J-S12033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :         IN THE SUPERIOR COURT OF
                                          :               PENNSYLVANIA
             v.                           :
                                          :
JAY TYLER BARD,                           :
                                          :
                   Appellant              :    Nos. 1460, 1461, 1462 MDA 2016

            Appeal from the Judgment of Sentence August 10, 2016
               in the Court of Common Pleas of Franklin County,
              Criminal Division, No(s): CP-28-CR-0000206-2014,
              CP-28-CR-0001558-2012, CP-28-CR-0001856-2013

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED MARCH 21, 2017

        Jay Tyler Bard (“Bard”) appeals from the judgments of sentence

entered following the revocation of probation for his separate convictions of

forgery, retail theft and possession of a controlled substance.1 Counsel for

Bard has filed a Petition to Withdraw from representation, and a brief

pursuant     to   Anders   v.   California,   386    U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                   We grant

counsel’s Petition to Withdraw and affirm Bard’s judgments of sentence.2

        In its Opinion, the trial court concisely summarized the history

underlying the instant appeal.     See Trial Court Opinion, 10/2/16, at 1-2




1
    18 Pa.C.S.A. §§ 4101(a)(2), 3929(a)(1); 35 P.S. § 780-113(a)(1).
2
  Bard filed separate appeals of the sentences imposed upon the revocation
of each sentence of probation. This Court consolidated the appeals for
review.
J-S12033-17


(unnumbered). We adopt the trial court’s recitation for the purpose of this

appeal. See id.

     Before addressing Bard’s claims, this Court “must first pass upon

counsel’s petition to withdraw[.]”     Commonwealth v. Orellana, 86 A.3d

877, 880 (Pa. Super. 2014).

     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 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.”

Orellana, 86 A.3d at 879-80 (some citations omitted). “Once counsel has

satisfied the above 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.”


                                     -2-
J-S12033-17


Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008)

(citation omitted).

      Here, counsel’s Petition to Withdraw states that he has reviewed the

record and concluded that the appeal is frivolous.        Additionally, counsel

notified Bard that he was seeking permission to withdraw, furnished Bard

with copies of the Petition and Anders Brief, and advised Bard of his right to

retain new counsel or proceed pro se to raise any points he believes worthy

of this Court’s attention. Accordingly, counsel has satisfied the procedural

requirements of Anders.      In addition, counsel’s Anders Brief meets the

substantive dictates of Santiago.      Accordingly, we will proceed with our

independent review of the trial court’s proceedings to determine whether

Bard’s appeal is wholly frivolous.

      In the Anders Brief, Bard presents the following claims for our review:

      1. Did the trial court abuse its discretion when it sentenced
      [Bard] to a sentence of 9 months to 60 months in a State
      Correctional Institution [for his conviction of forgery at No.]
      1558-2012?

      2. Did the trial court abuse its discretion when it sentenced
      [Bard] to a sentence of 6 months to 36 months in a State
      Correctional Institution [for his conviction of retail theft at No.]
      1856-2013?

      3. Did the trial court abuse its discretion when it sentenced
      [Bard] to a sentence of 3 months to 12 months in a State
      Correctional Institution [for his conviction of simple possession
      at No.] 206-2014?

Anders Brief at 9.




                                     -3-
J-S12033-17


     Bard’s claims challenge the discretionary aspects of his sentences,

from which there is no right of appeal.       See 42 Pa.C.S.A. § 9781(b).

Instead, Bard must petition this Court for permission to appeal the

discretionary aspects of his sentences. Id.

     As this Court has explained,

     To reach the merits of a discretionary sentencing issue, we
     conduct a four-part analysis to determine:            (1) whether
     appellant filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
     whether the issue was properly preserved at sentencing or in a
     motion to reconsider and modify sentence,[3] 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[.]

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (footnote

added).

     Here, Bard timely filed a Notice of Appeal, and properly preserved his

claims in a post-sentence motion.       The Anders Brief also contains a

Pa.R.A.P. 2119(f) Statement of Reasons relied upon for allowance of appeal.

Consequently, we next address whether the appeal presents a substantial

question.

     The determination of what constitutes a substantial question is

evaluated on a case-by-case basis. See Commonwealth v. Paul, 925 A.2d

3
  “[W]hen a court revokes probation and imposes a new sentence, a criminal
defendant needs to preserve challenges to the discretionary aspects of that
sentence either by objecting during the revocation sentencing or by filing a
post-sentence motion.” Commonwealth v. Kalichak, 943 A.2d 285, 289
(Pa. Super. 2008).



                                 -4-
J-S12033-17


825, 828 (Pa. Super. 2009).    “A substantial question exits 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) (internal citations and quotation marks omitted).

     In his Rule 2119(f) Statement, Bard’s counsel states that,

     [d]ue to the fact that [Bard] received a legal sentence following
     a re-sentencing hearing, it is undersigned counsel’s position that
     Bard is unable to put forth a colorable argument that his
     sentences were inconsistent with a specific provision of the
     Sentencing Code, or contrary to the fundamental norms which
     underlie the sentencing process, … so as to justify permission to
     appeal in the Superior Court.

Anders Brief at 13.    Notwithstanding the inadequacy of the Rule 2119(f)

Statement, we conduct our own independent review of the trial court’s

proceedings to determine whether there exist any non-frivolous issues that

could be raised in this appeal. See Wimbush, 951 A.2d at 382.

     In his Post-Sentence Motion, Bard sought a modification of his

sentence, requesting

     the opportunity to serve a term of imprisonment locally in the
     Franklin County Jail. He makes this request based on his desire
     to maintain his local employment through the Work Release
     Program[,] and to be nearer to his family, including his son, who
     are his support system. Additionally, he notes that the basis for
     his violation of supervision is receiving new charges[,] and those
     charges are merely pending at this point, as well as being behind
     on payments, which is due to his current incarceration.




                                 -5-
J-S12033-17


Post-Sentence Motion, 8/18/16, at 2. From Bard’s Post-Sentence Motion, it

appears that he challenged the fact that his sentences were to be served in

a state correctional facility, rather than the county jail.

      In his Motion and on appeal, Bard failed to refer to any particular

provision of the Sentencing Code that requires a sentence following multiple

violations of probation to be served in a county jail rather than a state

correctional facility. Accordingly, we could conclude that Bard has failed to

raise a substantial question. Cf. Commonwealth v. Hartle, 894 A.2d 800,

806 (Pa. Super. 2006) (holding that claim that sentencing court abused its

discretion by sentencing defendant to serve his sentence in a state

correctional facility, rather than county jail, raised a substantial question

where the defendant was able to point to a violation of particular provision of

sentencing guidelines). However, as Bard’s present counsel filed the Post-

Sentence Motion and, on appeal, a Petition to Withdraw, we will address

Bard’s substantive claim in an abundance of caution.

      “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion.” Clarke, 70 A.3d at 1287 (citation omitted).

On appeal from resentencing following the revocation of probation, our

review is limited to determining the validity of the probation revocation

proceedings and the authority of the sentencing court to consider the same

sentencing alternatives that it had at the time of the initial sentencing. 42



                                    -6-
J-S12033-17


Pa.C.S.A. § 9771(b). Once probation has been revoked, a sentence of total

confinement may be imposed if “the defendant has been convicted of

another crime; or the conduct of the defendant indicates that it is likely that

he will commit another crime if he is not imprisoned; or, such a sentence is

essential to vindicate the authority of court.”          Commonwealth v.

Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001) (quoting 42 Pa.C.S.A.

§ 9771(c)).

      In its Opinion, the trial court addressed Bard’s challenge to the

sentences imposed, and concluded that the challenge lacks merit. See Trial

Court Opinion, 10/2/16, at 2-4 (unnumbered).       We agree with the sound

reasoning of the trial court, as set forth in its Opinion, and affirm on this

basis. See id.

      Finally, our independent review discloses no other non-frivolous claims

that Bard could raise on appeal. Accordingly, we grant counsel’s Petition to

Withdraw, and affirm Bard’s judgments of sentence.

      Petition to Withdraw granted. Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/21/2017




                                  -7-
                                                                   Circulated 03/10/2017 09:47 AM




   IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF
              PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania,             Criminal Action/
                                                      .,,/
             vs.                          Nos. 1558-2012; 1856-2013; 206-2014

Jay Tyler Bard,
              Defendant                   Honorable Carol L. Van Horn




              OPINION sur PA. R.A.P. 1925(a) AND ORDER OF COUR]'.




Before Van Horn, P.J.
     IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIALDISTRICTOF
                       PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania,                                CriminalAction

                 vs.                                         Nos. 1558-2012; 1856-2013; 206-2014

Jay Tyler Bard,
             Defendant                                       HonorableCarolL. Van Horn


                                     STATEMENT OF THE CASE

         On October 10, 2012, the above-captioned Defendant, Jay Tyler Bard, pled guilty to one

count of Forgery.1 On November 14, 2012, Defendant was sentenced to 24 months of Probation.

Since receiving his sentence, Defendant has violated the terms of his supervision by the Franklin

County Probation Department ("Probation Department") on four separate occasions. As a result

of his most recent violation, Defendant was sentenced by this Court on August 20, 2016, to a

period of 9-60 months in a State Correctional Institution ("SCI").

         On November 20, 2013, Defendant pled guilty to one count of Retail Theft.2 The same

day, Defendant was sentenced to 48 months of Probation. Since receiving this sentence,

Defendant has violated the terms of his supervision by the Probation Department on three

separate occasions. As a result of his most recent violation, Defendant was sentenced by this

Court on August 20, 2016, to a period of 6-36 months in a SCI.3

         On January 28, Defendant pled guilty to one count of Simple Possession.4 The same day,

Defendant was sentenced to 9 months of Intermediate Punishment ("IP"), Restrictive

Intermediate Punishments ("RIP") for 1 month, followed by 2 months of Intensive Supervision.


1
  18 Pa. C.S.A. § 410l(a)(2). This criminal action is docketed under case number 1558-2012.
2
  18 Pa. C.S.A. § 3929(a)(l). This criminal action is docketed under case number 1856-2013.
3
  This sentence for case number 1856-2013 is to run concurrently with the sentence imposed on the same date for
case number 1558-2012.
4
  18 Pa. C.S.A. § 780-l 13(a)(l). This criminal action is docketed under case number 206-2014.
Since receiving this sentence, Defendant has violated the terms and conditions of his IP on two

separate occasions. As a result of his most recent violation, Defendant was sentenced by this

Court on August 20, 2016, to a period of 3-12 months in a SCI. 5

         Defendant filed a Post-Sentence Motion to Modify Sentence on August 18, 2016. This

Court denied the Motion on August 22, 2016. Defendant timely filed a Notice of Appeal on

September 6, 2016. Pursuant to this Court's order, Defendant's counsel timely filed a concise

statement of matters complained of on appeal on September 16, 2016.

         On September 8, 2016, Defendant's appeals in each case were consolidated by Order of

the Superior Court. The Court will now respond to Defendant's claims of error in this Opinion

and Order of Court pursuant to Pa. R.A.P. 1925(a).

                                             ISSUES RAISED

         Defendant raises the following issues in his Concise Statement:6

    1.   Whether the Trial Court abused its discretion when it sentenced Defendant to a sentence

         of 9 months to 60 months in a SCI in case 1558-2012?

    2. Whether the Trial Court abused its discretion when it sentenced Defendant to a sentence

         of 6 months to 36 months in a SCI in case 1856-2013?

    3. Whether the Trial Court abused its discretion when it sentenced Defendant to a sentence

         of 3 months to 12 months in a SCI in case 206-2014?

                                               DISCUSSION

         "Upon revoking probation, a sentencing court may choose from any of the sentencing

options that existed at the time of original sentencing, including incarceration." Commonwealth

v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (citing 42 Pa. C.S.A. § 9771(b)). "[T]he trial

5
  This sentence for case number 206-2014 is to commence at the expiration of the sentence imposed on the same
date for case number 1558-2012.
6
  Concise Statement of Errors Complained of on Appeal, September 16, 2016.
court is limited only by the maximum sentence that it could have imposed originally at the time

of the probationary sentence." Id. (quoting Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.

Super. 2013) (internal quotation marks and citations omitted)).

        Here, Defendant was resentenced for violating the terms of all three matters for violating

the terms of his parole. 7 The Commonwealth represented to this Court that it was in agreement

with the Probation Department's recommendation of an aggregate sentence of six (6) years total

maximum sentence. T.P. Sentencing, August 10, 2016, at 2. The minimum sentence was one

(1) year. Id.

        When imposing a sentence following a probation revocation, "the record as a whole must

reflect the sentencing court's consideration of the facts of the crime and character of the

offender." Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).

        At the August 10, 2016 sentencing hearing, this Court stated:

                 Court: Sir, I reviewed the summary sheet that was prepared by the
                 Probation Department, which really is a packet of information.
                 You have accepted responsibility for receiving new charges.

                 I asked questions as to the status of that case because it's very
                 important to me to know what happened in that case involving the
                 new charges. Attorney Mangieri reported there was a hearing and
                 the MDJ found sufficient cause to move the case forward to trial.
                 That is a sufficient basis for the violation and for me resentencing
                 you at this point.

                 I do note from the report that this is your fourth violation. You had
                 the opportunity to attend the Day Reporting Center. You've been
                 on electronic monitoring; intense supervision; GPS tracking; Teen
                 Challenge, which you did successfully complete; and other drug
                 and alcohol treatment programs.              However, despite this
                 intervention, you have received new charges.

                 I'm going to sentence you in accordance with the recommendation
                 of the Probation Department.

7
 Defendant was granted parole on September 23, 2014, effective September 26, 2014, for a period of 57 months 6
days under the supervision of the Probation Department.
T.P. Sentencing, at 6- 7. It is clear that this Court reviewed the resentence summary sheet giving

due consideration to the facts and character of Defendant's crimes.

       Furthermore, in Defendant's Concise Statement of Matters Complained of on Appeal,

Counsel for Defendant concedes that there are no non-frivolous issues to be raised on appeal and

acknowledges her intent to file an Anders brief at the Superior Court regarding the current issue.

As noted by the Defense Counsel, the issue before this Court has no merit as the Defendant was

given a legal sentence on his probation violation. Review of the sentencing hearing transcript

confirms this.

       It is clear that Defendant, after being afforded several opportunities to satisfy his

obligations locally, was given a legal sentence to be served at a SCI. Accordingly, this Court

finds the issues raised by the Defendant meritless and respectfully requests the Superior Court to

dismiss the instant appeal.
    IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF
              PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania,                            Criminal Action

                 vs.                                     No. 1558-201~ 18$-2013; 206-2014

Jay Tyler Bard,
             Defendant                                   Honorable Carol L. Van Horn


                                          ORDER OF COURT

        AND NOW THIS _ifDAY                OF October, 2016, pursuant to Pa. R.A.P. 1931(c),

        IT IS HEREBY ORDERED THAT the Clerk of Courts of Franklin County
shall promptly transmit to the Prothonotary of the Supreme Court the record in this matter
along with the attached Opinion sur Pa. R.A.P. 1925(a).

        Pursuant to Pa. R. Crim. P. 114, the Clerk of Courts shall immediately docket this
 Opinion and Order of Court and record in the docket the date it was made. The Clerk shall
forthwith furnish a copy of the Opinion and Order of Court, by mail or personal delivery, to each
party or attorney, and shall record in the docket the time and manner thereof



                                                         By the Court,




                                                                   Carol L.Van Hom, P.J.

copies:
Franklin County District Attorney's Office
Shannon E. Barnett, Esq., Counsel for Defendant
