Com. v. Degarmo, M.

J-S10020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS GEORGE DEGARMO :
:
Appellant : No. 225 MDA 2021
Appeal from the Judgment of Sentence Entered January 19, 2021
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000563-2009
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: JULY 15, 2022
Marcus George Degarmo appeals the judgment of sentence entered
after he was found in violation of probation (“VOP”). Degarmo’s counsel filed
an Anders brief and Petition to Withdraw as Counsel.1 We affirm the judgment
of sentence and grant counsel’s Petition.
Degarmo pled guilty to aggravated assault in August 2009. The trial
court sentenced him to five to 10 years’ incarceration followed by a
consecutive term of 10 years of reporting probation.
The court revoked Degarmo’s probation in January 2021, after Degarmo
committed new criminal offenses that led to him being found guilty of several
new counts including two counts each of criminal solicitation – rape of a child,
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* Retired Senior Judge assigned to the Superior Court.
1Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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criminal solicitation – indecent assault of a child, and criminal solicitation –
child pornography; three counts of unlawful contact with a minor; four counts
of criminal use of a communication facility; and one count each of corruption
of minors, endangering the welfare of children, and criminal attempt – child
pornography. The court considered the Probation Department’s
recommendation for sentencing, Degarmo’s behavior, and the protection of
the victims. See Rule 1925(a) Opinion (“1925(a) Op.), filed 6/9/21, at 5. The
trial court sentenced Degarmo to one to three years’ incarceration to run
consecutive to his sentence of 31 to 62 years’ incarceration for his new
convictions. Degarmo did not contest the VOP sentence at the sentencing
hearing and did not file a post-sentence motion. This timely appeal followed.
The court ordered Degarmo to file a Rule 1925(b) statement of matters
complained of on appeal and counsel complied, raising the following issues:
1. [Degarmo] argues that the revocation and resentencing
on the captioned docket was done in error because the
conviction for a new criminal charge under docket 661-
2019, which was cited as the reason for the revocation,
was based on insufficient evidence.
2. [Degarmo] also argues that in light of the above, the
[c]ourt abused its discretion in resentencing him to a one
(1) to three (3) year sentence of state incarceration.
Pa.R.A.P. 1925(b) Statement, filed 3/15/21.
Appellate counsel, who is different from counsel who filed the Rule
1925(b) statement, filed in this Court a Petition to Withdraw as Counsel and
an Anders brief. Before addressing any substantive claims, we must first
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determine whether counsel has complied with the procedural requirements
to withdraw as counsel. Commonwealth v. Cox, 231 A.3d 1011, 1014
(Pa.Super. 2020).
An Anders brief is filed when counsel believes that the appeal is wholly
frivolous and wishes to withdraw from representation of the appellant. To
withdraw, counsel must: “(1) petition the court for leave to withdraw, stating
that after a conscientious examination of the record and interviewing the
defendant, counsel has determined the appeal would be frivolous;” (2) file a
brief referring to any issues in the record of arguable merit; and (3) furnish
a copy of the brief to defendant and advise him of his right to retain new
counsel or to raise any additional points that he deems worthy of the court’s
attention. Id. at 1015; see also Commonwealth v. Yorgey, 188 A.3d
1190, 1195-96 (Pa.Super. 2018) (en banc) (reviewing requirements for
withdrawal under Anders).
The Anders brief should include the following: (1) a summary of the
procedural history and facts, with citations to the record; (2) reference to
anything in the record that counsel believes arguably supports the appeal;
(3) counsel’s conclusion that the appeal is frivolous; and (4) a statement of
counsel’s reasons for concluding that the appeal is frivolous. See 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.” Id.
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Counsel has met all the requirements. Counsel filed a petition to
withdraw, stating that she made a conscientious examination of the record
and determined that the appeal is frivolous. See Petition to Withdraw as
Counsel, filed 1/6/22, at ¶ 9. Counsel also filed a brief referring to the two
issues in the record that Degarmo believed to have arguable merit. Counsel’s
brief provides a procedural and factual history of the case, with citations to
the record, discusses the issues arguably supporting the appeal, and explains
why counsel believes those issues are frivolous. See Anders Br. at 8-16.
Counsel also furnished a copy of the brief to Degarmo along with a letter
advising him of his right to retain new counsel or raise any additional points
that he believes the court should review.
Degarmo has not filed a response, either pro se or by private counsel,
to the Anders brief. We therefore address the issues identified by counsel.
Counsel identifies two substantive issues:
I. Whether there was sufficient evidence under a new criminal
conviction to revoke and resentence [Degarmo] for a probation
violation[?]
II. Whether the sentence imposed upon [Degarmo] at the time he
was revoked and resentenced for a probation violation was
excessive and an abuse of the court’s discretion[?]
Anders Br. at 7.2
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2Counsel’s brief includes a third issue: “Whether a Petition for Permission to
Withdraw as Counsel should be granted where counsel has investigated the
possible grounds for appeal and finds the appeal frivolous[?]” Anders Br. at
7. This issue follows our consideration of whether the appeal is frivolous.
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Counsel maintains that Degarmo alleges that there was insufficient
evidence to revoke his probation, specifically the new convictions.
Our standard of review for the revocation of probation is an abuse of
discretion. See Commonwealth v. Giliam, 233 A.3d 863, 866-67 (Pa.Super.
2020). Our scope of review is limited to reviewing whether the reason for the
revocation proceeding is valid, the legality of the sentence, and the
discretionary aspects of sentencing. Commonwealth v. Cartrette, 83 A.3d
1030, 1033-34 (Pa.Super. 2013) (en banc). A trial court has jurisdiction to
revoke probation “only ‘upon proof of the violation of specified conditions of
the probation.’” Commonwealth v. Foster, 214 A.3d 1240, 1250 (Pa. 2019)
(quoting 42 Pa.C.S.A. § 9771(b)) (emphasis omitted). If the court revokes
probation, it may only resentence the defendant to serve a term of
incarceration if “(1) the defendant was convicted of a new crime; (2) the
defendant’s conduct makes it likely that he or she will commit a new crime if
not incarcerated; or (3) incarceration ‘is essential to vindicate the authority of
the court.’” Id. (quoting 42 Pa.C.S.A. § 9771(c)).
Here, a condition of Degarmo’s sentence was that he refrain from
receiving any new convictions. While on probation, Degarmo was found guilty
of multiple crimes. The trial court found that he violated his probation because
of the convictions. The trial court had sufficient evidence of the violation and
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did not err in determining that Degarmo had violated his probation and
imposing a term of incarceration for the violation.3
Regarding the second issue, counsel states that Degarmo believes that
the court imposed a severe and excessive sentence. This claim challenges the
discretionary aspects of the sentence. There is no automatic right of appellate
review of such a challenge. Cartrette, 83 A.3d at 1042. Before reviewing such
a claim, we must first determine whether the appellant has: (1) filed a timely
notice of appeal; (2) properly preserved the issue at sentencing or in a post-
sentence motion; (3) filed a brief that includes a Pa.R.A.P. 2119(f) statement;
and (4) has demonstrated a substantial question that the sentence is not
appropriate under the Sentencing Code. See 42 Pa.C.S.A. § 9781(b);
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013).
Here these requirements are not met. While Degarmo filed a timely
notice of appeal, he did not preserve his challenges to his sentence at the
sentencing hearing or in a post-sentence motion. Degarmo has therefore
waived his challenge to his sentence. See Commonwealth v. Dempster,
187 A.3d 266, 272 (Pa.Super. 2018) (en banc).
Our independent review of the record reveals no non-frivolous claims
that could be raised on appeal. We affirm the judgment of sentence and grant
counsel’s Petition to Withdraw as Counsel.
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3 The trial court judge that initially accepted Degarmo’s guilty plea in 2009 is
the same judge that presided over his jury trial that resulted in the multiple
convictions.
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Judgment of sentence affirmed. Petition to Withdraw as Counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2022
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