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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KRISTINA M. GARRISON, :
:
Appellant : No. 1476 MDA 2015
Appeal from the Judgment of Sentence August 5, 2015,
in the Court of Common Pleas of Franklin County,
Criminal Division, at No: CP-28-CR-0001621-2013
BEFORE: MUNDY, DUBOW, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 31, 2016
Kristina M. Garrison (Appellant) appeals from her August 5, 2015,
judgment of sentence, which the trial court imposed after revoking
Appellant’s probation. In addition, Appellant’s counsel has filed a petition to
withdraw and a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
affirm the judgment of sentence and grant the petition to withdraw.
In September 2013, Appellant pled nolo contendere in Franklin County
to receiving stolen property and was sentenced to 24 months’ probation.
Since the imposition of her sentence, Appellant has violated the terms of her
probation on four separate occasions. The most recent violation resulted in
Appellant’s re-sentencing which is the subject of the instant appeal.
*Retired Senior Judge assigned to the Superior Court.
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On August 5, 2015, Appellant was resentenced after she waived her
right to a Gagnon II1 hearing and admitted she was in violation of her
probation. N.T., 8/5/2015, at 3. At the re-sentencing, the trial court found
Appellant violated her probation by failing to complete the special conditions
of her probation. Id. at 14. The court revoked Appellant’s Franklin County
probation and sentenced her to serve 12 to 24 months’ incarceration in a
state correctional institution.2 On August 24, 2015, Appellant timely filed a
notice of appeal.3
The following principles guide our review of this matter:
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
the record, counsel finds the appeal to be wholly frivolous.
Counsel must also file an Anders brief setting forth issues that
might arguably support the appeal along with any other issues
necessary for the effective appellate presentation thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
The court determined that Appellant is eligible for the Recidivism Risk
Reduction Incentive (RRRI) program. See 61 Pa.C.S. §§ 4501–4512.
3
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
Accordingly, we hold that 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.
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.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s application to withdraw and
Anders brief, we conclude that counsel has complied substantially with the
above requirements.4 Once “counsel has met these 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.’” Commonwealth v. Flowers, 113
4
Appellant has not responded to counsel’s application to withdraw.
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A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n.
5).
According to counsel, Appellant wishes to challenge the discretionary
aspects of her sentence: “Did the trial court abuse its discretion when it
sentenced [Appellant] to a sentence of 12 months to 24 months in a [s]tate
[c]orrectional [i]nstitution?”5 Appellant’s Brief at 7.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Instantly, Appellant has satisfied the first requirement by timely filing
a notice of appeal. To satisfy the second requirement regarding
preservation, we point out that “[o]bjections to the discretionary aspects of
5
“[I]t is within our scope of review to consider challenges to the
discretionary aspects of an appellant’s sentence in an appeal following a
revocation of probation.” Commonwealth v. Ferguson, 893 A.2d 735, 737
(Pa. Super. 2006).
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a sentence are generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed.” Commonwealth v.
Griffin, 65 A.3d 932, 935 (Pa. Super. 2013).
Appellant did not file a motion to modify the sentence imposed.
Additionally, Appellant did not raise this issue at her sentencing hearing.
See N.T., 8/5/2015. Therefore, Appellant has not preserved this issue, and
it is waived. An issue that is waived is frivolous. See Commonwealth v.
Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding that when an issue
has been waived, “pursuing th[e] matter on direct appeal is frivolous”).
Consequently, we agree with counsel that this appeal is wholly
frivolous. Moreover, we have conducted “a full examination of the
proceedings” and conclude that “the appeal is in fact wholly frivolous.”
Flowers, 113 A.3d at 1248. Thus, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2016
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