J-S35005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JOSHUA SCOTT SCHAUER,

                         Appellant                  No. 1994 MDA 2017


    Appeal from the Judgment of Sentence Entered November 22, 2017
             In the Court of Common Pleas of Lebanon County
           Criminal Division at No(s): CP-38-CR-0000761-2012


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 27, 2018

     Appellant, Joshua Scott Schauer, appeals from the judgment of

sentence of 16 months’ to 10 years’ incarceration, imposed after he was

convicted by a jury of delivering a controlled substance, criminal use of a

communication facility, and two counts of conspiracy. On appeal, Appellant

seeks to challenge certain aspects of his sentence. Additionally, his counsel,

Joseph A. Crowe, Esq., has petitioned to withdraw his representation of

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,

we affirm Appellant’s judgment of sentence and grant counsel’s petition to

withdraw.

     The facts underlying Appellant’s convictions are not pertinent to his

present appeal. We only note that a jury convicted Appellant of the above-
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stated crimes on March 7, 2013. On June 26, 2013, Appellant was sentenced

to an aggregate term of 2 to 10 years’ incarceration, which included a

mandatory minimum sentence under 18 Pa.C.S. § 6317 (Drug-free school

zones). On appeal from that judgment of sentence, this Court concluded that

Appellant’s mandatory minimum sentence was illegal under Alleyne v.

United States, 133 S.Ct. 2151 (2013). Accordingly, we vacated Appellant’s

judgment of sentence and remanded for resentencing. See Commonwealth

v. Schauer, 120 A.3d 390 (Pa. Super. 2015) (unpublished memorandum).

      On March 18, 2015, Appellant was resentenced to 18 months’ to 10

years’ incarceration. Appellant appealed, and this Court again vacated and

remanded for resentencing, this time because the trial court had failed to state

any reasons for the sentence it had imposed.         See Commonwealth v.

Schauer, No. 722 MDA 2015, unpublished memorandum at 6-7 (Pa. Super.

filed July 28, 2016).

      On August 31, 2016, Appellant was resentenced to a term of 16 months’

to 7 years’ incarceration. On appeal, this Court vacated his sentence for a

third time, after sua sponte concluding that the trial court had improperly

reduced Appellant’s maximum sentence from 10 to 7 years in an effort to

afford him credit for time served. We reasoned that the court should have

instead ordered that Appellant be given credit for time served “against the

maximum term” as mandated by 42 Pa.C.S. § 9760(1). See Commonwealth

v. Schauer, No. 161 MDA 2017, unpublished memorandum at 5-6 (Pa. Super.




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filed Aug. 22, 2017).    Accordingly, we vacated Appellant’s sentence and

remanded for another resentencing hearing.

      On November 22, 2017, the court resentenced Appellant to a term of

16 months’ to 10 years’ incarceration.      Appellant filed a timely notice of

appeal. He also timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) statement, preserving the following issues for our review:

      A. Whether the trial court erred in not calculating [Appellant’s]
         credits correctly.

      B. Whether the trial court erred in ordering and placing
         [Appellant] in prison despite [Appellant’s] already serving his
         minimum sentence.

      C. Whether the trial court erred by improperly sentencing
         [Appellant].

Appellant’s Rule 1925(b) Statement, 1/8/18, at 1 (single page). On February

7, 2018, the trial court filed an order, seemingly in an attempt to satisfy Rule

1925(a). Therein, the court stated that it was affirming its November 22,

2017 judgment of sentence, and cursorily explained that it “finds all alleged

errors lack merit,” and that the transcript from the resentencing hearing

“demonstrate[s] the reasons for [its] order and address[es] the alleged

errors.” Trial Court Order, 2/7/18, at 1 (single page).

      Attorney Crowe thereafter filed with this Court a petition to withdraw

and an Anders brief, discussing Appellant’s three, above-stated issues, and

concluding that each is frivolous.      Attorney Crowe also concludes that

Appellant has no other, non-frivolous claims that he could pursue herein.

Accordingly,


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     this Court must first pass upon counsel’s petition to withdraw
     before reviewing the merits of the underlying issues presented by
     [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
     290 (Pa. Super. 2007) (en banc).

     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.”
     Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
     2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “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) (citations and footnote omitted).




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      In this case, Attorney Crowe’s Anders brief substantially complies with

the above-stated requirements.        Namely, he includes a summary of the

relevant factual and procedural history, he refers to portions of the record that

could arguably support Appellant’s claims, and he sets forth his conclusion

that Appellant’s appeal is frivolous. He also explains his reasons for reaching

that determination, and supports his rationale with citations to the record and

pertinent legal authority.     Attorney Crowe also states in his petition to

withdraw that he has supplied Appellant with a copy of his Anders brief.

Additionally, he attached a letter directed to Appellant to his petition to

withdraw, in which he informs Appellant of the rights enumerated in Nischan.

Accordingly, counsel has complied with the technical requirements for

withdrawal.   We will now independently review the record to determine if

Appellant’s issues are frivolous, and to ascertain if there are any other, non-

frivolous issues he could pursue on appeal.

      Appellant first seeks to challenge the trial court’s calculation of his credit

for time served. Appellant preliminarily contends that the trial court erred by

increasing his maximum term of incarceration from 7 years (imposed at the

August 31, 2016 resentencing hearing) to the current maximum of 10 years.

However, as discussed supra, this Court directed the trial court to make this

change in our memorandum decision issued on August 22, 2017.                   See

Schauer, No. 161 MDA 2017, unpublished memorandum at 5-6 (concluding

that under 42 Pa.C.S. § 9760(1), the court was required to “set its intended

sentence and then appl[y] three years’ credit to the maximum term of that

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sentence[,]” rather than reducing the set maximum term by three years as

the trial court had done) (emphasis in original). Accordingly, we agree with

Attorney Crowe that the court did not err in resentencing Appellant to a

maximum term of 10 years’ imprisonment.

      We also discern no merit to Appellant’s claim that he did not receive

adequate credit for time served. At the resentencing hearing on November

22, 2017, Appellant informed the court that he had been incarcerated on this

case since June 22, 2013, and, therefore, he was entitled to credit for 4 years

and 5 months of time served. N.T. Sentencing Hearing, 11/22/17, at 3. The

court gave him credit for that exact amount of time. Id.; see also Written

Sentencing Order, 11/22/17, at 2 (unnumbered). Consequently, we agree

with Attorney Crowe that his time-credit challenge is frivolous.

      Next, Appellant avers that the trial court erred by not granting him

immediate parole at the November 22, 2017 resentencing hearing. However,

as Attorney Crowe points out, because Appellant’s maximum sentence

exceeded 2 years’ imprisonment, the trial court did not have the authority to

grant him parole. See Anders Brief at 9. Rather, the Parole Board retains

the exclusive power to grant parole in this case.         See 61 Pa.C.S. §

6132(a)(1)(i) (stating that the Parole Board “shall have exclusive power: to

parole and reparole, commit and recommit for violations of parole and to

discharge from parole all persons sentenced by any court at any time to

imprisonment in a correctional institution”); see also Commonwealth v.

Tilghman, 652 A.2d 390, 391 (Pa. Super. 1991) (“When an offender is

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sentenced to a maximum term of imprisonment of less than two years, the

common pleas court retains authority to grant and revoke parole; when the

maximum is two years or more, authority to grant or revoke parole is vested

in the Parole Board.”) (citations omitted). Accordingly, we agree with Attorney

Crowe that Appellant’s second issue is frivolous.

      In Appellant’s final issue, he seeks to assert a challenge to the court’s

sentencing discretion in imposing an aggregate term of 16 months’ to 10

years’ incarceration. However, Appellant did not raise any such claim at his

sentencing hearing, or in a post-sentence motion. Accordingly, he has waived

his   discretionary-aspects-of-sentencing   issue   for   our   review.   See

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (“Objections

to the discretionary aspects of a sentence are generally waived if they are not

raised at the sentencing hearing or in a motion to modify the sentence

imposed.”) (citation omitted).

      In sum, we agree with Attorney Crowe that the issues Appellant seeks

to raise on appeal are frivolous. Additionally, our independent review of the

record reveals no other, non-frivolous issues that he could raise herein.

Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2018




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