J-S80008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

WILLIAM RAYMOND ROBERTS JR.

                            Appellant                    No. 528 MDA 2016


             Appeal from the Judgment of Sentence March 24, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005562-2013


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 10, 2017

        Williams Raymond Roberts, Jr., appeals from the judgment of

sentence, entered in the Court of Common Pleas of Berks County, following

revocation of his probation.          Roberts’ counsel has filed an application to

withdraw and an Anders/Santiago brief.1              Upon review, we affirm the

judgment of sentence and grant counsel’s application to withdraw.

        Roberts was charged with arson endangering persons,2 risking

catastrophe,3 and disorderly conduct4 in November 2013. One month later,
____________________________________________


1
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth
v.Santiago, 978 A.2d 349, 361 (Pa. 2009).
2
    18 Pa.C.S.A. § 3301(a)(1)(i).
3
    18 Pa.C.S.A. § 3302(b).
4
    18 Pa.C.S.A. § 5503(a)(1).
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he was charged with one count each of possession of drug paraphernalia 5

and harassment.6        The court consolidated the cases and, pursuant to a

negotiated plea agreement, Roberts pled guilty to one count of arson

(amended to 18 Pa.C.S.A. § 3301(d)(2) (reckless burning or exploding)),

and one count of possession of drug paraphernalia.        The court sentenced

Roberts to one to two years’ incarceration followed by three years’

probation.

        Roberts violated his probation and, following Gagnon I and Gagnon

II hearings,7 the court sentenced Roberts to six months to five years’

incarceration.     Roberts      filed a post-sentence motion, which the court

denied.

        On March 31, 2016, Roberts filed a notice of appeal and the trial court

directed counsel to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). On April 26, 2016, in lieu of a Rule

1925(b) statement, Roberts’ counsel filed a statement of his intent to file an

Anders/Santiago brief pursuant to Pa.R.A.P. 1925(c)(4).

        Counsel has filed an Anders/Santiago brief with this Court, in which

counsel asserts that Roberts has no non-frivolous issues to pursue on


____________________________________________


5
    35 P.S. § 780-113(a)(32).
6
    18 Pa.C.S.A. § 2709(a)(3).
7
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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appeal.   On August 2, 2016, counsel filed a corresponding application to

withdraw as counsel.

     Our Supreme Court recently set forth the requirements for counsel’s

brief when seeking to withdraw:

          (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 have led to the conclusion that the appeal
          is frivolous.

Santiago, 978 A.2d at 361.

     Counsel is required to provide a copy of the Anders brief to Roberts,

and advise him by letter of his right to “(1) retain new counsel to pursue the

appeal; (2) proceed pro se on appeal; or (3) raise any points that he

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).

     After our review, we find counsel has substantially complied with these

requirements.     See Anders Brief, at 7-14; Application to Withdraw as

Counsel, 8/2/16, at ¶¶ 5-6. The brief includes a summary of the history of

the case. See Anders Brief at 7-10. Counsel has identified the only issue



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that counsel believes could be raised, legality of sentence, and has discussed

why that issue is frivolous. Id. at 12-14. Counsel also has provided a copy

of the brief and a letter to Roberts that advised him that he could obtain new

counsel, proceed pro se, or raise additional issues with this Court. Letter,

7/28/16. Counsel attached the letter to the application to withdraw.

      After our review of the        Anders/Santiago brief and counsel’s

application to withdraw, we conclude that counsel has complied substantially

with Santiago. We now review the record to determine whether the case is

wholly frivolous. Santiago, 978 A.2d at 354.

      The only issue of arguable merit that counsel identifies is the legality

of Roberts’ sentence. Here, the court’s imposition of sentence following

revocation, 6 months to 5 years, exceeds the original term of probation.

Counsel notes that Roberts has correctly identified case law that holds that

“any sentence imposed after probation revocation must not exceed the

maximum      sentence   originally   imposed.”   See    Commonwealth        v.

Anderson, 643 A.2d 109 (Pa. Super. 1994). However, as counsel correctly

points out, that case was abrogated by Commonwealth v. Wallace, 870

A.2d 838 (Pa. 2005).

      In Wallace, our Supreme Court emphasized that upon revocation of

probation, the sentencing alternatives available to the court “shall be same

as were available at the time of initial sentencing.”    Id. at 842, quoting

Commonwealth v. Pierce, 441 A.2d 1218, 1219 (Pa. 1982) (emphasis in

original).

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          As it is well established that the sentencing alternatives
          available to a court at the time of initial sentencing are all
          of the alternatives statutorily available under the
          Sentencing Code, these authorities make clear that at any
          revocation of probation hearing, the court is
          similarly free to impose any sentence permitted
          under the Sentencing Code and is not restricted by
          the bounds of a negotiated plea agreement between
          a defendant and prosecutor.

Id. at 842-43 (emphasis added).

       Following the clear language of section 9771(b) and the rationale of

Wallace, as well as various Superior Court cases subsequent to Anderson

that declined to follow Anderson,8 we agree that Roberts’ challenge to the


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8
  See, e.g., Commonwealth v. Smith, 669 A.2d 1008 (Pa. Super. 1996)
(holding Anderson incorrectly held that trial court, upon resentencing, was
limited to maximum term contemplated in guilty plea and explicitly stating
that under Supreme Court’s holding in Pierce, trial court has same
sentencing options available to it upon resentencing as it did at time of initial
sentencing); Commonwealth v. Adebaike, 846 A.2d 759, 761 Pa. Super.
2004) (stating that “[t]he Commonwealth and trial court here are not the
only critics of Anderson on record” but following Anderson for its holding
on concurrent/consecutive sentences); Commonwealth v. Fish, 752 A.2d
921, 923 (Pa. Super. 2000) (“[U]pon 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.”);
Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001)
(quoting language in Fish as “the law applicable to revocation
proceedings”); Commonwealth v. Byrd, 663 A.2d 229, 231 (Pa. Super.
1995) (“The question is whether Anderson changed the law and limited the
trial court’s power to sentence after revocation of probation. We find that in
the absence of circumstances unique to Anderson, no such limitation was
imposed on the sentencing judge.”). As the Supreme Court in Wallace
noted, “Indeed, it is these decisions that have properly interpreted the
governing law and which should have been followed by the Superior Court
below. Wallace, 870 A.2d at 844.



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legality of his sentence is wholly frivolous. Further, our independent review

of the record reveals no other non-frivolous claims that could have been

raised. Therefore, we affirm the judgment of sentence and grant counsel’s

application to withdraw.

     Judgment of sentence affirmed. Application to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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