Com. v. Schier, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SCOTT SCHIER :
:
Appellant : No. 482 EDA 2020
Appeal from the Judgment of Sentence Entered January 3, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002008-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SCOTT SCHIER :
:
Appellant : No. 483 EDA 2020
Appeal from the Judgment of Sentence Entered January 3, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003088-2018
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: Filed: April 22, 2021
These consolidated appeals, by Brian Scott Schier (Appellant), return to
this panel following our December 4, 2020, remand for the preparation of a
supplemental opinion by the Chester County Court of Common Pleas. These
appeals lie from the judgments of sentence entered, at two dockets, following
the January 3, 2020, revocation of Appellant’s parole. Appellant’s counsel,
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Deborah Brown, Esquire (Counsel), has filed an application to withdraw from
representation and brief pursuant to Anders v. California, 386 U.S. 738(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
Counsel presents one issue: whether the trial court imposed an illegal
sentence by not awarding credit for time on parole prior to the revocation.
We conclude this claim is a challenge to the discretionary aspects of
sentencing, and was not preserved for appellate review. We grant Counsel’s
petition and affirm the judgment of sentence.
I. Procedural History
On February 6, 2019, Appellant appeared before the Honorable David
Bortner and entered a negotiated guilty plea to a third offense, “highest tier,”
of driving under the influence1 (DUI) at trial docket CP-15-CR-0002008-2018
(DUI/2008 Case). N.T., 2/6/19, at 4. This offense arose from Appellant’s
operating a vehicle on November 21, 2007, while under the influence. Id. at
3. The “highest tier” categorization carried a mandatory minimum sentence
of one year. Id. at 4. The parties proposed a sentence of one to two years’
imprisonment, which they agreed would be “a state sentence,” under which
Appellant “would still have to go before the state parole board.”2 Id. at 5.
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1 75 Pa.C.S. § 3802(d)(2).
2 See 61 Pa.C.S. § 6132(a)(1)(i) (Pennsylvania Board of Probation and Parole
shall have exclusive power to, inter alia, parole, reparole, commit, and
recommit for violations of parole), (2)(ii) (“[T]he powers and duties conferred
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However, Appellant requested — and the Commonwealth did not object to —
the court’s agreement that Appellant could serve the sentence at Chester
County prison, so that he could stay near his mother. Id. at 5, 13. The
parties would then ask “the warden” for permission for Appellant to serve his
sentence at the county, rather than state, prison. Id. at 6. The trial court
agreed, imposed one to two years’ imprisonment, stated Appellant was RRRI-
eligible, and set an RRRI-minimum sentence of nine months.3 Appellant was
in fact permitted to serve this sentence at the Chester County prison. See
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by this section shall not extend to persons sentenced for a maximum period
of less than two years . . . .”); 42 Pa.C.S. § 9775 (“A sentencing court shall
grant parole from a term of imprisonment for less than a maximum period of
two years, and . . . parole shall be without supervision by the board.”).
3See 61 Pa.C.S. §§ 4501-4512 (recidivism risk reduction incentive). This
Court has explained:
[O]ffenders eligible for the RRRI program are sentenced to the
minimum and maximum sentences under 42 Pa.C.S. § 9752, and
then receive the RRRI minimum sentence, which constitutes
three-fourths of a minimum sentence of three years or less . . . .
See 61 Pa.C.S. § 4505(c). After the defendant serves the RRRI
minimum sentence, the Pennsylvania Board of Probation and
Parole assesses the defendant’s progress in RRRI programs, along
with other factors, and determines whether the defendant shall be
paroled. 61 Pa.C.S. § 4506. A trial court is required, by statute,
to determine if a defendant is eligible for an RRRI minimum
sentence. See 42 Pa.C.S. § 9756 (b.1).
Commonwealth v. Pardo, 35 A.3d 1222, 1224 n.3 (Pa. Super. 2011).
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Appellant’s Petition for Good Time, DUI/2008 Case, 4/12/19, at 1
(unpaginated).4
On that same day, Appellant also pleaded guilty to criminal use of a
communication facility5 (CUCF) at trial docket CP-15-CR-0003088-2018
(CUCF/3088 Case). This charge arose from Appellant’s use of a telephone, on
June 30, 2018, to arrange a drug transaction. N.T., 2/6/19, at 2. The trial
court sentenced him to 221 days to 23 months and one day’s incarceration,
to run concurrently with the sentence at Docket 2008. The court paroled him
on this sentence that same day.6 Appellant did not file a post-sentence motion
at either docket.
Twenty-two days later, on February 28, 2019, the trial court sua sponte
amended Appellant’s CUCF sentence.7 It appears the sole modification to the
sentence was the additional condition: “Sentence may be served at CCP at
Warden’s discretion.” Amended Sentencing Sheet, CUCF/3088 Case, 2/28/19.
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4 We did not include cover page in assigning page numbers to Appellant’s
petition.
5 18 Pa.C.S. § 7512(a).
6This panel’s December 4, 2020, memorandum mistakenly stated Appellant
was paroled on his DUI sentence on February 6, 2019. Instead, he was
paroled on the CUCF sentence. Parole Order, CUCF/3088 Case, 2/6/19; Trial
Court Docket, CUCF/3088 Case, 4/2/20, at 9.
7See 42 Pa.C.S. § 5505 (generally, a court “may modify or rescind any order
within 30 days after its entry . . . if no appeal from such order has been taken
or allowed”).
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On April 12, 2019, Appellant, although represented by counsel, filed a
pro se “Petition for Good Time” in the DUI/2008 case. The motion averred
that although the trial court set a RRRI-minimum sentence of nine months,
the Chester County Prison did not offer a RRRI program, but did “offer Good
Time,” a reentry program. See Appellant’s Petition for Good Time at 2; N.T.,
5/28/19, at 8. Appellant thus requested the court grant him “Good Time” so
that he may be released.8 Id. The trial docket also includes an entry for a
counseled May 14, 2019, “Motion for Parole,” but the motion itself is not
included in the certified record.
On May 28, 2019 — more than three and a half months after sentencing
on February 2, 2019 — the trial court conducted a hearing on Appellant’s
“Petition for Good Time” in the DUI/2008 case. The trial court observed
Appellant would be unlikely to fulfill RRRI requirements, “because those
programs aren’t available at a county prison,” and, furthermore, the court
could not “award good time” because it did not “have parole authority.” See
N.T., 5/28/19, at 2-3. Appellant’s counsel responded that to resolve this
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8 The corresponding docket entry for this motion indicates the pro se petition
was served on the trial court, Appellant’s counsel, and the Commonwealth.
See Pa.R.Crim.P. 576(A)(4) (where represented defendant submits pro se
filing, the clerk of courts shall, inter alia, accept it for filing, make a docket
entry reflecting the date of receipt; copy of filing shall be forwarded to the
defendant’s attorney and Commonwealth within 10 days).
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predicament,9 the parties agreed “to treat [Appellant’s DUI sentence] as an
illegal sentence” based on a premise the DUI conviction should have been
treated as “a high tier, third offense DUI,” which carries a mandatory
minimum sentence of 90 days, rather than a “highest tier third offense DUI,”
which carried the minimum one-year sentence.10 Id. at 4 (emphases added).
Appellant could thus “be resentenced to a county term of imprisonment such
that the [trial c]ourt would retain jurisdiction to parole him,” and Appellant
would be eligible for the reentry program. Id. The trial court agreed, and
thus vacated the sentence on the ground it was illegal and imposed the new
sentence recommended by the parties — 11 months and 29 days to 23 months
and 29 days. Id. at 6, 8. The new minimum and maximum terms were each
one day less than the original terms, and no minimum RRRI sentence was set.
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9 While the trial court stated that neither it nor the parties were fully aware,
at the initial February 6, 2019, sentencing hearing, that the court “would lose
parole authority” in imposing a one to two-year state sentence. N.T., 5/25/19,
at 2. As stated above, however, defense counsel plainly stated at the February
6th hearing, “[The sentence] would still be a state sentence and [Appellant]
would still have to go before the state parole board.” N.T., 2/6/19, at
5 (emphasis added).
10 In this Court’s initial review, the certified record included only the trial
court’s May 28, 2019, amended sentencing sheet, which stated the original
sentence was illegal, without indicating why. No transcript of any hearing was
transmitted. One of our remand directives was therefore for the court to
provide any explanation why the initial February 26th sentence was illegal.
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The court also immediately paroled Appellant.11 Amended Sentencing Sheet,
DUI/2008 Case, 5/28/19.
On December 17, 2019, Appellant was detained for a parole violation.
See N.T., 1/3/20, at 4; Anders Brief at 6. The trial court conducted a
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11 In our prior memorandum, this panel called attention to whether the trial
court had jurisdiction on May 28, 2019, to modify Appellant’s sentence. See
42 Pa.C.S. § 5505; Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa. Super.
2011) (“[A] trial court has the inherent, common-law authority to correct
‘clear clerical errors’ in its orders[,] even after the expiration of the 30 day
time limitation set forth in 42 Pa.C.S.A. § 5505[.]”). See also
Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014)
(“‘[P]atent or obvious mistakes’ in an order may be modified beyond the
thirty-day modification period. An alleged error must qualify as a clear clerical
error or a patent and obvious mistake in order to be amenable to correction.”).
Neither party averred, nor would we conclude, that the original
sentencing order misrepresented the intended sentence, or that the May 28,
2019, modification was a correction of a “clerical error.” See Borrin, 12 A.3d
at 471. Instead, the parties’ intent was to modify the terms of the agreed-
upon sentence such that the trial court, rather than the Board of Probation
and Parole, would have parole authority. See N.T., 5/28/19, at 4. See also
Supplemental Op., 1/20/21, at 6 (“We find no clerical errors (or any patent
and obvious mistake) at any time in any of these proceedings. The sentences
were accurately recorded.”). Furthermore, the original sentence was not
illegal. See Supplemental Op., 1/20/21, at 3 (“Every part of the original
sentence was supported by statutory authority and, therefore, . . . was not
illegal.”).
Nevertheless, the trial court points out, “although technically not illegal,
. . . the RRRI minimum was almost wholly illusory,” as “it would have been
virtually impossible for [Appellant, in county prison,] to satisfy the RRRI
requirements and to be released at the RRRI minimum.” Supplemental Op.,
1/20/21, at 4. Additionally, neither party has challenged the May 28, 2019,
resentencing. Id. The sentence modification was made at Appellant’s
request, and the Commonwealth agreed. In light of the foregoing, we decline
to vacate the May 28th resentencing for lack of the trial court’s jurisdiction.
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Gagnon I hearing on December 23rd, and a Gagnon II hearing on January
3, 2020.12 Anders Brief at 6. Present counsel, Attorney Brown, entered her
appearance on January 3, 2020.13 At the Gagnon II hearing, the Honorable
Robert Shenkin revoked parole at both dockets. At the DUI/2008 Case, the
court recommitted Appellant to the balance of his maximum term — 12
months and 27 days’ incarceration. Violation Sentencing Sheet & Order,
1/3/20. At the CUCF/3088 Case, the court recommitted Appellant to the
balance of the maximum term — 15 months and 19 days’ incarceration. N.T.,
1/3/20, at 4. At both sentences, the court awarded credit for time served in
prison from December 17, 2019 to January 3, 2020. Pertinent to this appeal,
however, the court did not award credit for the time Appellant was on parole
prior to his December 17th arrest.
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12 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). This Court has explained:
When a parolee or probationer is detained pending a revocation
hearing, due process requires a determination at a pre-revocation
hearing, a Gagnon I hearing, that probable cause exists to
believe that a violation has been committed. Where a finding of
probable cause is made, a second, more comprehensive hearing,
a Gagnon II hearing, is required before a final revocation decision
can be made.
Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000)
(citations omitted).
13 While the text of the entry of appearance is dated January 3, 2020, it is
time stamped as “filed,” and was entered on the docket, on January 14th.
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On February 3, 2020, Appellant filed notices of appeal at each docket.14
In response to the trial court’s order to file a Pa.R.A.P. 1925(b) statement of
errors complained on appeal, Counsel filed a timely statement of intent to file
an Anders brief. The trial court issued an opinion, reasoning:
No issues have been preserved for appeal. No concise
statement of errors complained of on appeal has been filed.[FN]
We are satisfied that the sentences imposed on [Appellant] are
appropriate for his parole violation and other circumstances.
______________________
[FN] In lieu of such statement, pursuant to Pa.R.A.P. No.
1925(c)(4), counsel filed a notice of intent to file an
Anders/Santiago brief. If this case should be remanded
pursuant to the aforesaid rule, we will file a supplemental opinion.
Memorandum Op., 3/25/20.
II. December 4, 2020, Remand
The Anders brief submitted to this Court raises one issue: “Were the
sentences imposed at Appellant’s violation of probation and parole hearing
illegal by extending the end date of supervision?” Anders Brief at 4. In
support, Appellant would argue “his sentence was illegal as the court did not
credit him for time spent while on parole without violation.” Id. at 12.
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14As noted in our prior memorandum, because the trial court issued separated
sentencing orders at each docket, Commonwealth v. Walker, 185 A.3d 969(Pa. 2018), is not implicated. See id. at 977 (requiring separate notices of
appeal “when a single order resolves issues arising on more than one lower
court docket”). The two appeals were consolidated by this Court on April 2,
2020.
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This Court observed the certified record did not include any notes of
testimony, and the record raised additional issues concerning the legality of
Appellant’s sentence. We thus concluded we were unable to review the merits
of the issue presented in the Anders brief. Thus, we remanded for the trial
court to file a supplemental opinion addressing: (1) the issue presented in
the Anders brief — whether the trial court failed to credit Appellant for time
spent while on parole prior to revocation, and whether this issue was
preserved for appeal; (2) why the court found, on May 28, 2019, the original
February 6th sentence was illegal;15 and (3) whether the court had authority,
on May 28th, to amend the sentence more than 30 days after the original
sentencing.16 This Court also directed the court to supplement the record with
any available notes of testimony.
The trial court has filed a supplemental opinion and transmitted the
transcripts to the: February 6, 2019, sentencing hearing; May 28, 2019,
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15 As stated above, this panel is now able to glean, from the newly-transmitted
May 28, 2019, transcript, the reasons why the trial court found the original
February 6th sentence was illegal. The trial court also aptly addressed this
issue on remand in its supplemental opinion.
16 See 42 Pa.C.S. § 5505 (generally, a court “may modify or rescind any order
within 30 days after its entry . . . if no appeal from such order has been taken
or allowed”); Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa. Super. 2011)
(“[A] trial court has the inherent, common-law authority to correct ‘clear
clerical errors’ in its orders[,] even after the expiration of the 30 day time
limitation set forth in 42 Pa.C.S.A. § 5505[.]”).
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resentencing hearing; and January 3, 2020, Gagnon II hearing. We may
now consider Counsel’s Anders petition.
III. Anders Petition
This Court has stated:
Before we address the merits of [an] appeal, we must
determine whether counsel has complied with the procedures
provided in Anders and its progeny.
* * *
. . . Counsel who wishes to withdraw must file a petition . . . stating
that he or she has made a conscientious examination of the record
and determined that the appeal would be frivolous. Also, counsel
must provide a copy of the Anders brief to the appellant and
inform him of his right to proceed pro se or retain different
counsel.
The substance of the Anders 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. [Santiago, 978 A.2d at
361.] 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.” [T]he U.S. Supreme Court
[has] noted that the Anders brief is designed, inter alia, to assist
the court in making “the critical determination whether the appeal
is indeed so frivolous that counsel should be permitted to
withdraw.”
* * *
[O]nce the court ha[s] determined that counsel satisfied the
above requirements, “the court . . . proceeds, after a full
examination of all the proceedings, to decide whether the case is
wholly frivolous. If it so finds it may grant counsel’s request to
withdraw and dismiss the appeal[.]”
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Commonwealth v. Yorgey, 188 A.3d 1190, 1195-96 (Pa. Super. 2018) (en
banc) (some citations omitted).
Here, Counsel filed an application for leave to withdraw, stating she “has
made a conscientious examination of the record . . . and has determined that
this appeal is meritless and wholly frivolous.” Counsel’s Application for Leave
to Withdraw as Attorney of Record, 5/14/20, at 1. See Yorgey, 188 A.3d at
1195. The petition further states Counsel provided a copy of the Anders brief
to Appellant, “notified him in detail [of C]ounsel’s legal opinion regarding the
lack of merit and frivolity in pursuing this appeal,” and advised Appellant he
may proceed pro se or with a private attorney. Counsel’s Application for Leave
to Withdraw as Attorney of Record, 5/14/20, at 1-2. Meanwhile, Counsel’s
Anders brief: (1) summarizes the factual and procedural history, with citation
to the record, Anders Brief at 5-9; (2) opines that after an examination of
the record, no potentially meritorious claims arise, id. at 10; (3) addresses,
with discussion of relevant authority, Appellant’s claim that his “sentence was
illegal [because] the court did not credit him for time spent . . . on parole
without violation,” id. at 11-12; and (4) concludes “it would be disingenuous
to argue there is any evidence the [trial court] abused its discretion in
[imposing] Appellant’s sentence.” Id. at 12.
Appellant has not filed any pro se or counseled response to Counsel’s
Anders petition. We are satisfied that Counsel has complied with the
requirements of Anders and Santiago. See Yorgey, 188 A.3d at 1195-96.
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Thus, we proceed to an independent review of the record to determine
whether this appeal is wholly frivolous. See id. at 1196.
VI. Sentencing Credit Issue
As stated above, the Anders brief presents one issue:
Were the sentences imposed at Appellant’s violation of probation
and parole hearing illegal by extending the end date of
supervision?
Anders Brief at 4.
Preliminarily, we consider whether this issue is preserved for appellate
review. The Anders brief frames Appellant’s question presented as a
challenge to the legality of the sentence, which we note cannot be waived and
may be considered on appeal despite the failure to preserve the issue in a
post-sentence motion or Pa.R.A.P. 2119(f) statement. See Commonwealth
v. Taylor, 104 A.3d 479, 489 (Pa. 2014) (“[A] challenge to the legality of
sentence cannot be waived[.]”); Anders Brief at 4. However, Counsel’s legal
analysis addresses whether the trial court abused its discretion. Anders Brief
at 12 (“Appellant argues his sentence was illegal as the court did not credit
him for time spent while on parole without violation. However, it is up to the
court’s discretion whether to credit such time[.]”).
In its initial opinion, the trial court suggested — while acknowledging
Counsel filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders
brief — this issue was waived because “[n]o concise statement of errors
complained on appeal has been filed.[ ]” Memorandum Op., 3/25/20. See
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Commonwealth v. Parrish, 224 A.3d 682, 693 (Pa. 2002) (appellant must
file court-ordered Rule 1925(b) statement, “enumerating all issues they wish
to have the appellate court consider, or those issues will be deemed waived
for appellate review”). We disagree Appellant’s issue is waived on this basis.
Pennsylvania Rule of Appellate Procedure 1925(c)(4) provides:
In a criminal case, counsel may file of record and serve on
the judge a statement of intent to file an Anders/Santiago brief
in lieu of filing a Statement. If, upon review of the
Anders/Santiago brief, the appellate court believes that
there are arguably meritorious issues for review, those
issues will not be waived; instead, the appellate court may
remand for the filing of a Statement, a supplemental opinion
pursuant to Pa.R.A.P. 1925(a), or both. Upon remand, the trial
court may, but is not required to, replace appellant’s counsel.
Pa.R.A.P. 1925(c)(4) (emphasis added). The rule specifically provides that an
attorney’s filing of a Rule 1925(c)(4) statement, in lieu of a Rule 1925(b)
statement, will not result in waiver of a meritorious issue. See id.Nevertheless, we agree with the trial court’s reasoning in its more recent
opinion — that Appellant’s credit-claim is waived for failure to raise it at
sentencing. See Supplemental Op., 1/20/21, at 2. This Court has stated:
The power of the court after a finding of violation of parole in
cases not under the control of the State Board of Parole is “to
recommit to jail . . . .” There is no authority for giving a new
sentence with a minimum and maximum. After recommitting the
parolee, the court retains the power to grant reparole. The grant
to parole or reparole is subject to the court’s discretion as to what
“may seem just and proper.” In such cases the defendant,
when found in violation of parole, is not entitled as of right
to credit for time spent on parole without violation.
Commonwealth v. Michenfelder, [408 A.2d 860 (Pa. Super.
1979)]; Commonwealth v. Broden, [392 A.2d 858 (Pa. Super.
1978)]. Given this setting, and the limited alternatives open to a
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court upon finding of parole violation, we do not see the court’s
order on reconsideration of the parole violation as being
excessive. The court found the violations, though technical, to be
serious[.]
Commonwealth v. Fair, 497 A.2d 643, 645 (Pa. Super. 1985) (emphasis
added and some citations omitted).
In Michenfelder, the defendant claimed his sentence “was excessive
because he received no credit for time spent on parole in good standing.”
Michenfelder, 408 A.2d at 861. This Court first observed that because
Michenfelder’s maximum sentence was 23 months’ imprisonment, he was not
subject to the Board of Probation and Parole. Id. We then reasoned:
We [have] held that a parolee not subject to the jurisdiction of the
Board of Parole is not entitled to credit for street time [pursuant
to 61 P.S. § 331.21a(b), repealed by 2009, Aug. 11, P.L. 147, No.
33, § 11(b), effective Oct. 13, 2009. Commonwealth v.
Broden, 392 A.2d 858 (Pa. Super. 1978).]
Where no statutorily mandated sentence exists, Pennsylvania
trial judges are vested with broad discretion in sentencing. This
Court will not reverse a judgment of sentence unless an abuse of
discretion is shown. Thus, in order to constitute an abuse of
discretion, a sentence must either exceed the statutory limits or
be manifestly excessive.
In the instant case, [Michenfelder] is not statutorily entitled
to credit for time spent on parole in good standing because he is
not within the jurisdiction of the Board of Parole. Broden, supra.
We must, therefore, look to whether there has been an
abuse of discretion by the trial judge. [W]e find no abuse of
discretion in this case. The reinstated 23 month sentence did not
exceed the statutory maximum nor was it manifestly excessive in
view of the trial judge’s conclusion that [Michenfelder’s] two
arrests while on parole indicated that he was not rehabilitated.
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Michenfelder, 408 A.2d at 861-62 (emphasis added and some citations and
footnote omitted).
Michenfelder treated this issue — a claim that a trial court erred in not
awarding sentencing credit for time spent on parole before revocation — as a
challenge to the discretionary aspects of sentencing. See Michenfelder, 408
A.2d at 861-62. We emphasize:
The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal. “An appellant must satisfy a four-part test
to invoke this Court’s jurisdiction when challenging the
discretionary aspects of a sentence[:]”
(1) the appellant preserved the issue either by raising it
at the time of sentencing or in a post[-]sentence motion;
(2) the appellant filed a timely notice of appeal; (3) the
appellant set forth a concise statement of reasons relied
upon for the allowance of his appeal pursuant to
Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation
omitted).
Here, Appellant did not request, at the May 28, 2019, resentencing
hearing, credit for time spent on parole, and he did not file any post-sentence
motion. Accordingly, this issue is waived from our review and we may not
consider its merits. See Conte, 198 A.3d at 1173. Thus, for Anders
purposes, the issue is meritless and wholly frivolous. See Yorgey, 188 A.3d
at 1195-96.
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For the foregoing reasons, we grant Counsel’s application to withdraw
from representation, and we affirm the judgment of sentence.
Counsel’s application to withdraw from representation granted.
Judgment of sentence affirmed.
President Judge Panella joins the memorandum.
Judge McLaughlin files a concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/21
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