J-S25017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID LEE BARNETT

                            Appellant                 No. 1329 WDA 2014


       Appeal from the Judgment of Sentence Entered July 8, 2014
             In the Court of Common Pleas of Jefferson County
Criminal Division at Nos: CP-33-CR-0000046-2010 and CP-33-CR-0000328-
                                   2010


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 23, 2015

        Appellant, David Lee Barnett, appeals from the July 8, 2014 judgment

of sentence imposing two to five years of incarceration for driving under the

influence of alcohol1 at No. CP-33-CR-0000046-2010 and a consecutive one

to five years of incarceration for unauthorized repair or sale of offensive

weapons2 at CP-33-CR-0000328-2010.             Counsel has filed a petition to

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




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3802.
2
    18 Pa.C.S.A. § 908.
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and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the

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

      Appellant has a history of violating the conditions of intermediate

punishment and probationary sentences.         Appellant pled guilty to the

aforementioned offenses on December 15, 2010 and the trial court imposed

three months to two years less one day of county incarceration followed by

one year and one day of probation for the weapons offense, and five years

of county restrictive intermediate punishment for DUI. After a violation, the

trial court, on November 18, 2011, revoked the previous sentences and

imposed a two-year state intermediate punishment (“SIP”) sentence

followed by three years of probation for DUI, and a concurrent 5 years of

probation for the weapons offense. The trial court imposed the sentences

presently on appeal after Appellant absconded from a halfway house during

his SIP sentence.

      Appellant filed a timely notice of appeal on July 27, 2014.      In his

Pa.R.A.P. 1925(b) statement, Appellant asserted the trial court abused its

sentencing discretion because it failed to place on the record an adequate

explanation for the sentence it imposed. Subsequently, appointed counsel

filed a brief and petition to withdraw pursuant to Anders and Santiago. We

must first discern whether counsel’s filings comply with the dictates of those

two cases.

      Counsel’s brief must do the following:


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      (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 must also advise the defendant 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), appeal denied, 936 A.2d 40

(Pa. 2007).     We have reviewed counsel’s filings and found them in

compliance with the foregoing. Appellant has not filed any response.

      In the Anders Brief, counsel addresses Appellant’s challenge to the

discretionary aspects of the trial court’s sentence. To preserve this issue, an

appellant must:    (1) raise it at sentencing or in a timely post-sentence

motion; (2) file a timely appeal; (3) include in his brief a concise statement

of the reasons relied upon for allowance of appeal, per Pa.R.A.P. 2119(f);

and (4) set forth in the Rule 2119(f) statement a substantial question as to

the propriety of the sentence.     Commonwealth v. Malovich, 903 A.2d

1247, 1250 (Pa. Super. 2006).       In the Anders Brief, counsel correctly

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concludes Appellant has waived any challenge to the trial court’s sentencing

discretion because he did not raise it at sentencing or in a post-sentence

motion.3     Thus, he cannot obtain relief on direct appeal.     We observe,

nonetheless, that the trial court explained its sentencing rationale, noting

Appellant’s ongoing criminal prosecution for escape from the halfway house

and his persistent drug problem. N.T. Sentencing, 7/8/14, at 10-11. The

court noted that a potentially lengthy parole could assist Appellant’s

rehabilitation. Id. at 11.

       The Anders Brief also notes, without citation to authority, that both

sentences fall within the applicable statutory maximum.            Appellant’s

weapons offense was a first-degree misdemeanor.       18 Pa.C.S.A. § 908(a).

The trial court imposed the lawful maximum for this offense.4 18 Pa.C.S.A.

§ 1104(a)(1). Similarly, Appellant’s violation of 75 Pa.C.S.A. § 3802(c) was

treated as a first-degree misdemeanor under the circumstances of this case.

N.T. Sentencing, 7/8/14, at 11. See 75 Pa.C.S.A. § 3803(b)(4). Thus, the

trial court imposed the lawful maximum for both offenses. We agree with

counsel that the issues set forth in the Anders Brief lack arguable merit.


____________________________________________


3
    Private counsel represented Appellant at sentencing and subsequently
withdrew. The trial court appointed a public defender to represent Appellant
in this appeal.
4
  We observe that the trial court credited Appellant for prior time served.
N.T. Sentencing, 7/8/14, at 11.



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      We have conducted an independent review of the record in accord with

Santiago.     Santiago, 978 A.2d at 355 n.5.          In particular, we note

Appellant’s frank admission that he deliberately absconded from the halfway

house. N.T. Sentencing, 7/8/14, at 10. Given the clarity of the record on

the violation that resulted in the revocation and resentencing, the legality of

the sentence imposed, and Appellant’s failure to preserve a challenge to the

discretionary aspects of his sentence, we conclude Appellant cannot raise

any non-frivolous arguments in this appeal.         We therefore 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: 6/23/2015




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