J-S42031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

GREG SELNER

                             Appellant                No. 1628 WDA 2015


           Appeal from the Judgment of Sentence September 16, 2015
       in the Court of Common Pleas of Jefferson County Criminal Division
                        at No(s): CP-33-CR-0000500-2013

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 16, 2016

        Appellant, Greg Selner, appeals from the judgment of sentence

entered in the Jefferson County Court of Common Pleas following the

revocation of his probation.      Appellant’s counsel (“Counsel”) has filed a

petition to withdraw and an Anders/Santiago1 brief. We affirm and grant

Counsel’s petition to withdraw.

        On January 3, 2014, Appellant originally entered a negotiated plea to

one count of receiving stolen property.2       That same day, the trial court




*
    Former Justice specially assigned to the Superior Court.
1
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
2
  18 Pa.C.S. § 3925(a). Appellant stole a laptop computer and other items
from the home of his son’s mother. Aff. of Probable Cause, 6/5/13, at 1.
The offense was graded as a first-degree misdemeanor.
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imposed an agreed-upon sentence of five years’ probation.              Sentencing

Order, 1/3/14.

        According to the Jefferson County Adult Probation Department,

Appellant was arrested in Clearfield County on February 15, 2014, for theft

by unlawful taking.       On May 6, 2014, Appellant was again arrested in

Clearfield County for multiple counts of forgery and theft by unlawful taking,

as well as one count of receiving stolen property. Appellant pleaded guilty to

the Clearfield County charges on April 21, 2015, and the Clearfield County

court    imposed   an    aggregate   sentence   of   three   to   twelve   months’

imprisonment with a one-year probationary tail.

        The Jefferson County Probation Department filed a petition to revoke

Appellant’s probation on May 18, 2015, based on the new charges in

Clearfield County.      On June 5, 2015, Counsel entered his appearance on

behalf of Appellant. Appellant admitted the probation violation on June 17,

2015, and the trial court ordered a psychiatric evaluation for sentencing.

        The trial court conducted a sentencing hearing on September 16,

2015.    After reviewing the court-ordered psychiatric evaluation,3 the court

determined that Appellant was a threat to the community and the county

lacked adequate resources to address his mental health issues.               N.T.,

9/16/15, at 6-7. The court revoked Appellant’s probation and sentenced him


3
   A copy of the psychiatric evaluation was not included in the record
transmitted to this Court.



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to two to five years’ imprisonment in a state correctional facility, to run

consecutively to the Clearfield County sentence. Id. The court set a RRRI

minimum of 18 months and ordered credit for 129 days

       On September 30, 2015, Appellant filed a motion to modify the

sentence nunc pro tunc. The trial court denied the motion “in its entirety”

on the following day.      Order, 10/1/16.       Appellant timely appealed within

thirty days of the sentence following revocation and complied with the

court’s order to submit a Pa.R.A.P. 1925(b) statement.                 The court filed a

responsive Rule 1925(a) opinion suggesting that its sentence was proper.

       Appellant’s   counsel   has   filed   a     petition    to    withdraw     and   an

Anders/Santiago brief that identifies the following issue for review:

          Whether the trial court abused its discretion when it
          revoked Appellant’s probation/parole and re-sentenced him
          to serve a sentence of incarceration in the State
          Correctional Institution for a minimum of two (2) years to
          a maximum of five (5) years with credit for time served for
          [A]ppellant’s violation of probation/parole[?]

Anders/Santiago Brief at 4. Appellant has not filed an additional brief.

       Preliminarily, we must assess whether counsel’s petition and brief

meet    the   procedural   requirements      for     seeking        leave   to   withdraw.

Commonwealth v. Zeigler, 112 A.3d 656, 659 (Pa. Super. 2015). When

requesting to leave to withdraw,

          [c]ounsel must: 1) petition the court for leave to withdraw
          stating that, after making a conscientious examination of
          the record, counsel has determined that the appeal would
          be frivolous; 2) furnish a copy of the brief to the
          defendant; and 3) advise the defendant that he or she has


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           the right to retain private counsel or raise additional
           arguments [pro se] that the defendant deems worthy of
           the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted).

        Additionally,   our    Supreme   Court    has       set   forth   the    following

requirements for the brief accompanying counsel’s petition to withdraw:

           [C]ounsel 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.

        Instantly,   Counsel    has   stated   that    he     made    a   conscientious

examination of the record and concluded an appeal is frivolous. See Mot. to

Withdraw,     3/2/16,    at    1-2.   Counsel    has    provided      a   copy     of   his

Anders/Santiago brief to Appellant and advised him of his rights to raise

any additional points in this appeal by proceeding pro se or with private

counsel. See id. at 2; Letter from Counsel to Appellant, 3/1/16. Counsel’s

brief has set forth the reasons for his conclusion that the appeal is frivolous.4




4
    Counsel explained:




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See Anders/Santiago Brief at 9.       Thus, Counsel has complied with the

procedural requirements for seeking withdrawal, and we will review

Counsel’s assessment that Appellant’s intended sentencing claims are

frivolous. See Zeigler, 112 A.3d at 659.

     Counsel outlines five arguments. First, the sentence was “manifestly

unreasonable.” Anders/Santiago Brief at 8. Second, the court’s statement

of reasons for the sentence imposed was not adequate.       Id. at 9.   Third,

Appellant explained that he was not taking his medications when he

committed the Clearfield County offenses and needed the money to

purchase his medications. Id. at 8. Fourth, Appellant averred that he would

not pose a threat to the community if he took his medications. Id. Fifth, a

           Counsel . . . disagrees [with Appellant’s arguments],
        and avers that the conviction for new charges justified the
        sentence imposed.

           . . . the sentence imposed should call for
           confinement that is consistent with the protection of
           the public, the gravity of the offense as it relates to
           the impact of the victim and on the community, and
           the rehabilitative needs of the defendant. . . . .

        [42 Pa.C.S. § 9721(b)]

           Counsel . . . further avers that the sentence was not
        manifestly unreasonable given the gravity of the
        underlying offense and the violations, and the
        rehabilitative needs of [A]ppellant.

Anders/Santiago Brief at 9. Although set forth in boilerplate fashion, we
find Counsel’s stated reasons are adequate under the circumstances of this
appeal.




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county sentence would have been sufficient, and the court failed to consider

local alternatives for Appellant’s rehabilitation. Id.

      It is well settled that

            [c]hallenges to the discretionary aspects of
            sentencing do not entitle an appellant to appellate
            review as of right. Prior to reaching the merits of a
            discretionary sentencing issue:

               [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).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some

citations and punctuation omitted).

       Appellant adequately preserved these issues and arguments at the

sentencing hearing, in his motion to modify nunc pro tunc,5 and in his Rule




5
  Although Appellant’s motion to modify his sentence was not timely filed,
we discern no basis suggesting that the trial court intended to deny his
request to accept the motion nunc pro tunc.



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1925(b) statement.6       However, Appellant’s bald claims generally do not

raise substantial questions warranting further review. See Commonwealth

v. Haynes, 125 A.3d 800, 807-08 (Pa. Super. 2015), appeal denied, 140

A.3d 12 (Pa. 2016)

     In any event, we note that:

        [t]he 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. An abuse of discretion is more than
        an error in judgment—a sentencing court has not abused
        its discretion unless the record discloses that the judgment
        exercised was manifestly unreasonable, or the result of
        partiality, prejudice, bias or ill-will.

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (citation

omitted).

     Instantly, the trial court set forth its reasons for the sentence during

the following exchange:

           THE COURT: [to Appellant: D]o you wish to make a
        statement?

           [Appellant]: Sir, I wasn’t on my meds. That’s a very
        big deal with someone with mental health issues. I made
        bad choices because of that. I have nobody to blame but
        myself, but I ask you to look into that, that those things
        had a huge impact on what I did. They wouldn’t have
        happen if I would have been on my meds. I can go times
        without doing anything. And it doesn’t excuse what I did
        but explains why it happened. And I just ask you to give
        me grace and give me another shot. I can do this.


6
   Additionally, Counsel included in his       Anders/Santiago      brief   an
abbreviated Pa.R.A.P. 2119(f) statement.



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            THE COURT:          Well, looking at the psychological
         evaluation, which I went through in detail, actually even
         before you were brought back, because it was mailed to
         me when you were on your way back, you’re having
         hallucinations, auditory hallucinations, and psychiatrically
         hospitalized seven times. Visual hallucinations, things that
         I wasn’t expecting and things that I don’t believe our
         mental health community in the county or in this area has
         the ability to care for on a local level.

            So you did commit new charges. That calls for a total
         confinement sentence. I am going to revoke your
         probation and sentence you to no less than—

            [Appellant]: Can I say one more thing, sir? My ex-wife
         passed away in July. I have a daughter who needs me
         right now, and that has been a problem.

            THE COURT: Under your present mental state, you can’t
         care for her. So two to five years consecutive to Clearfield
         with RRRI eligible at 18 months.       And I’m going to
         recommend in the order that you be placed in a
         therapeutic community and in the Department of
         Corrections.

            [Appellant]: The state doesn’t have the where with all
         [sic], the care for me either at the jail.

            THE COURT: Well, at least they’ll keep the community
         safe, which I cannot ensure. You committed new crimes.
         You’re making your excuses.

               [Appellant]: I’m not making excuses, sir.

           THE COURT: Yes, you are. Don’t say you didn’t. That’s
         what you wanted.

N.T. at 5-7.

      In its Pa.R.A.P. 1925(a) opinion, the trial court further explained:

            As the record reflects, [Appellant] received a new
         conviction while on probation in Jefferson County, and
         pursuant to 42 Pa.C.S.[ ] § 9771(c), that fact alone


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       warranted a sentence of total         incarceration. His
       conviction, however, was not          the only relevant
       consideration.

           Aware that [Appellant]’s mental health was an issue,
       the [c]ourt ordered a psychiatric and psychological
       evaluation to help it determine the most appropriate
       sentence in this case, and as Chief Probation Officer [Paul]
       Ruffner observed, it revealed that [Appellant]’s condition
       was more severe than anyone had realized—more severe,
       in fact, than what our local mental health community could
       adequately treat. By his own admission, it had already led
       him to commit theft-related offenses other than that for
       which he was being supervised in this county, though he
       attempted to mitigate his culpability by claiming that he
       committed them “because he was in need of money and
       couldn’t afford his medication [and] was not on his
       medication at the time.” He would not have committed
       them, he claimed, had he been taking his medication.

           Even were the [c]ourt to accept that [Appellant]’s then
       untreated mental illness was to blame for his decisions to
       commit the offenses underlying his February 15, 2014 and
       May 6, 2014 arrests, that would not change the fact that
       our local mental health community’s inability to effectively
       treat his illness would make him a continuing threat to our
       citizens. Nor would it change the fact that he was more
       interested in using his diagnosis as an excuse for his
       criminal conduct than in receiving the treatment that
       would alleviate his psychiatric symptoms.             While
       [Appellant] would doubtlessly disagree with that
       assessment, the proof lay in the fact that he clearly used
       the proceeds of the February arrest for something other
       than the medication he claimed would have curbed his
       criminality. The [c]ourt is less than confident, therefore,
       that he would continue to comply with the limited
       treatment regimen locally available to him if given the
       opportunity.      Consequently, the [c]ourt is less than
       confident that the community would be safe were
       [Appellant] not committed to a facility where he could
       receive the necessary mental health services or, even if he
       chose to decline those services, would be unable to further
       victimize society.



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Trial Ct. Op., 12/15/15, at 1-2.

      Thus, we agree with Counsel that there is no record support for

Appellant’s assertion that the trial court’s statement of reasons for the

sentence was inadequate.        Moreover, the trial court expressly found that

Appellant was using his mental health condition as an excuse and Jefferson

County did not have adequate resources to address Appellant’s mental

health condition while keeping the community safe.                 In light of the

foregoing, we discern no basis in the record or the law supporting

Appellant’s   request   for   relief   based     on   an   excessive   or   manifestly

unreasonable sentence or an abused its discretion by the trial court.

      Accordingly, having reviewed the claims and arguments set forth in

Counsel’s Anders/Santiago brief in light of the record, we are constrained

to agree that this appeal is frivolous.    As our independent review reveals no

other non-frivolous issues, we affirm the judgment of sentence and grant

Counsel’s petition to withdraw.

      Judgment of sentence affirmed.              Counsel’s petition to withdraw

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2016




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