970s. More significantly, this was Appellant's third

violation on this case and each violation stemmed from a new arrest. Appellant continues to

commit criminal offenses, including a number of retail thefts. The Court took into consideration

Appellant's mental health challenges and recommended that his current sentence be served in

SCI Waymmi so that the Department of Corrections could better address his mental health needs.

However, under the circumstances, Appellant's sentence was both lawful and proper. It

considered both his rehabilitative needs and the needs of the community with respect to the high

likelihood that he will commit another crime.




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                                           Conclusion

       For the foregoing reasons, Appellant's sentence was lawful and proper and did not

constitute an abuse of discretion. It was not an excessive or harsh sentence under the

circumstances of this matter. As a result, the within appeal is meritless and the Court

recommends that Appellant's judgment of sentence be affirmed.

                                                     By the Court:




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