J-S93040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEKSEY N. MAKSIMOV,
Appellant No. 1501 EDA 2016
Appeal from the Judgment of Sentence August 26, 2013
in the Court of Common Pleas of Bucks County
Criminal Division at Nos.: CP-09-CR-0000620-2013
CP-09-CR-0000623-2013
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 06, 2017
Appellant, Aleksey N. Maksimov, appeals nunc pro tunc from the
judgment of sentence imposed on August 26, 2013, following the revocation
of his probation. This case returns to us after remand for a hearing on
Appellant’s PCRA. On appeal, Appellant challenges the effectiveness of trial
counsel and the discretionary aspects of his sentence. Appellate counsel has
petitioned this Court for permission to withdraw. We affirm the judgment of
sentence and grant counsel’s petition to withdraw.
We take the factual and procedural history in this matter from our
review of the certified record and the trial court’s June 30, 2016 opinion. On
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*
Retired Senior Judge assigned to the Superior Court.
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August 31, 2012, Appellant was charged by the Northampton Township
Police with stalking (F-3), intimidation of a witness (F-3), and related
charges at Case No. 620/2013.1 The charges stemmed from Appellant’s
stalking of his prior girlfriend Katie Britton. On August 31, 2012, Ms. Britton
filed a police report against Appellant concerning his actions. In it, she
explained that she received in excess of fifty phone calls and numerous text
messages each day from Appellant. She stated that on August 13, 2012,
Appellant arrived at her apartment, uninvited, and rang her doorbell for
approximately two hours. When Ms. Britton left her house later that day,
Appellant jumped in front of her in an attempt to stop her. He then arrived
at her father’s house that afternoon while she was taking her dog for a walk,
and held her dog and her arms preventing her from entering her father’s
house. (See N.T. Guilty Plea Hearing, 5/29/13, at 21-22). After Appellant
learned of the charges, he repeatedly sent her text messages asking her to
drop the charges or he would get payback. (See id. at 22-23).
On September 8, 2012, Appellant was charged with escape (F-3) and
terroristic threats (M-1) at Case No. 623/2013.2 These charges stemmed
from Appellant’s attempted escape after police arrested him on the felony
stalking charges. While in the transport van as police were transporting him
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1
18 Pa.C.S.A. §§ 2709.1(a)(1) and 4952(a)(2), respectively.
2
18 Pa.C.S.A. §§ 5121 and 2706(a)(3), respectively.
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to headquarters, Appellant stepped through his arms so that his handcuffs
were in front of him. When detectives opened the door of the van, he broke
free and fled. Appellant was apprehended within five to ten minutes, and,
while being transported back to police headquarters, threatened Detective
Stark, the officer who apprehended him. (See id. at 23-24).
On May 29, 2013, Appellant pleaded guilty in both cases pursuant to a
negotiated guilty plea. At Case No. 620/2013, the trial court sentenced him
on Count 1, stalking, to not less than one day less than one year nor more
than one day less than two years; and on Count 5, intimidation of a witness,
to a concurrent seven years of probation. At Case No. 623/2013, the court
sentenced Appellant on Count 1, escape, to seven years of probation,
consecutive to Case No. 620/2013; no further penalty was imposed on
Count 3, terroristic threats. In both cases, the court ordered Appellant to
have no contact with either Ms. Britton, or Detective Stark. (See id. at 38-
42).
About an hour after conclusion of the guilty plea hearing and
sentencing, Ms. Britton received a phone call from the Bucks County
Correctional Facility, which she did not answer. (See N.T. Violation of
Probation Hearing, 8/26/13, at 12). She received a second call, later that
evening, from a number that she did not recognize. When she answered the
call, Appellant was on the other end. (See id. at 14-15). Appellant placed
the call using another inmate’s telephone identification number. (See id. at
41-42). Appellant sent several letters to Ms. Britton’s home while in prison,
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one of which was addressed to her dog, all of which were received by Ms.
Britton herself. (See id. at 18-21). Appellant also sent several phone calls
and text messages to her, both from his own phone, and using other people
as intermediaries. (See id. at 22-25).
On August 26, 2013, the trial court held a violation hearing and found
Appellant in violation of both sentences. The court paroled Appellant on
Count 1 of Case No. 620/2013, and closed his parole on that count. The
court revoked the sentences of probation at Count 5 of Case No. 620/2013
and Count 1 of Case No. 623/2013. It resentenced him on Count 5 of Case
No. 620/2013 to not less than three nor more than seven years of
incarceration; and on Count 1 of Case No. 623/2013, to a consecutive seven
years of probation. (See id. at 99-100). The court stated that “[t]his is the
most consistent act of stalking and control that [it has] ever had[,]” and that
even in Bucks County prison, he found ways around the court’s order for no
contact. (Id. at 95; see id. at 96).
Appellant filed a motion to reconsider, which the court denied on
November 15, 2013. Appellant did not file an appeal from the sentence
imposed August 26, 2013, thus his judgment of sentence became final on
September 25, 2013. On February 18, 2014, Appellant filed a pro se motion
for credit for time served, which the trial court denied on March 21, 2014.
Appellant filed an appeal pro se and the court appointed counsel. On June
23, 2015, this Court vacated the trial court’s March 21, 2014 order, and
remanded this matter, directing that the court treat Appellant’s February 18,
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2014 motion as a PCRA petition. (See Commonwealth v. Maksimov, 122
A.3d 1141 (Pa. Super. 2015) (unpublished memorandum)).
The PCRA court held an evidentiary hearing on December 3, 2015,
and, on February 9, 2016, it reinstated Appellant’s direct appeal rights from
the sentence imposed at the August 26, 2013 violation of probation hearing
nunc pro tunc. The trial court vacated its order, at Appellant’s request, on
February 17, 2016.3
On March 18, 2016, counsel, on Appellant’s behalf, filed a second
motion to amend Appellant’s PCRA petition, seeking reinstatement of
Appellant’s direct appeal rights. The court granted Appellant’s PCRA petition
on May 6, 2016, reinstating his direct appeal rights. (See PCRA Court
Order, 5/06/16). Appellant timely filed notice of his direct appeal.
On May 24, 2016, counsel filed notice that he would be filing an
Anders brief and petition to withdraw as counsel. See Pa.R.A.P.
1925(c)(4). In his notice, counsel advised the court of the various issues
that Appellant wanted to raise. (See Statement Pursuant to Pa.R.A.P.
1925(c)(4), 5/24/16, at 1-2). The trial court filed a 1925(a) opinion on June
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3
On February 12, 2016, Appellant pro se filed a motion to represent himself
in PCRA relief. On February 17, 2016, Appellant filed a motion to vacate the
February 9, 2016 order granting post-conviction relief. During a hearing
held on March 7, 2016, pursuant to Commonwealth v. Grazier 713 A.2d
81 (Pa. 1998), the court vacated its February 9, 2016 order, and Appellant
agreed to keep his counsel.
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30, 2016. See Pa.R.A.P. 1925(a). On August 18, 2016, counsel filed a
petition to withdraw with this Court and an Anders4 brief. On September 9,
2016, Appellant pro se filed a response to the Anders brief and petition to
withdraw.
Before we address the merits of Appellant’s claims, we must first
determine whether counsel’s petition and brief meet the procedural
requirements for seeking leave to withdraw. See Commonwealth v.
Zeigler, 112 A.3d 656, 659 (Pa. Super. 2015).
When requesting leave to withdraw,
[c]ounsel 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 [pro se] that the
defendant deems worthy of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted).5
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4
See Anders v. California, 386 U.S. 738 (1967).
5
Additionally, our Supreme Court has set forth the following requirements
for the brief accompanying 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. See Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009). Counsel should articulate the relevant facts of record, controlling
case law, and any statutes on point that have led to the conclusion that the
appeal is frivolous. See id.
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In this case, counsel filed a petition to withdraw from representation,
along with the Anders brief, concluding that he made a thorough
examination of the record and the appeal is wholly frivolous. (See Anders
Brief, at 17). Counsel provided a copy of his Anders brief to Appellant and
advised him of his rights to raise any additional points in this appeal by
proceeding pro se or with private counsel. See Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). In the Anders brief,
counsel provides a summary of the facts and procedural history of the case
with citations to the record, refers to evidence of record that might arguably
support the issue raised on appeal, provides citations to relevant case law,
and states his conclusion that the appeal is wholly frivolous and the reasons
for the conclusion. Accordingly, we conclude that counsel has substantially
complied with the requirements of Anders, Santiago, and Millisock.
Having concluded that counsel’s petition and brief comply with the
technical Anders requirements, we must “conduct [our] own review of the
trial court’s proceedings and render an independent judgment as to whether
the appeal is, in fact, wholly frivolous.” Commonwealth v. Lilley, 978
A.2d 995, 998 (Pa. Super. 2009) (citation omitted). We conclude that it is.
Counsel identifies two issues for our review. (See Anders Brief, at 4).
However, because his first question concerns whether his motion to
withdraw should be granted, we have omitted any discussion of this issue.
Thus, the question remaining before us on appeal raised by counsel is as
follows: “Was the Appellant[’s] sentence for his probation violation
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excessive?” (Anders Brief, at 4). In his pro se reply to the Anders brief,
Appellant attempts to raise numerous claims of ineffectiveness, (See
Response to Anders Brief, 9/19/16, at unnumbered pages 2-3), which we
decline to review on this direct appeal.6
The issue counsel raised in the Anders brief challenges the
discretionary aspects of Appellant’s sentence. (See Anders Brief, at 25-
26).7
Such a challenge to the discretionary aspects of a sentence is
not appealable as of right. Rather, Appellant must petition for
allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
2004).
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6
Absent certain extraordinary circumstances, “claims of ineffectiveness
assistance of counsel are to be deferred to PCRA review; . . . such claims
should not be reviewed upon direct appeal.” Commonwealth v. Holmes,
79 A.3d 562, 576 (Pa. 2013). We agree with the trial court’s conclusion that
no extraordinary circumstances exist necessitating immediate consideration
of claims of trial counsel’s ineffectiveness. (See Trial Ct. Op., at 7-8).
Furthermore, Appellant has not knowingly and expressly waived his
entitlement to seek PCRA review of his conviction. (See Response to
Anders Brief, at unnumbered page 3); Holmes, supra at 563-64. Rather,
he expressly states his desire to “preserve all of his PCRA issues[.]” (See
Response to Anders Brief, at unnumbered page 4). Therefore, we decline to
review Appellant’s claims of ineffectiveness during this, his direct appeal.
7
We note that the Commonwealth has raised the issue of waiver of
counsel’s issue for failure to include it in a concise statement of errors
complained of on appeal. (See Commonwealth’s Brief, at 15). However,
counsel for Appellant did not file a statement of errors pursuant to Pa.R.A.P.
1925(b). Rather he filed a statement of intent to file an Anders brief,
pursuant to Pa.R.A.P. 1925(c)(4), which provides that if “there are arguably
meritorious issues for review, those issues will not be waived[.]” Pa.R.A.P.
1925(c)(4). Thus, we decline to find this issue waived.
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Before we reach the merits of this [issue], 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. The third and fourth of these
requirements arise because . . . [Appellant] must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.
2013)[, appeal denied, 77 A.3d 1258 (Pa. 2013)] (citations
omitted); see also Commonwealth v. Kalichak, 943 A.2d
285, 289 (Pa. Super. 2008) (“[W]hen a court revokes probation
and imposes a new sentence, a criminal defendant needs to
preserve challenges to the discretionary aspects of that new
sentence either by objecting during the revocation sentencing or
by filing a post-sentence motion.”) [(citation omitted)].
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015).
Here, counsel for Appellant has, in effect, satisfied the first three
requirements by filing a motion to reconsider the revocation sentence, filing
a timely appeal, and including a statement of the reasons relied upon for
allowance of appeal in the Anders brief. (See Anders Brief, at 24-25); see
also Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015)
“Where counsel files an Anders brief, this Court has reviewed the matter
even absent a separate Pa.R.A.P. 2119(f) statement.”) (citations omitted).
Counsel argues the sentence for this, Appellant’s first violation, was too
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harsh and “[t]here is nothing in the record that shows that the Appellant’s or
society’s needs are met by his serving the sentence [the court] imposed.”
(See Anders Brief at 25).
Our Court has held that “[g]enerally, a bald excessiveness claim does
not raise a substantial question.” Zeigler, supra at 662 (citation omitted).
Counsel for Appellant does not argue that the sentence was not appropriate
under the sentencing code. (See Anders Brief, at 24-25); see also
Zeigler, supra at 661. He simply claims that given the standards set forth
in the sentencing code, the sentence was too harsh. (See Anders Brief, at
25). Therefore, Appellant has not set forth a substantial question for our
review.
Moreover, even if Appellant did raise a substantial question, his
challenge to the discretionary aspects of his sentence would not merit relief.
“Revocation of a probation sentence is a matter committed to the sound
discretion of the trial court and that court’s decision will not be disturbed on
appeal in the absence of an error of law or an abuse of discretion.” Colon,
supra at 1041 (citation omitted). “Upon revoking probation, a sentencing
court may choose from any of the sentencing options that existed at the
time of the original sentencing, including incarceration. . . . [T]he trial court
is limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence.” Id. at 1044 (citing 42
Pa.C.S.A. § 9771(b)) (case citation and quotation marks omitted).
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Here, the record reveals that, after hearing testimony, the court found
Appellant in violation of his probation. (See N.T. Violation of Probation
Hearing, at 48). In fact, the court emphasized that this was “the most
consistent act of stalking and control” that it had ever seen. (Id. at 95).
The court sentenced Appellant to an aggregate sentence of three to seven
years of imprisonment followed by seven years of probation. (See id. at 99-
100). This was below the maximum sentence that the court could have
imposed at Appellant’s initial sentencing. (See N.T. Guilty Plea Hearing, at
10-13); see Colon, supra at 1044.
Upon review, we discern no error of law or abuse of discretion. The
record amply supports that the trial court considered the appropriate factors
in determining that revocation and a sentence of incarceration was
warranted, and sentenced Appellant below the maximum that could have
been originally imposed. Thus, we conclude the issue raised in the Anders
brief is frivolous.8 After independent review, we determine that there are no
other non-frivolous bases for appeal, and this appeal is “wholly frivolous.”
Lilley, supra at 998.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
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8
We reviewed Appellant’s pro se response to the Anders brief, and on
independent review, find no other non-frivolous issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2017
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