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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
DESSORAE WYANT, :
:
Appellant : No. 948 WDA 2017
Appeal from the Judgment of Sentence June 6, 2017
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0001779-2015
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 23, 2018
Dessorae Wyant (Appellant) appeals from her June 6, 2017 judgment
of sentence of an aggregate term of 27 to 59½ months’ incarceration
following the revocation of her parole and probation. Counsel has filed a
petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738 (1967). We affirm Appellant’s judgment of sentence and grant
counsel’s petition to withdraw.
On December 20, 2016, Appellant pled guilty to theft by deception and
bad checks. Appellant waived the preparation of a pre-sentence
investigation report (PSI) and proceeded to sentencing that same day. N.T.,
12/20/2016, at 12-13. Despite Appellant’s status as a repeat offender, the
trial court indicated it was willing to accept Appellant into the Erie County
Treatment Court Program. Id. at 15-16. As such, the court sentenced
*Retired Senior Judge assigned to the Superior Court.
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Appellant to nine to 23 months’ incarceration for bad checks, and ordered
she be paroled to Gaundenzia’s House of Healing on December 27, 2016.
Id. at 17-18. The trial court also imposed a consecutive term of five years’
probation for theft by deception, plus 50 hours of community service. Id. at
18.
A parole/probation revocation hearing was held on June 6, 2017. At
that hearing, the Commonwealth averred Appellant violated several
conditions of her contract including, inter alia, failing to report to her
parole/probation officer, testing positive for a controlled substance, and
leaving the House of Healing without permission. N.T., 6/6/2017, at 4-6.
Appellant admitted to all of these violations. Id. The Commonwealth also
informed the court that following Appellant’s departure from the House of
Healing, she boarded a Greyhound bus to Pittsburgh and was eventually
arrested on new charges. Id. at 9-10.
Based on the foregoing, the revocation court revoked Appellant’s
parole and consecutive term of probation. Id. at 11. The court re-imposed
Appellant’s sentence of nine to 23 months’ incarceration for bad checks.1 The
court then revoked Appellant’s period of probation she received for theft by
deception and sentenced her to a consecutive term of 18 to 36 months’
imprisonment. Id. When imposing this sentence, the revocation court
noted that Appellant’s subsequent arrest and new charges indicated that she
1
The court awarded Appellant credit for time served.
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was not “amenable to community supervision.” Id. However, the court did
authorize Appellant to receive available treatment in prison. Id.
Appellant filed a post-sentence motion wherein she asked for
reconsideration and modification of her sentence. Specifically, Appellant
requested the revocation court “reconsider its decision to order that the
sentences be served consecutively and instead order concurrent sentences.”
Post-Sentence Motion, 6/13/2016.
The revocation court denied Appellant’s motion without a hearing.
This timely-filed appeal follows. In this Court, counsel has filed both an
Anders brief and a petition to withdraw as counsel. Accordingly, the
following principles guide our review.
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
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-
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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). Further, our Supreme Court has specified the following
requirements for the Anders brief:
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 349, 361 (Pa. 2009).
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above.2 Thus, we now have the
responsibility “‘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 A.3d 1246, 1249 (Pa. Super.
2015) (quoting Santiago, 978 A.2d at 354 n. 5).
In her Anders brief, counsel states the following question for this
Court’s review: “Did the revocation court commit an abuse of discretion
when it imposed a consecutive, rather than [a] concurrent[] sentence of
2
Appellant has not filed a response to counsel’s petition to withdraw.
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total confinement for the theft conviction?” Anders Brief at 6 (suggested
answer and unnecessary capitalization omitted). Thus, the sole issue
identified by counsel concerns her sentence. We consider this claim mindful
of the following.
It is within this Court’s 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).
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on
appeal. An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Simmons, 56 A.3d 1280, 1283–84 (Pa. Super. 2012)
(citation omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(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
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appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant filed a notice of appeal after she filed a post-sentence
motion. Furthermore, the Anders brief contains a statement pursuant to
Pa.R.A.P. 2119(f). Thus, we now turn to consider whether Appellant has
presented with a substantial question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation and quotation marks omitted).
In her 2119(f) statement counsel questions whether “the revocation
court imposed an excessive sentence when it ordered the sentences served
consecutively, rather than concurrently.” Anders Brief at 13. Such a claim
does not raise a substantial question for our review.
Although Pennsylvania’s system stands for individualized
sentencing, the court is not required to impose the “minimum
possible” confinement. Under 42 Pa.C.S.[] § 9721, the court
has discretion to impose sentences consecutively or concurrently
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and, ordinarily, a challenge to this exercise of discretion does not
raise a substantial question.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation
omitted). Moreover, there is no articulable argument to support any
contention that the imposition of consecutive sentences in this case was
unduly harsh or that it resulted in a manifestly excessive sentence. “[A]
bald claim of excessiveness due to the consecutive nature of a sentence will
not raise a substantial question.” 3 Commonwealth v. Diehl, 140 A.3d 34,
45, (Pa. Super. 2016).
Even if Appellant raised a substantial question allowing this Court to
entertain Appellant’s claim, she would still not be entitled to relief.
Notwithstanding Appellant’s repeat offender status, the trial court allowed
Appellant to participate in the county’s treatment program. Despite
Appellant’s almost immediate parole into a treatment center, Appellant
violated several conditions, warranting the revocation of her sentences. The
revocation court explained that based upon the new charges Appellant
received, which were “similar in nature to what [Appellant was] under
supervision for[,]” the court found Appellant was not “amenable to
community supervision.” N.T., 6/6/2017, at 11. Furthermore, the court
noted that in revoking Appellant’s probation, it would impose a sentence in
3
Furthermore, we note that Appellant’s motion for a modification of
sentence merely requested the revocation court to reconsider its decision to
impose consecutive sentences. Appellant did not set forth any allegation
that the court abused its discretion by imposing consecutive sentences.
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the standard range “even though the guidelines do [not] apply[.]” Id. The
court’s decision to order Appellant’s sentences be served consecutively as
opposed to concurrently was well within its discretion. See
Commonwealth v. Mastromarino, 2 A.3d 581, 586–87 (Pa. Super. 2010)
(“Long standing precedent of this Court recognizes that 42 Pa.C.S.[ § 9721]
affords the sentencing court discretion to impose its sentence concurrently
or consecutively to other sentences being imposed at the same time or to
sentences already imposed.”).
Accordingly, we agree with counsel that the issue raised regarding
Appellant’s sentence is frivolous. Moreover, we have conducted “a full
examination of the proceedings” and conclude that “the appeal is in fact
wholly frivolous.”4 Flowers, 113 A.3d at 1248. Accordingly, we affirm the
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
4
We reviewed the record mindful of the fact that “the 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 sentence
imposed following revocation.” Commonwealth v. Infante, 888 A.2d 783,
790 (Pa. 2005)
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2018
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