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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL BOMBARO,
Appellant No. 692 EDA 2014
Appeal from the Judgment of Sentence of November 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008071-2011
BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 17, 2015
Appellant, Daniel Bombaro, appeals from the judgment of sentence
entered on November 12, 2013, following the revocation of probation and
resentencing after conviction of a new crime. On appeal, counsel filed an
application to withdraw from representation pursuant to Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981) and its federal precursor, Anders v.
California, 386 U.S. 738 (1967), as well as an Anders brief on Appellant’s
behalf. Upon careful consideration, we grant counsel leave to withdraw and
affirm the revocation sentence.
We summarize the facts and procedural history of this case as follows.
On May 12, 2011, the Commonwealth charged Appellant with, inter alia,
aggravated assault, robbery, and possession of an instrument of crime (PIC)
after Appellant robbed a convenience store and lacerated the store clerk with
*Retired Senior Judge assigned to the Superior Court.
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a pair of scissors. On October 28, 2011, Appellant pled guilty to robbery and
PIC and was sentenced to 11½ to 23 months of incarceration, followed by
three years of probation. On October 29, 2013, while on probation for the
aforementioned offenses, Appellant was convicted of driving under the
influence (DUI).1 On November 12, 2013, the trial court held a hearing and
revoked Appellant’s probation based upon Appellant’s new conviction, his
failure to complete required rehabilitative treatment, and for absconding
from probationary supervision. The trial court imposed a new sentence of
two to four years of imprisonment. On November 19, 2013, Appellant filed a
motion for reconsideration of his sentence. The trial court denied relief by
order dated November 27, 2013. This timely appeal resulted.2
On appeal, counsel filed a purported Anders brief in this Court and an
accompanying application to withdraw as counsel. The Anders brief
presents two potential issues for our review:
A. Was evidence that [Appellant] was convicted of [DUI]
sufficient for revocation?
____________________________________________
1
Appellant appealed his judgment of sentence for three counts of DUI in a
related appeal at 932 EDA 2014. In that appeal, this panel affirmed
Appellant’s DUI convictions.
2
On December 12, 2013, Appellant filed a notice of appeal. On December
16, 2013, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January
6, 2014, Appellant’s counsel filed a statement of intent to file an
Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4). Accordingly, on
March 12, 2014, the trial court filed an order specifying it would not issue an
opinion.
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B. Was the probation revocation sentence illegal or
excessive?
Appellant’s Brief at 2.
“Initially, we note that we may not address the merits of the issue
raised on appeal without first reviewing the request to withdraw.”
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy of the brief
to the defendant; and 3) advise the defendant that he or she has the right
to retain private counsel or raise additional arguments that the defendant
deems worthy of the court's attention. Id. (citation omitted).
Herein, counsel's petition to withdraw from representation states that
he reviewed the record and concluded that the appeal is frivolous.
Additionally, counsel notified Appellant that he was seeking permission to
withdraw and furnished Appellant with copies of the petition to withdraw and
Anders brief, and advised Appellant of his right to retain new counsel or
proceed pro se to raise any points he believes worthy of this Court's
attention.3 Accordingly, counsel has satisfied the procedural requirements of
Anders.
____________________________________________
3
Appellant has not responded to counsel’s petition to withdraw.
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Having concluded that counsel has complied with the procedural
mandates of Anders, we now determine whether counsel's Anders brief
meets the substantive dictates. In the Anders brief that accompanies
court-appointed counsel's petition to withdraw, counsel 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.
Id. 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. (citation omitted).
Instantly, counsel provided the facts and procedural history of the
case. Based upon his review, counsel concludes that the evidence of
Appellant’s underlying DUI convictions were sufficient to support revocation
because the trial court may revoke an order of probation and impose a
sentence of total confinement if the probationer is convicted of another
crime. Here, it is uncontested that Appellant was convicted of DUI while on
probation. Appellant’s Brief at 6, 9. In addition, this Court affirmed those
convictions at 932 EDA 2014. Moreover, counsel concedes that Appellant’s
sentencing claims are wholly frivolous as the sentencing guidelines do not
apply to probation violations and the trial court was only limited by the
statutory sentencing maximums available at the time of original sentencing.
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Id. at 6-7. Here, “[A]ppellant was originally found guilty of robbery, which
carries a maximum sentence of twenty [y]ears [of] total confinement.” Id.
at 7. Counsel concludes that Appellant’s original maximum sentence of 23
months of incarceration, plus the maximum sentence of four years of
imprisonment imposed following revocation falls below the 20-year statutory
maximum for robbery and, thus, Appellant’s sentence was legal. Id. at 10.
Based upon the foregoing, we conclude that counsel has complied with the
minimum requirements of Anders. We now turn to the issues presented on
appeal.
With regard to the authority over probation, 42 Pa.C.S.A. § 9771
provides:
Modification or revocation of order of probation
(a) General rule.--The court may at any time terminate
continued supervision or lessen or increase the conditions
upon which an order of probation has been imposed.
(b) Revocation.--The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the court shall be the same as were
available at the time of initial sentencing, due consideration
being given to the time spent serving the order of
probation.
(c) Limitation on sentence of total confinement.--The court
shall not impose a sentence of total confinement upon
revocation unless it finds that:
(1) the defendant has been convicted of another
crime; or
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(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.
(d) Hearing required.--There shall be no revocation or
increase of conditions of sentence under this section except
after a hearing at which the court shall consider the record
of the sentencing proceeding together with evidence of the
conduct of the defendant while on probation. Probation may
be eliminated or the term decreased without a hearing.
42 Pa.C.S.A. § 9771. As the foregoing statutory language establishes, the
trial court retains authority over probation and may revoke probation upon a
conviction for a new crime. Here, Appellant was convicted of three new DUI
offenses. See 932 EDA 2014. Thus, the trial court did not err in revoking
probation and imposing a sentence of total confinement. Hence, we
conclude Appellant’s first issue is frivolous.
Next, we turn to Appellant’s claim that his sentence following
revocation of probation was illegal or excessive. Initially, we set forth our
scope and standard of review. In earlier cases, this Court stated that “[t]he
scope of review in an appeal following a sentence imposed after probation
revocation is limited to the validity of the revocation proceedings and the
legality of the judgment of sentence.” See, e.g., Commonwealth v.
Infante, 850 A.2d 696, 697–698 (Pa. Super. 2004). Later, however, we
recognized “that this was too narrow of a statement of our scope of review,
and that our scope of review permits us to consider challenges to the
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discretionary aspects of an appellant's sentence in an appeal following a
revocation of probation.” Commonwealth v. Williams, 69 A.3d 735, 740
(Pa. Super. 2013) (internal citations omitted); see also Cartrette, supra
(Our scope of review in an appeal from a revocation includes discretionary
sentencing challenges).
Pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, Pa.R.Crim.P. [708]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, 42 [Pa.C.S.A.]
§ 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
“The determination of whether a particular case raises a substantial
question is to be evaluated on a case-by-case basis. Generally, however, in
order to establish that there is 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. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal
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citations omitted). Further, as our Supreme Court has held, the
determination of whether a substantial question exists must be done prior to
– and be divorced from – the determination of the potential merits of an
issue. Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it
were otherwise, a challenger would “in effect obtain[] an appeal as of right
from the discretionary aspects of a sentence” – a result that would violate
statutory law. Id.
As stated previously, Appellant filed a timely notice of appeal and
preserved his discretionary sentence challenge in a post-sentence motion.
Further, Appellant has included a Rule 2119(f) statement in his brief.
Appellant’s Brief at 6-7. Appellant has not, however, raised a substantial
question that his sentence is inappropriate under the Sentencing Code or
contrary to the fundamental norms of the sentencing process.
Appellant was sentenced following the revocation of his probation;
hence, the sentencing guidelines do not apply to our analysis. 204 Pa.Code
§ 303.1(b); Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super.
2006). “[W]hen a defendant is found in violation of his probation, upon
revocation the sentencing alternatives available to the court shall be the
same as were available at the time of initial sentencing [].” Commonwealth
v. Schutzues, 54 A.3d 86, 98-99 (Pa. Super. 2012). Nevertheless, in
sentencing Appellant, the trial court was required to “consider the general
principles and standards of the Sentencing Code.” Commonwealth v.
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Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses
these general principles in the following manner:
the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs
of the defendant.
42 Pa.C.S.A. § 9721(b).
In this case, the trial court originally sentenced Appellant to 11½ to
23 months of imprisonment on Appellant’s robbery and PIC convictions.
Appellant’s original robbery conviction constituted a first-degree felony and
was subject to a maximum term of twenty years of imprisonment. See 18
Pa.C.S.A. § 1103(1) (statutory maximum term of imprisonment in the case
of a felony of the first-degree, shall be fixed by the court at not more than
twenty years). Upon revocation, the trial court sentenced Appellant to two
to four years of imprisonment. When the original sentence and new
sentence are totaled, the sum of imprisonment falls below the statutory
maximum for a robbery. Hence, the sentence is legal.
Moreover, the trial court examined the general statutory principles
pronounced in Section 9721 before imposing Appellant’s new sentence.
Appellant’s underlying convictions involved the robbery and laceration of the
proprietor of a corner store. N.T., 11/12/2013, at 10. The trial court
stated that in imposing the original sentence, it examined the statutory
sentence maximums but initially imposed a lesser sentence as “an
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opportunity and a break to get it right.” Id. at 13. While the trial court
empathized with Appellant’s ongoing substance abuse issues, it stated that
Appellant’s behavior indicated his lack of interest in rehabilitation. Id. The
trial court noted that in addition to DUI, Appellant absconded from
supervision and had tested positive for controlled substances while on
probation and concluded that a term of total confinement was apropos. Id.
Thus, the trial court considered the protection of the public, the gravity of
the offense, and the rehabilitative needs of the defendant before imposing
its sentence. As such, Appellant’s claim does not raise a substantial
question that the sentence imposed was inappropriate under the Sentencing
Code and we cannot reach the merits of Appellant’s second claim.
Further, after an independent review of the entire record, we see
nothing that might arguably support this appeal. See Commonwealth v.
Vilsaint, 893 A.2d 753, 758 n.6 (Pa. Super. 2006) (“The filing of the
Anders brief triggers the duty of our Court to conduct an independent
review of the entire record to make sure counsel has fully represented his
client's interest.”). The appeal is, therefore, wholly frivolous. Accordingly,
we affirm Appellant’s judgment of sentence and grant counsel’s petition for
leave to withdraw appearance.
Petition for leave to withdraw as counsel granted. Judgment of
sentence affirmed.
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Judge Allen joins this Memorandum. Judge Strassburger files a
Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2015
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