Com. v. Kester, J.

J-S07004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH WILLIAM KESTER,
Appellant No. 1144 MDA 2014
Appeal from the Judgment of Sentence Entered June 12, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s):
CP-35-CR-0002937-2009
CP-35-CR-0002938-2009
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 10, 2015
Appellant, Joseph William Kester, appeals from the judgment of
sentence of an aggregate term of 1 to 2 years’ incarceration. On appeal,
Appellant challenges the discretionary aspects of his sentence. Additionally,
his counsel, Donna M. DeVita, Esq., seeks permission to withdraw her
representation of Appellant pursuant to Anders v. California, 386 U.S. 738(1967), as elucidated by our Supreme Court in Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), and amended in Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we agree with counsel
that Appellant’s claims are frivolous. Accordingly, we affirm his judgment of
sentence and grant counsel’s petition to withdraw.
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On July 26, 2010, Appellant entered a guilty plea to use or possession
of drug paraphernalia and providing false identification to law enforcement.
He was sentenced on October 26, 2010, to two consecutive probation terms
of one year. These sentences were to be served consecutively to another
sentence Appellant was then serving in an unrelated case. These terms of
probation were revoked following a hearing on June 12, 2014, and Appellant
was sentenced to two consecutive terms of 6 to 12 months’ incarceration.
Appellant filed a timely notice of appeal, as well as a timely concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On October 20, 2014, Attorney DeVita filed with this Court a petition to
withdraw as counsel pursuant to Anders/Santiago. “When faced with a
purported Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw.”
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting
Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)).
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
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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, 880 (Pa. Super. 2014). After
confirming that counsel satisfied these requirements, this Court must then
conduct its own review of the record and independently determine whether
the appeal is in fact wholly frivolous. Commonwealth v. Daniels, 999
A.2d 590, 594 (Pa. Super. 2010).
Instantly, Attorney DeVita’s Anders brief provides a detailed summary
of the procedural history and facts of Appellant’s case with citations to the
record. It also includes a discussion of appellate issues that the record could
arguably support; namely, a challenge to the court’s authority to impose the
sentence, and a challenge to the court’s sentencing discretion. Attorney
DeVita sets forth her conclusion that an appeal on Appellant’s behalf would
be wholly frivolous and explains the reasons underlying that determination.
She also supports her rationale with citations to the record, as well as
relevant case law. Attorney DeVita confirms that she sent a copy of her
Anders brief to Appellant, and also has provided a copy of a letter she sent
to Appellant advising him of his right to retain private counsel, proceed pro
se, or raise any additional points he deems worthy of this Court’s attention.
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Therefore, we conclude that Attorney DeVita has complied with the
requirements of Anders/Santiago. Accordingly, we will now independently
review the merit of Appellant’s assertions, and also determine whether there
are any other issues he could arguably present on appeal. See Daniels,
999 A.2d at 594.
First, Appellant claims that the court erred when it revoked his terms
of probation before they had commenced. This claim is without merit. As
this Court has noted,
[a] term of probation may and should be construed for
revocation purposes as including the term beginning at the time
probation is granted. Otherwise, having been granted probation
a defendant could commit criminal acts with impunity-as far as
revocation of probation is concerned-until he commenced actual
service of the probationary period.
Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980)
(internal quotation marks and citations omitted). Accordingly, as a court
may revoke a sentence of probation before a defendant has begun serving
that sentence, we conclude that it was not error for the court to revoke
Appellant’s sentences of probation in the instant case.
Moreover, Appellant claims that the court abused its discretion when it
imposed an aggregate sentence of 1 to 2 years’ incarceration, as this
sentence was excessive based on Appellant’s technical violations of his
probation.
A claim that the sentence imposed by the trial court was
manifestly excessive is a challenge to the discretionary aspects
of the sentence. The right to appeal the discretionary aspects of
a sentence is not absolute. Two requirements must be met
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before a challenge to the discretionary aspects of a sentence will
be heard on the merits. First, the appellant must set forth in his
brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
his sentence. Second, he must show that there is a substantial
question that the sentence imposed is not appropriate under the
Sentencing Code. The determination of whether a particular
issue raises a substantial question is to be evaluated on a case-
by-case basis. In order to establish a substantial question, the
appellant must show actions by the sentencing court inconsistent
with the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process.
Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003).
Here, the trial court sentenced Appellant to two consecutive terms of 6
to 12 months’ incarceration. We note that twelve months’ incarceration is
the statutory maximum sentence that may be imposed for each offense to
which Appellant pled guilty, and that both sentences fall within the
aggravated range of the sentencing guidelines. However, we also recognize
that, “[T]he sentencing guidelines do not apply to sentences imposed as a
result of … probation revocations.” Commonwealth v. Coolbaugh, 770
A.2d 788, 792 (Pa. Super. 2001) (internal citations omitted). Rather,
“[u]pon revocation the sentencing alternatives available to the court shall be
the same as were available at the time of initial sentencing.” 42 Pa.C.S. §
9771.
Appellant claims that the sentencing court abused its discretion in
sentencing him to such a lengthy period of incarceration, given the fact that
this was the first violation of his probation, and the violations were technical.
However, our review of Appellant’s post-sentence motion, and the applicable
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notes of testimony, indicate that this issue was never raised before the
sentencing court. As such, it is waived. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
Moreover, even if Appellant’s claim had been properly preserved, he
would not be entitled to relief. Appellant stipulated that he had violated his
probation; specifically, he had possessed a knife, used morphine and
marijuana, and left a court-ordered rehabilitation facility. N.T, 6/29/14, at
2. The court also noted that Appellant had failed to follow through with
treatment for substance abuse, failed to maintain employment, and
submitted several urine samples that tested positive for controlled
substances. Id. at 5-6. The court stated these reasons on the record, and
then added, “It’s not a failure to rehabilitate, it’s a failure to even make an
attempt to rehabilitate.” Id. at 6. Accordingly, we would conclude
Appellant’s sentence was not an abuse of discretion.
In sum, we agree with Attorney DeVita that Appellant’s sentencing
issues are frivolous. Additionally, our review of the record reveals no other
non-frivolous claims that Appellant could arguably assert. Thus, we affirm
his judgment of sentence and grant counsel leave to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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