J-S47036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

BERNARD R. GILLESPIE

                            Appellant                   No. 1502 MDA 2015


             Appeal from the Judgment of Sentence August 5, 2015
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000692-2011


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED AUGUST 09, 2016

        Bernard R. Gillespie appeals from the judgment of sentence, entered

by the Court of Common Pleas of Lycoming County, following the revocation

of his sentence of intermediate punishment for criminal trespass.1 Gillespie’s

counsel also seeks to withdraw pursuant to the dictates of Anders v.

California, 386 U.S. 738 (1967), Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa.

1981).     Upon review, we grant counsel’s petition to withdraw and affirm

Gillespie’s judgment of sentence.

        The trial court stated the facts of this matter as follows:

        Gillespie was initially charged with burglary, criminal trespass
        and related charges. On February 14, 2012, he pled guilty to
____________________________________________


1
    18 Pa.C.S. § 3503(a).
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      Count 2, criminal trespass a felony of the second degree
      pursuant to a negotiated plea agreement for probation. . . . On
      March 27, 2012, Gillespie was sentenced to three years of
      probation with conditions that included, but were not limited to,
      Gillespie undergoing a drug and alcohol assessment and
      completing any recommended treatment.

      On April 25, 2013, under a different docket number, Gillespie’s
      parole was revoked and he was recommitted to serve six
      months. Gillespie had relapsed by using heroin. No further
      action was taken on this case.

      On September 12, 2013, Gillespie was again before the court.
      The court found probable cause to believe that Gillespie violated
      his supervision under five separate cases, including this one.
      Gillespie again was alleged to have used heroin.

                                       ...

      The court revoked his probation, but resentenced Gillespie to
      serve three years [of Intermediate Punishment], and included as
      a condition of his supervision that he successfully complete the
      Lycoming County Drug Court program.

      [Gillespie relapsed several more times, such that on] April 8,
      2015, Gillespie was removed from the Drug Court program.

Trial Court Opinion, 2/3/16, at 2-3.

      Following Gillespie’s removal from the drug court program, the trial

court sentenced him to three to six years’ incarceration on August 5, 2015.

Gillespie filed a timely post-sentence motion, which the court denied by

order entered August 13, 2015. Thereafter, Gillespie filed a timely notice of

appeal and court-ordered concise statement of errors complained of on




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appeal pursuant to Pa.R.A.P. 1925(b).2 On appeal, Gillespie asserts that his

sentence is excessive.

       Counsel has a filed a petition to withdraw pursuant to Anders,

McClendon, and 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). Based upon Anders and McClendon, counsel

seeking to withdraw must:           1) petition the court for leave to withdraw,

certifying that after a thorough review of the record, counsel has concluded

the issues to be raised are wholly frivolous; 2) file a brief referring to

anything in the record that might arguably support an appeal; and 3) furnish

a copy of the brief to the appellant and advise him of his right to obtain new

counsel or file a pro se brief raising any additional points that the appellant

deems worthy of review.         Commonwealth v. Hernandez, 783 A.2d 784,

786 (Pa. Super. 2001). Additionally, in Santiago, our Supreme Court held

that counsel must state the reasons for concluding the client’s appeal is

frivolous. Santiago, 978 A.2d at 361.

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2
  The trial court ordered Gillespie to file a Rule 1925(b) statement within 21
days of September 4, 2015. Gillespie’s counsel filed a petition seeking an
extension of time to file a Rule 1925(b) statement, asserting that she did not
receive a copy of the order until the deadline had passed. The petition was
granted and counsel filed a timely nunc pro tunc Rule 1925(b) statement on
October 15, 2015.




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       Instantly, counsel’s petition to withdraw states that she has examined

the record and has concluded that the appeal is wholly frivolous. Counsel

has also filed a brief in which she repeats the assertion that there are no

non-frivolous issues to be raised and provides her reasoning for concluding

the appeal is frivolous.       Counsel has notified Gillespie of the request to

withdraw and has provided him with a copy of the brief and a letter

explaining his right to proceed pro se or with privately retained counsel

regarding any other issues he believes might have merit. Accordingly, we

find   that   counsel    has    substantially    complied     with    the     procedural

requirements for withdrawal.

       Once counsel has satisfied the above requirements, this Court

conducts its own review of the proceedings and renders an independent

judgment      as   to   whether   the   appeal    is,   in   fact,   wholly    frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

       Gillespie’s sole contention is that his sentence is excessive, which

presents a challenge to the discretionary aspects of sentencing.                      An

appellant is not entitled to review of the discretionary aspects of sentencing

unless he or she satisfies 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.



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Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en

banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

     Here, Gillespie filed a timely notice of appeal and preserved this issue

in a motion to modify sentence. Gillespie’s brief fails to include a separate

concise statement of the reasons relied upon in challenging the discretionary

aspects of his sentence pursuant to Pa.R.A.P. 2119(f).        However, the

Commonwealth has not objected to the lack of a separate statement

pursuant to Rule 2119(f). See Commonwealth v. Stewart, 867 A.2d 589,

592 (Pa. Super. 2005) (declining to find waiver of discretionary aspects of

sentencing issue where Commonwealth did not object to lack of Rule 2119(f)

statement).   Thus, we turn to whether Gillespie presents a substantial

question that his sentence is not appropriate under the Sentencing Code.

     Gillespie’s claim is limited to the argument that the sentence he

received was longer than he expected and he has “changed during his time

in prison.” Brief for Appellant, at 11. This assertion neither indicates how

the sentence specifically violates the Sentencing Code nor how it is contrary

to a fundamental norm of the sentencing process. See Caldwell, supra at

768; see also Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.

2012) (“[A] bald assertion that a sentence is excessive does not by itself




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raise a substantial question justifying this Court’s review of the merits of the

underlying claim.”). Thus, Gillespie fails to raise a substantial question.3

       Based upon the foregoing and our independent review of the record,

we find Gillespie’s appeal to be meritless.         Therefore, we affirm the

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

       Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




____________________________________________


3
  Had Gillespie raised a substantial question, he nevertheless would not be
entitled to relief. In fashioning Gillespie’s sentence, the court specifically
noted Gillespie’s repeated relapses and inability to rehabilitate through
probation, intermediate punishment, drug court, or other rehabilitation
programs. Thus, the sentence was appropriate under the circumstances.
See Commonwealth v. Naranjo, 53 A.3d 66, 73 (Pa. Super. 2012) (we
cannot disturb sentence within statutory limits unless it is unreasonable).



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