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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHALMUS HARRIS

                            Appellant                No. 654 EDA 2013


           Appeal from the Judgment of Sentence January 25, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014097-2010


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 12, 2016

        Appellant, Chalmus Harris, appeals from the January 25, 2013

aggregate judgment of sentence of two to four year’s imprisonment,

followed by two years’ probation, imposed following the revocation of his

probation.     Contemporaneously with this appeal, Appellant’s counsel has

filed a petition to withdraw and an Anders1 brief, stating that the appeal is

wholly frivolous. After careful review, we affirm and grant counsel’s petition

to withdraw.

        We summarize the relevant procedural history of this case as follows.

On April 30, 2012, Appellant pled guilty to one count each of corruption of



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1
    Anders v. California, 386 U.S. 738 (1967).
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minors and indecent assault.2          That same day, the trial court imposed a

sentence of 11½ to 23 months’ imprisonment, plus 3 years’ probation for

corruption of minors.         On August 27, 2012, the trial court imposed a

consecutive sentence of five years’ probation for indecent assault, following

a SVP hearing.

        On January 11, 2013, a detainer was issued, alleging that Appellant

had violated the terms of his probation. The trial court conducted a Gagnon

II3 hearing on January 25, 2013. At the conclusion of said hearing, the trial

court found that Appellant had violated his probation, revoked the same, and

sentenced Appellant to two to four years’ imprisonment, plus two years’

probation for indecent assault, and no further penalty for corruption of

minors.     Appellant filed an untimely motion to reconsider sentence on

February 15, 2013, which the trial court did not resolve.4 On February 25,

2013, Appellant filed a timely notice of appeal.5


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2
    18 Pa.C.S.A. §§ 6301(a)(1) and 3126(a)(7), respectively.
3
    Gagnon v. Scarpelli, 411 U.S. 778, (1973).
4
  This motion is not contained within the certified record but is notated on
the trial court’s docket.
5
   On June 14, 2013, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b).          On July 5, 2013,
Appellant’s counsel filed a statement of intent to file an Anders brief under
Rule 1925(c)(4). The trial court did not issue a Rule 1925(a) opinion. See
Commonwealth v. McBride, 957 A.2d 752, 758 (Pa. Super. 2008) (stating
(Footnote Continued Next Page)


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      In the Anders Brief, counsel has raised the following issues for our

review.

             1.        Did the [trial] court err in finding that
                       [Appellant] violated his parole and probation,
                       thereby justifying the imposition of a new
                       sentence of incarceration?

             2.        Was [Appellant]’s sentence legal?

             3.        Did the [trial] court err in not acting upon
                       [Appellant]’s post-sentence motions?

Anders Brief at 3.

      “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. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

                    [W]e hold that in the Anders brief that
             accompanies court-appointed counsel’s petition to
             withdraw, counsel 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,
                       _______________________
(Footnote Continued)

that a Rule 1925(a) opinion is not required upon the filing of a Rule
1925(c)(4) statement of intent to file an Anders brief). Appellant has not
filed a response to the Anders brief.



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              controlling case law, and/or statutes on point that
              have led to the conclusion that the appeal is
              frivolous.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

              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.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation 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.” Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

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

“this Court must conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).




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      In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Second, counsel

advances relevant portions of the record that arguably support Appellant’s

claims on appeal.    Third, counsel concluded, “this appeal would be wholly

frivolous[.]”   Anders Brief at 15.   Lastly, counsel has complied with the

requirements set forth in Millisock. As a result, we proceed to conduct an

independent review to ascertain if the appeal is indeed wholly frivolous.

      In the first issue raised in the Anders brief, Appellant avers that the

trial court erred in finding Appellant in violation of his probation and parole.

Anders Brief at 10. We begin by noting our well-settled standard of review.

                   In general, 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.
                   Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
                   Our standard of 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 Pa.C.S.A. §
                   9771(b); Commonwealth v. Gheen, 688
                   A.2d 1206, 1207–08 (Pa. Super. 1997) (the
                   scope of review in an appeal following a
                   sentence imposed after probation revocation is
                   limited to the validity of the revocation
                   proceedings and the legality of the judgment of
                   sentence). Once probation has been revoked,
                   a sentence of total confinement may be
                   imposed if any of the following conditions
                   exist: (1) the defendant has been convicted of

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                     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.A. § 9771(c);
                     Commonwealth v. Coolbaugh, 770 A.2d
                     788, 792 (Pa. Super. 2001).

              Commonwealth v. Hoover, 909 A.2d 321, 322–
              323 (Pa. Super. 2006).

Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013) (parallel

citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

       In this case, the parties agree that the trial court found Appellant

violated the terms of his probation by testing positive for marijuana and

failing to complete his sex offender treatment program.         Anders Brief 12;

Commonwealth’s Brief at 7.6 This was legally sufficient to revoke Appellant’s

probation. See Commonwealth v. A.R., 990 A.2d 1, 5 (Pa. Super. 2010)

(concluding that the defendant’s probation was properly revoked where,
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6
  The certified record does not contain the transcripts from any of the
proceedings below, and it appears that said transcripts, although requested
by Appellant, are unavailable. Instead, the parties agreed to proceed
through a Pa.R.A.P. 1923 Statement in Absence of Transcript. However, the
Rule 1923 statement only states, “[trial] counsel’s file notations indicate only
the date of the hearing, the courtroom, the names of parties and the
revocation sentence, which are all consistent with th[e] information as it
appears in the CPCMS docket for this case for January 25, 2013. The file
notations also indicate that the matter involved technical violations only.”
Pa.R.A.P. 1923 Statement, 7/31/14, at 1. Although the parties’ briefs refer
to a Gagnon II Summary Sheet, said sheet is not contained within the
certified record. However, given the parties’ agreement on the nature of the
violations, the absence of transcripts does not preclude our analysis as to
the trial court’s determination that Appellant violated the terms of his
probation.



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among other things, he failed to comply with his sexual offender treatment

program), affirmed, 80 A.3d 1180 (Pa. 2013).

      Appellant also avers that the trial court failed to comply with Section

9771(c) of the Sentencing Code when it ordered him to serve a sentence of

confinement.      Anders Brief at 11-12. We note that this issue pertains to

the discretionary aspects of the sentence. Commonwealth v. Schutzues,

54 A.3d 86, 98 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

It is axiomatic that in this Commonwealth, “[t]here is no absolute right to

appeal    when     challenging    the   discretionary   aspect   of   a    sentence.”

Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation

omitted).       When an appellant raises an argument pertaining to the

discretionary aspects of the sentence, this Court considers such an argument

to be a petition for permission to appeal. Commonwealth v. Buterbaugh,

91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal

denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this

Court determines that there is a substantial question that the sentence was

not appropriate under the sentencing code.” Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks

and citation omitted).

      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether     a    petition   for   permission   to   appeal   should   be     granted.


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Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

            (1) [W]hether appellant has 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, 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.A.] § 9781(b).

Id.

      In the case sub judice, Appellant filed a timely notice of appeal, but an

untimely motion for reconsideration of sentence.        Furthermore, the record

does not contain the transcripts from the trial court’s proceedings, nor does

the Rule 1923 statement indicate that this issue was raised in the trial court.

As there is no indication that this issue was ever properly presented to the

trial court for it to review, we deem it waived on appeal. See id.; Pa.R.A.P.

302(a) (stating, “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal[]”).

      In the second issue raised in the Anders brief, Appellant avers that his

sentences are illegal.   Anders Brief at 12.         We begin by noting that a

challenge to the legality of the sentence can never be waived and may be

raised by this Court sua sponte.     Orellana, supra at 883 n.7        (citation

omitted); see also Commonwealth v. Borovichka, 18 A.3d 1242, 1254


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(Pa. Super. 2011) (stating, “[a] challenge to the legality of a sentence …

may be entertained as long as the reviewing court has jurisdiction[]”).

       It is also well-established that “[i]f no statutory authorization exists for

a particular sentence, that sentence is illegal and subject to correction.”

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citation

omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the

legality of a sentence are questions of law[.] … Our standard of review over

such   questions    is   de   novo   and   our   scope   of   review   is   plenary.”

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citations

omitted).   Furthermore, in the context of revocation proceedings, “[u]pon

resentencing, the court is vested with the same alternatives it initially

possessed.”    Commonwealth v. Mazzetti, 44 A.3d 58, 65 (Pa. 2012);

accord 42 Pa.C.S.A. § 9771(b).

       Instantly, the trial court imposed a new sentence of two to four years’

imprisonment, plus two years’ probation for indecent assault, and no further

penalty for corruption of minors. The indecent assault count in this case was

graded as a third-degree felony, for which the statutory maximum is seven

years. 18 Pa.C.S.A. § 1103(3). Therefore, Appellant’s maximum sentence

is four years’ imprisonment, with a two year probationary tail, for a total

maximum sentence of six years.         See, e.g., Commonwealth v. Crump,

995 A.2d 1280, 1284 (Pa. Super. 2010) (stating, “a defendant cannot be

given a term of probation which exceeds the statutory maximum[]”). As the


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total sentence is less than the statutory maximum for a third-degree felony,

Appellant’s new sentence is not illegal.

      In the last issue in the Anders brief, Appellant avers that the trial

court abused its discretion when it did not decide his motion for

reconsideration of sentence. Anders Brief at 13. As noted above, the trial

court imposed the new sentence in open court on January 25, 2013.

Pennsylvania Rule of Criminal Procedure 708(E) states that “[a] motion to

modify a sentence imposed after a revocation shall be filed within 10 days of

the date of imposition.”      Pa.R.Crim.P. 708(E).     Here, the motion for

modification of sentence was untimely filed on February 15, 2013, 21 days

after the imposition of sentence.    Although the trial court had jurisdiction

over the case until Appellant’s notice of appeal was filed, it was not required

to address a motion that was not timely filed. See, e.g., id. (stating, “[t]he

filing of a motion to modify sentence will not toll the 30-day appeal

period[]”); accord Commonwealth v. Heilman, 876 A.2d 1021, 1026 (Pa.

Super. 2005) (citations omitted). As a result, this third issue lacks merit.

      Based on the foregoing, we agree with counsel that the three issues

raised in the Anders brief are devoid of merit.         In addition, we have

reviewed the certified record consistent with Flowers and have discovered

no additional arguably meritorious issues. Accordingly, we grant counsel’s

petition to withdraw and the trial court’s January 25, 2013 judgment of

sentence is affirmed.


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     Judgment of sentence affirmed.     Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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