J-S59043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SERGIO JACOBS
Appellant No. 2542 EDA 2015
Appeal from the Judgment of Sentence July 16, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0203011-2005
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 12, 2016
Appellant, Sergio Jacobs, appeals from the judgment of sentence
following the revocation of his probation. Counsel has filed a petition to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant the
petition to withdraw and affirm the judgment of sentence.
We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 12/1/15, at 1-2. On December 16, 2014,
following a hearing, the court revoked Appellant’s probation and sentenced
him to an aggregate sentence of five to ten years’ imprisonment. On
December 24, 2014, Appellant filed a timely motion for reconsideration of
his violation-of-probation sentence. The court, on December 30, 2014,
*
Former Justice specially assigned to the Superior Court.
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vacated the sentence pending a hearing on Appellant’s post-sentence
motion.
The court held a hearing on July 16, 2015, and initially indicated the
purpose of the hearing was to address Appellant’s post-sentence motion.
N.T., 7/16/15, at 2. Appellant’s counsel, however, stated that the hearing
was for a violation but later noted the court had vacated the prior aggregate
sentence of five to ten years’ imprisonment. Id. at 2-3. The court also
acknowledged granting Appellant’s counsel’s December 24, 2014 post-
sentence motion. Id. at 11. After arguments, the court again sentenced
Appellant to an aggregate sentence of five to ten years’ imprisonment. Id.
at 14. The court, however, did not enter or docket a written sentencing
order. Appellant did not file another post-sentence motion.
Appellant, while represented by counsel, filed a pro se, timely notice of
appeal1 on August 11, 2016.2 On September 2, 2016, the trial court served
Appellant’s counsel an order directing counsel to comply with Pa.R.A.P.
1925(b). Counsel filed a motion to withdraw on September 9, 2015, which
the court denied on October 5, 2015. The court, in its October 5, 2015
1
The pro se notice of appeal is valid although counsel was representing
Appellant. Cf. Commonwealth v. Cooper, 27 A.3d 994, 1007 (Pa. 2011)
(holding defendant’s premature pro se notice of appeal valid despite being
represented by counsel and given unique procedural posture of case).
2
See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (discussing prisoner mailbox rule).
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order, again instructed counsel to comply with Rule 1925(b). Appellant’s
counsel timely filed a Rule 1925(b) statement, which challenged the
discretionary aspects of Appellant’s sentence. Appellant’s counsel filed a
petition to withdraw with this Court. Appellant did not file a pro se response
or another counseled brief.
We first examine whether Counsel complied with the requirements of
Anders and Santiago.
This Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
Santiago. The brief 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. Counsel also must provide a
copy of the Anders brief to his client. Attending the brief
must be a letter that advises the client of his right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the appellant
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deems worth of the court[’]s attention in addition to the
points raised by counsel in the Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted). If counsel complies with these requirements, “we
will make a full examination of the proceedings in the lower court and render
an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”
Id. at 882 n.7 (citation omitted).
Instantly, counsel’s petition avers he undertook “a conscientious
examination of the record” and concludes the appeal is “wholly frivolous.”
Mot. Seeking Permission to Withdraw as Counsel, 2/19/16, at 2
(unpaginated). Counsel informed Appellant of his conclusion by letter dated
February 18, 2016, which attached counsel’s motion to withdraw. The letter
informed Appellant of his right to retain new counsel or to proceed pro se
and raise any additional arguments for this Court’s consideration. Id. at Ex.
1. Counsel provided Appellant with a copy of the Anders brief, which
includes a summary of the proceedings and facts of the case, pertinent law,
and a discussion explaining why Appellant’s issues lack merit. Counsel
concluded that he could not discern any non-frivolous issues. Id. We hold
Counsel has complied with the mandates of Santiago, and we proceed to
our independent analysis. See Orellana, 86 A.3d at 879-80.
The Anders brief raises the following issue:
Whether there are any issues of arguable merit that could
be raised on direct appeal presently before this Court and
whether the appeal is wholly frivolous?
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Anders Brief at 3.3 The brief also addresses whether Appellant’s sentence
was excessive and concludes Appellant waived the issue by failing to file a
second post-sentence motion and preserve the issue in the Rule 1925(b)
statement.4 Id. at 10. Appellant has not raised any additional issues.
This Court has stated that
[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to appellate
review as of right. Prior to reaching the merits of a
discretionary sentencing issue:
[W]e conduct a four part analysis to
determine: (1) whether appellant has filed a
timely notice of appeal, see Pa.R.A.P. 902 and
903; (2) whether the issue was properly
preserved at sentencing or in a motion to
reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (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).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
3
Appellant did not file an additional counseled or pro se brief.
4
As noted above, however, Appellant preserved the issue in the Rule
1925(b) statement.
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Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some
citations and punctuation omitted). We add that a vacated sentence is a
legal nullity. Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm . . . .
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc).
Instantly, the court, in response to Appellant’s initial post-sentence
motion for reconsideration, vacated Appellant’s sentence, rendering it a legal
nullity. See Wilson, 934 A.2d at 1196. At the second sentencing hearing,
the court subsequently imposed the same sentence and Appellant timely
appealed. See Evans, 901 A.2d at 533. Appellant, however, did not file a
post-sentence motion or otherwise raise the issue at the second hearing.
See id. Appellant, therefore, has waived the issue.5 See Evans, 901 A.2d
at 533-34. Accordingly, we deny Appellant permission to appeal. Our
independent review of the record reveals no other issue of arguable merit.
5
Counsel also failed to include a Rule 2119(f) statement in the Anders brief
but that alone does not preclude review. See Commonwealth v. Bynum-
Hamilton, 135 A.3d 179, 184 (Pa. Super. 2016).
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See Santiago, 978 A.2d at 355 n.5. We conclude that the appeal is
frivolous and grant counsel’s petition for leave to withdraw.
Counsel’s petition for leave to withdraw granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2016
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Circulated 08/31/2016 10:29 AM
FILED
DEC O 1 2015
IN THE COURT OF COMMON PLEAS \ Unit
PHILADELPHIA COUNTY Criminal App~~ .s . fl.
FIRST JUDICIAL DISTRICT OF PENNSYL VANI~rst Judicial D1stnctot p
CRIMINAL TRIAL DIVISION
COMMON\VEALTH OF I>ENNSYLVANIA CP-51-CR-0203011-2005
v.
2542 EDA 2015
Sergio JACOBS
MEANS,J. November 30, 2015
_CP-51-CR-0203-011-2005 Comm. v Sergio, Jacobs
OPINION Opinion
FACTUAL AND PROCEDURAL HISTORY
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7376258671
On September 16, 2014, while on this Court's probation for Robbery and related offenses,
Defendant, Sergio Jacobs (aka Jacobs Sergio), pled guilty to Aggravated Assault and Possession
of a Firearm. At a Violation of Probation ("YOP") hearing on December 16, 2014, this Court found
Defendant to be in violation of his probation. As a result of this violation, this Court sentenced
Defendant to two and one half (2 ¥i) to five (5) years incarceration for the charges of Possessing
an Instrument of a Crime and Terroristic Threats, to be served consecutively to one another and to
any other sentence the Defendant is serving.
Defendant subsequently filed a Motion for Reconsideration of Sentence. Following a
hearing on July 16, 2015, this Court denied Defendant's motion. On August 11, 2015, Defendant
filed a Notice of Appeal to the Superior Court of Pennsylvania. On September 2, 2005, this Court
ordered Defendant, through counsel, to file a Concise Statement of Matters Complained of on
Appeal. On September 9, 2015, counsel filed a Motion to Withdraw Representation, which was
1
denied by this Court for lack of jurisdiction on October 5, 2015, and which time counsel was re-
ordered to file a Concise Statement of Matters Complained of on Appeal. On October 23, 2015,
Defendant, through counsel, filed a Concise Statement of Matters Complained of on Appeal,
alleging that this Court erred in failing to consider the rehabilitative needs of Defendant when
imposing its sentence.
LEGAL ISSUES
Because this case involves a Violation of Probation, the only grounds for appeal are that:
(i) the Court lacked jurisdiction to impose a sentence, or (ii) that the sentence imposed was illegal
or excessive. Commonwealth v. Infante, 585 Pa. 408, 419, 888 A.2d 783, 790 (Pa. 2005) (holding
that '