J-S06028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
QUINTON BRIGHT
Appellant No. 484 EDA 2014
Appeal from the Judgment of Sentence December 17, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006516-2009
CP-51-CR-0012649-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 02, 2015
Quinton Bright appeals from his judgment of sentence imposed in the
Court of Common Pleas of Philadelphia County on December 17, 2013, after
the court found him to be in violation of his probation. Counsel has
petitioned this Court to withdraw his representation of Bright pursuant to
Anders, McClendon and Santiago.1 Upon review, we affirm Bright’s
judgment of sentence and grant counsel’s petition to withdraw.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
J-S06028-15
In order to withdraw pursuant to Anders and McClendon, counsel
must: 1) petition the Court for leave to withdraw, certifying that after a
thorough review of the record, counsel has concluded the issues to be raised
are wholly frivolous; 2) file a brief referring to anything in the record that
might arguably support an appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points that the appellant deems worthy of
review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.
2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the
Pennsylvania Supreme Court held that, in order to withdraw under Anders,
counsel must also state his reasons for concluding his client’s appeal is
frivolous.
Instantly, counsel’s petition states that he has made an examination of
the record and concluded the appeal is wholly frivolous. Counsel indicates
that he supplied Bright with a copy of the brief and a letter explaining his
right to proceed pro se,2 or with newly-retained counsel, and to raise any
other issues he believes might have merit. Counsel has also submitted a
brief, setting out in neutral form three issues of arguable merit and,
pursuant to the dictates of Santiago, explains why he believes the issues to
____________________________________________
2
Bright has not submitted any additional or supplemental filings to this
Court.
-2-
J-S06028-15
be frivolous. Thus, counsel has substantially complied with the requirements
for withdrawal.
Counsel having satisfied the above requirements, this Court must
conduct its own review of the proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Bright raises the following issues for our review:
1. Did the lower court err in finding that [Bright] violated his
parole and probation, thereby justifying the imposition of a
new sentence of incarceration?
2. Was [Bright’s] sentence legal?
3. Did the lower court err in not acting upon [Bright’s] post-
sentence motions?
Anders Brief, at 3.
Bright first alleges that the trial court erred in finding that he violated
his probation. This claim is meritless. On November 5, 2009, Bright pled
guilty to multiple counts relating to the manufacture and delivery of
controlled substances. The Honorable Rayford Means sentenced him to
concurrent terms of 6 to 23 months’ incarceration,3 followed by one year of
probation. While under Judge Means’ supervision, on June 14, 2013, Bright
was found guilty of persons not to possess firearms, theft by unlawful taking
and firearms not to be carried without a license, charges stemming from an
____________________________________________
3
Bright was granted immediate parole on both cases.
-3-
J-S06028-15
incident that occurred on August 26, 2010. The Honorable Linda Carpenter
sentenced him to an aggregate term of 10 to 24 years’ incarceration for
these charges.
Conviction of a new crime is a sufficient basis for a court to revoke a
sentence of probation. Commonwealth v. Kalichak, 943 A.2d 285, 289
(Pa. Super. 2008). Thus, by virtue of his conviction on the new charges
before Judge Carpenter, Bright was in direct violation of his probation.
Additionally, Bright committed technical violations of his probation involving
drugs. See N.T. Violation Hearing, 12/17/13, at 3-4. Accordingly, the trial
court did not err in finding Bright to be in violation of his probation.
Bright next claims that his revocation sentence was illegal. This claim
is without merit. Pursuant to 42 Pa.C.S.A. § 9771(b), when a revocation
occurs, the court has all the sentencing alternatives that were available at
the time of initial sentencing. Commonwealth v. Mazzetti, 44 A.3d 58, 65
(Pa. 2012). Upon resentencing, a term of total confinement may be
imposed if one of the following conditions exists: (1) the defendant has
been convicted of another crime; (2) the conduct of the defendant indicates
that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court. 42
Pa.C.S.A. § 9771(c).
Here, Bright was convicted of additional crimes and, thus, was eligible
for a term of total confinement under section 9771(c). Additionally, Bright
pled guilty to one charge of possession with intent to deliver (“PWID”) –
-4-
J-S06028-15
cocaine, and one charge of PWID – marijuana and cocaine. The statutory
maximum penalty for PWID – cocaine is ten years’ imprisonment. 35 P.S. §
780-113(f)(1.1). Judge Means resentenced him to 4 to 8 years’
incarceration on each count. Thus, Bright’s revocation sentence was well
within the statutory limit. As such, this claim is meritless.
Finally, Bright claims that the trial court erred by not acting upon his
post-sentence motions, in which he attempted to challenge the discretionary
aspects of his sentence. Counsel e-filed post-sentence motions in each of
Bright’s cases. However, incorrect documents – post-sentence motions from
Bright’s case before Judge Carpenter – were erroneously submitted to the
court, and the court did not consider them. Accordingly, Bright’s
discretionary-aspect-of-sentencing claim was not preserved on appeal.
Because he did not properly preserve this claim, it is waived and, therefore,
frivolous. See Commonwealth v. Kalichak, 943 A.2d 285, 292 (Pa.
Super. 2008) (where issue has been waived, pursuing matter on direct
appeal is frivolous in context of Anders).
Even if Bright’s sentencing claim had not been waived, it would have
garnered him no relief. In order to obtain review of a claim implicating the
discretionary aspects of sentencing, an appellant must raise a substantial
question as to whether the trial judge, in imposing sentence, violated a
specific provision of the Sentencing Code or contravened a “fundamental
norm” of the sentencing process. Commonwealth v. Coulverson, 34 A.3d
135, 142 (Pa. Super. 2011). Here, Bright does not allege a violation of a
-5-
J-S06028-15
specific provision of the Sentencing Code, nor does he claim the court
contravened a fundamental norm of the sentencing process. Rather, the
sole basis for Bright’s claim is that he is remorseful for his crimes and seeks
the court’s mercy. This does not raise a substantial question. 4 See id.
Accordingly, Bright’s claim is meritless.
Judgment of sentence affirmed; petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2015
____________________________________________
4
Even if we were to interpret Bright’s claim as alleging the sentencing
court’s failure to consider mitigating circumstances, he would still be entitled
to no relief. Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super.
2006) (“A claim that a sentencing court failed to consider certain mitigating
factors does not raise a substantial question that the sentence is
inappropriate.”).
-6-