J-S26029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARK ALAN COLIAN

                            Appellant                  No. 1830 MDA 2014


          Appeal from the Judgment of Sentence of October 7, 2014
            In the Court of Common Pleas of Lackawanna County
              Criminal Division at No: CP-35-CR-0000139-2010


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                                  FILED MAY 01, 2015

       Mark Alan Colian appeals the judgment of sentence entered on

October 7, 2014, which was imposed following a violation of his probation.

Counsel for Colian has filed with this Court a motion to withdraw as counsel

together with an Anders1 brief. Herein, we conclude that Colian’s counsel

has satisfied the Anders/Santiago requirements, and we agree with

counsel that Colian has no meritorious issues to pursue on appeal.

Consequently, we grant counsel’s petition to withdraw as counsel, and we

affirm Colian’s judgment of sentence.

       The trial court set forth the relevant history of this case as follows:
____________________________________________


1
      See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). In Santiago, our Supreme Court
developed certain criteria that counsel must satisfy in order to ensure
compliance with the principles underlying the Anders decision.
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       On April 26, 2010, [Colian] pled guilty to one count of
       possession with intent to deliver heroin,[2] and in exchange, the
       other charges pending against [Colian] were nolle prossed. On
       July 14, 2010, [Colian] was sentenced to 21 to 48 months[’
       incarceration] followed by two years of special probation.

       On October 7, 2014, a Gagnon II[3] hearing was held and
       [Colian] stipulated to the violations of his probation, and in
       particular, admitted to leaving the jurisdiction, changing his
       residence and failing to maintain contact with parole supervision.
       [The trial court] noted that [Colian] had been a handful while
       serving the parole portion of his sentence, and his probation
       officer stated that he had absconded twice while on parole. The
       court stated that all he had to do was keep probation informed,
       and that his actions show[ed] a defiance of authority and
       willingness to flaunt authority. The court stated that it has an
       obligation of supervising him and making certain that the public
       is safe. The court noted that it had given him a break in his
       original sentence since he had a substantial amount of drugs and
       weapons were involved, but the court still made him RRRI
       eligible and boot camp eligible after wiping out a previous
       assault which would have precluded him from these programs.
       The court then revoked [Colian’s] probation and sentenced him
       to 12 to 48 months of incarceration.

       On October 8, 2014[, Colian]filed a motion for reconsideration
       which was denied on October 10, 2014. On October 29, 2014,
       [Colian] filed a notice of appeal, and on October 30, 2014, [the
       trial court] ordered [Colian] to file a concise statement of the
       [errors] complained of on appeal within 21 days pursuant to
       Pa.R.A.P. 1925(b). On November 17, 2014, [Colian] filed a
       statement of matters complained of on appeal. [On December
       18, 2014, the trial court issued an opinion pursuant to Pa.R.A.P.
       1925(a).]

Trial Court Opinion (“T.C.O.”), 12/18/2014, at 1-2 (emphasis added;

citations to notes of testimony omitted; some capitalization modified).
____________________________________________


2
       35 P.S. § 780-113(a)(30).
3
       See Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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      In her Anders brief, counsel for Colian has identified three potential

issues for our review:

      A. Whether the imposition of the 12 month to 48 month
         sentence of confinement on October 7, 2014, following the
         revocation of [Colian’s] probation violated the Double
         Jeopardy Clause of the Fifth Amendment as applied to the
         States through the Fourteenth Amendment?

      B. Whether the sentence imposed was harsh and excessive?

      C. Whether the lower court illegally re-sentenced [Colian]
         outside of the sentencing guidelines?

Anders Brief for Colian at 4.

      Because counsel for Colian proceeds pursuant to          Anders and

Santiago, we first must pass upon counsel’s petition to withdraw before

reviewing the merits of the issues identified in Colian’s brief.          See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). Prior to withdrawing as counsel under Anders, counsel must file a

brief that meets the requirements established by our Supreme Court in

Santiago.      Pursuant thereto, the    brief must   provide   the   following

information:

      (1)   a summary of the procedural history and facts, with
            citations to the record;
      (2)   reference to anything in the record that counsel believes
            arguably supports the appeal;
      (3)   counsel’s conclusion that the appeal is frivolous; and
      (4)   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.


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      Counsel also must provide a copy of the Anders brief to her client.

Attending the brief must be a letter that advises the client of his rights 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); see

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010). Finally,

to facilitate our review of counsel’s satisfaction of her obligations, she must

attach to her petition to withdraw as counsel the letter that she transmitted

to her client. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.

Super. 2005).

      Our review of counsel’s petition to withdraw and the accompanying

brief demonstrates that counsel has complied substantially with Santiago’s

requirements.    Counsel has provided a procedural history detailing the

events relevant to this appeal with appropriate citations to the record. See

Anders Brief for Colian at 5-6.       Counsel also has articulated Colian’s

arguments and has analyzed those issues with appropriate citations to the

record and case law. Ultimately, counsel has concluded that Colian has no

non-frivolous bases for challenging his judgment sentence. Id. at 14.

      Counsel also has sent Colian a letter informing him that she has

identified no meritorious issues to pursue on appeal; that counsel has filed

an application to withdraw from Colian’s representation; and that Colian may

find new counsel or proceed pro se. Counsel has attached the letter to her

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petition to withdraw, as is required by Millisock. See Petition to Withdraw

as Counsel, 1/9/2015. Accordingly, counsel has complied substantially with

Anders’ technical requirements. See Millisock, 873 A.2d at 751.

      We now must conduct an independent review of the record to

determine whether this appeal is, as counsel claims, wholly frivolous, or if

any meritorious issues may remain.       Santiago, 978 A.2d at 355 (quoting

Anders, 386 U.S. at 744) (“[T]he court—not counsel—then proceeds, after a

full examination of all the proceedings, to decide whether the case is wholly

frivolous. If it so finds it may grant counsel’s request to withdraw . . . .”).

      We begin with Colian’s first listed issue, wherein Colian would argue

that the sentence imposed by the trial court following his probation violation

constitutes a second sentence and a violation of the Double Jeopardy Clause

of the Fifth Amendment to the United States Constitution.           Generally, a

challenge to a sentence based upon double jeopardy principles implicates

the legality of a sentence, see Commonwealth v. Foster, 960 A.2d 160,

164 (Pa. Super. 2008), and our standard of review is de novo and our scope

of review is plenary.    Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.

Super. 2014).

      It is well-settled that Colian’s double jeopardy claim is frivolous.        In

Commonwealth v. Hunter, 468 A.2d 505 (Pa. Super. 1983), we explained

why such challenge has no merit as follows:

      It is axiomatic that the Double Jeopardy Clause of the Fifth
      Amendment [to] the Constitution protects against the imposition
      of multiple punishments for the same offense in the form of an

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      increase in the sentence. See Commonwealth v. Silverman,
      275 A.2d 308 (Pa. 1971). For purposes of double jeopardy
      analysis, probation is a punishment.        Commonwealth v.
      Vivian, 231 A.2d 301 (Pa. 1967), and a judgment of sentence,
      Commonwealth v. Nance, 434 A.2d 769, 773 n.7 (Pa. Super.
      1981). While probation is a final sentence that will provoke
      double jeopardy consequences, the very nature of probation is
      that it is a conditional sentence subject to revocation and the
      imposition of a further sentence upon breach of any of the
      conditions placed upon the grant or maintenance of probation.
      Commonwealth v. Colding, 393 A.2d 404 (Pa. 1978). The
      resentencing of an offender upon revocation of probation does
      not constitute a second punishment for the offense giving rise to
      the probation, but is an integral element of the original
      conditional sentence of probation.    See Commonwealth v.
      Pierce, 441 A.2d 1218 (Pa. 1982); Colding, supra; Vivian,
      supra.

Hunter, 468 A.2d at 507 (citations modified); see also Commonwealth v.

Mullins, 918 A.2d 82, 85 (Pa. 2007); Commonwealth v. Johnson, 967

A.2d 1001, 1005 (Pa. Super. 2009).          Thus, it is quite clear that Colian’s

sentence, which was based upon the conceded violations of his probation,

does not violate double jeopardy principles.

      In his next argument, Colian would argue that the sentence imposed

was harsh and excessive because it was based upon only technical violations

of his probation.     Such a claim implicates the discretionary aspects of

Colian’s sentence.

      Challenges     to   the   discretionary   aspects of sentencing are    not

reviewable as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.

Super. 2000). Rather, an appellant challenging the discretionary aspects of

his or her sentence must satisfy the following four-part test:



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        [W]e 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,
        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, 42 Pa.C.S. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some

citations omitted).

        We need not delve into the questions of whether Colian has presented

a substantial question or, if he has, whether the trial court abused its

discretion in fashioning the sentence, because Colian has not preserved this

issue for our review.     As noted earlier in the excerpt from Evans, Colian

must preserve his claim either at sentencing or in a post-sentence motion.

Colian has not done so. Colian did not argue at the Gagnon II hearing that

his sentence was harsh or excessive in light of the technical violations upon

which    the   sentence   was   imposed.     Moreover,    in   his   motion   for

reconsideration, Colian requested only that he be placed on house arrest

instead of being incarcerated.      He did not preserve the claim that the

sentence itself was harsh or excessive.     Thus, he has not met the second

element of the test espoused in Evans.            Consequently, his claim is

meritless.

        In his final claim, Colian would challenge his sentence based upon the

fact that the sentence imposed fell outside of the relevant sentencing

guideline range.      This claim also implicates the discretionary aspects of


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Colian’s sentence. See Commonwealth v. Tirado, 870 A.2d 362, 364-65

(Pa. Super. 2005). However, once more, Colian did not preserve this issue

before the trial court. Therefore, the claim is waived and is frivolous.

      Finally, Colian has filed with this Court a response to counsel’s Anders

brief, in which he argues that he was entitled to be credited on the new

sentence for the time that he has already served. A challenge to the trial

court’s failure to award credit for time served involves the legality of a

sentence; such a claim can be raised at any time, and cannot be waived.

Commonwealth v. Menezes, 871 A.2d 204, 207 (Pa. Super. 2005).

Recently, in Commonwealth v. Infante, 63 A.3d 358 (Pa. Super. 2013),

we discussed whether a defendant is entitled to credit for time served when

he is being re-sentenced following a probation violation:

      [A] defendant shall be given credit for any days spent in custody
      prior to the imposition of sentence, but only if such commitment
      is on the offense for which sentence is imposed. In the context
      of sentencing after a probation revocation, the court must give
      due consideration to the time the defendant has spent serving
      probation, but the court is not required to credit the defendant
      with any time spent on probation. Likewise, the defendant is
      not automatically granted “credit for time served while
      incarcerated on the original sentence unless the court
      imposes a new sentence that would result in the
      defendant serving time in excess of the statutory
      maximum.” [Commonwealth v. Crump, 995 A.2d 1280,
      1284 (Pa. Super. 2010)].

Infante, 63 A.3d at 367 (emphasis added; some citations omitted).

      Instantly, Colian pleaded guilty to possession with intent to deliver a

controlled substance.   Pursuant to 35 P.S. § 780-113(f)(1), the maximum


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penalty for that crime is fifteen years.     Colian originally was sentenced to

twenty-one to forty-eight months in prison.          On resentencing, he was

sentenced to an additional twelve to forty-eight months. In the aggregate,

the maximum amount of time that Colian could have spent in prison on

these two charges is ninety-six months, i.e., eight years.            Because the

aggregate of the two sentences would not exceed the statutory maximum of

fifteen years, Colian would not be entitled to time credit automatically, as he

now contends. See Infante and Crump, supra. Thus, this issue also has

no merit.

      Having reviewed counsel’s Anders/Santiago brief carefully, we

conclude that it complies with the technical requirements imposed by those

precedents. We further find that counsel has taken all steps necessary to

ensure that her client’s interests are protected. We also have conducted an

independent review of the record. Pursuant thereto, we have concluded that

counsel’s characterization and analysis of the record is accurate, and that no

non-frivolous challenges to Colian’s judgment of sentence will lie. Moreover,

our   review   has   revealed   no   other   non-frivolous   issues    that   merit

consideration on appeal.        Accordingly, we affirm Colian’s judgment of

sentence and grant counsel’s petition to withdraw.




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     Judgment of sentence affirmed.     Petition to withdraw as counsel

     granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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