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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DYSHAN T. AURSBY, : No. 40 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 21, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002354-2010
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 03, 2015
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Philadelphia County following appellant’s violation of
probation hearing. Appointed counsel, Jennifer A. Santiago, Esq., has filed a
petition to withdraw, alleging that the appeal is wholly frivolous,
accompanied by an Anders brief.1 We grant counsel’s withdrawal petition
and affirm.
The record indicates appellant pled guilty to the charge of possession
with intent to deliver on April 19, 2010, and was sentenced to 12 months of
intermediate punishment followed by two years of probation. While on
probation, appellant was charged and later convicted of attempted murder,
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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aggravated assault, robbery, and conspiracy. Appellant was sentenced to an
aggregate term of incarceration of 12½ to 25 years. As a result of these
convictions, appellant was found in direct violation of his probation. On
November 21, 2013, at a violation of probation hearing, appellant was
sentenced to 4 to 8 years of confinement to be served consecutive to his
12½ to 25-year sentence. Appellant failed to file a post-sentence motion.
However, on December 20, 2013, appellant’s counsel appeared before the
trial court seeking reconsideration of appellant’s 4 to 8-year sentence. The
trial court denied reconsideration. (Notes of testimony, 12/20/13 at 3.)
Appellant filed an appeal to this court. The trial court ordered
appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. After receiving an extension of time, instead of filing a
court-ordered Pa.R.A.P. 1925(b) statement, appellant’s counsel filed a
statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4) on
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June 18, 2014.2 As a consequence of Rule 1925(c)(4) statement of intent,
the trial court declined to issue a Pa.R.A.P. 1925(a) opinion.
On September 29, 2014, appellant’s counsel filed in this court a
motion to withdraw as counsel and an Anders brief, wherein counsel states
there are no non-frivolous issues preserved for our review. “When
presented with an Anders brief, this Court may not review the merits of the
underlying issues without first examining counsel’s petition to withdraw.”
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and counsel must:
(1) provide a summary of the procedural
history and facts, with citations to the
record;
2
Rule 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] brief in lieu of filing a Statement. If, upon
review of the [Anders] 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
Rule 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).
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(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.
Id., quoting Santiago, 978 A.2d at 361.
Our review of Attorney Santiago’s application to withdraw, supporting
documentation, and Anders brief reveals that she has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant, advised him of his right to retain new counsel,
proceed pro se, or raise any additional points that he deems worthy of this
court’s attention, and attached to the Anders petition a copy of the letter
sent to appellant as required under Commonwealth v. Millisock, 873 A.2d
748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (“While the
Supreme Court in Santiago set forth the new requirements for an Anders
brief, which are quoted above, the holding did not abrogate the notice
requirements set forth in Millisock that remain binding legal precedent.”).
As Attorney Santiago has complied with all of the requirements set forth
above, we conclude that counsel has satisfied the procedural requirements
of Anders.
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Once counsel has met her obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,
we now turn to the merits of appellant’s appeal.
In her Anders brief, counsel points out that there is no dispute that
appellant was in direct violation of his sentence. (See notes of testimony,
11/23/13 at 4.) The law is clear that once probation or parole has been
revoked, a sentence of total confinement may be imposed if any of the
following conditions exist: the defendant has been convicted of another
crime; the conduct of the defendant indicates that it is likely that he will
commit another crime if he is not imprisoned; or such a sentence is essential
to vindicate the authority of the court. 42 Pa.C.S.A. § 9771(c);
Commonwealth v. McAfee, 849 A.2d 270 (Pa.Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004). Here, a sentence of total confinement
was appropriate since appellant had been convicted of two other crimes.
Additionally, we note appellant was sentenced to 4 to 8 years’ incarceration.
The maximum sentence appellant could have received was 10 years;
consequently, appellant’s sentence was within the statutory limits.
The appeal is wholly frivolous, and our independent review of the
entire record has not disclosed any other potentially non-frivolous issues.
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Consequently, we grant counsel’s petition to withdraw, and we affirm the
judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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