Com. v. Cribbs, K.

J-S13006-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

KYLE DAVEY CRIBBS,

Appellant No. 278 WDA 2018

Appeal from the Judgment of Sentence Entered January 17, 2018
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s):
CP-33-CR-0000624-2013
CP-33-CR-0000626-2013

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 07, 2019

Appellant, Kyle Davey Cribbs, appeals from the judgment of sentence of

an aggregate term of 10 to 20 years’ imprisonment, imposed after the court

revoked his probation based on a new conviction in an unrelated case.

Counsel seeks permission to withdraw from further representation pursuant

to Anders v. California, 386 A.2d 738 (Pa. 1967). Upon review, we find that

counsel’s Anders brief satisfies the requirements set forth in

Commonwealth v. Santiago, 97 A.2d 349 (Pa. 2009). Accordingly, we

grant counsel’s petition to withdraw and affirm the judgment of sentence.

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* Retired Senior Judge assigned to the Superior Court.
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We glean the following relevant facts and procedural history from the

record. On March 19, 2014, in the Court of Common Pleas of Jefferson County,

Appellant entered a guilty plea to two charges of possession with intent to

deliver a controlled substance1 at Nos. CP-33-CR-624-2013 and CP-33-CR-

626-2013. On that same date, Appellant was sentenced to an aggregate

terms of 8 to 16 months’ state incarceration, followed by 20 months’

probation.

On August 9, 2016, after taking judicial notice of a guilty plea that

Appellant entered regarding new charges in Clearfield County,2 the trial court

revoked Appellant’s probation and re-sentenced Appellant to 3 years’

probation at docket Nos. CP-33-CR-624-2013 and CP-33-CR-626-2013, with

the sentences to run concurrent to each other and consecutive to the sentence

imposed for a conviction in Jefferson County at CP-33-CR-143-2013.

On January 17, 2018, after taking judicial notice of Appellant’s

conviction and sentencing for new charges of endangering the welfare of

children and simple assault at docket No. CP-33-CR-540-2017, the trial court

revoked Appellant’s probation at docket Nos. CP-33-CR-624-2013 and CP-33-

CR-626-2013 and re-sentenced Appellant to an aggregate term of 10 to 20
____________________________________________

1 35 P.S. § 780-113(a)(30).

2 On March 29, 2016, Appellant was charged with driving under the influence
by the Dubois City Police Department from an incident that occurred on
December 11, 2015. Additionally, Appellant admitted to the purchase and use
of methamphetamines.

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years’ imprisonment.3 Appellant filed a motion for reconsideration on January

25, 2018, which was denied by the court on that same date.

On February 15, 2018, Appellant filed a timely appeal, followed by a

timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.4 Appellant now presents the following issue for our

review, via counsel’s Anders brief: “Whether the [t]rial [c]ourt committed an

abuse of discretion when it revoked Appellant’s probation/parole and re-

sentenced him to serve sentences aggregating to a minimum of ten (10) years

and to a maximum of twenty (20) years in a state correctional institution given

the circumstances of the case[?]” Anders Brief at 4.

“When faced with a purported Anders brief, this Court may not review

the merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Rojas, 875 A.2d 638, 639 (Pa. Super. 2005)

(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.

1997)).

____________________________________________

3Appellant was re-sentenced to 2½ to 5 years’ imprisonment at No. CP-33-
CR-624-2013, and to 7½ to 15 years’ imprisonment at No. CP-33-CR-626-
2013.

4We recognize that our Supreme Court recently held that “the proper practice
under Rule 341(a) is to file separate appeals from an order that resolves issues
arising on more than one docket. The failure to do so requires the appellate
court to quash the appeal.” Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018). The Court tempered its holding, however, by making it
prospective only. The Walker opinion was filed on June 1, 2018; hence, this
holding is not applicable in the instant matter, as Appellant filed his notice of
appeal on February 15, 2018.

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Court-appointed counsel who seeks to withdraw from representing
an appellant on direct appeal on the basis that the appeal is
frivolous 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) file a brief referring to anything that arguably might
support the appeal but which does not resemble a “no-
merit” letter to amicus curiae brief; and (3) furnish a copy
of the brief to the [appellant] and advise the [appellant] of
his or her right to retain new counsel or raise any additional
points that he or she deems worthy of the court’s attention.

Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998)
(citation omitted).

Rojas, 874 A.2d at 639. Appellant’s counsel has complied with these

requirements. Counsel petitioned for leave to withdraw, and filed a brief

satisfying the requirements of Anders, as discussed, infra. Counsel also

provided a copy of the brief to Appellant, and submitted proof that he advised

Appellant of his right to retain new counsel, proceed pro se, and/or to raise

new points not addressed in the Anders brief.

Our Supreme Court has held, in addition, that counsel must explain the

reasons underlying his assessment of Appellant’s case and his conclusion that

the claims are frivolous. Thus, counsel’s Anders brief must satisfy the

following criteria before we may consider the merits of the underlying appeal:

[W]e 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

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case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.

Santiago, 978 A.2d at 361.

Upon review of the Anders brief submitted by Appellant’s counsel, we

find it complies with the technical requirements of Santiago. Counsel’s

Anders brief (1) provides a summary of the procedural history and facts of

this case; (2) directs our attention, when applicable, to the portions of the

record that ostensibly supports Appellant’s claim of error; (3) concludes that

Appellant’s claim is frivolous; and (4) does so by citation to the record and

appropriate/applicable legal authorities. Thus, we now examine whether

Appellant’s claim is, indeed, frivolous. We also must “conduct a simple review

of the record to ascertain if there appear on its face to be arguably meritorious

issues that counsel, intentionally or not, missed or misstated.” Com. V.

Dempster, 187 A.3d 266, 277 (Pa. Super. 2018) (en banc).

Appellant’s allegations relate to the discretionary aspects of his

sentence.

Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
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.[] § 9781(b).

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Objections to the discretionary aspects of 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and internal quotations omitted).

Here, the record reflects that Appellant filed a timely notice of appeal,

properly preserved his claim in his post-sentence motion, and counsel has

included a Rule 2119(f) statement in his Anders brief in compliance with

Pennsylvania Rules of Appellate Procedure.5 Thus, we proceed to determine

whether Appellant has raised a substantial question to meet the fourth

requirement of the four-part test outlined above.

As we explained in Moury:

The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.

Id. at 170 (citations and internal quotations omitted).

Appellant maintains in his Rule 2119(f) statement that his revocation

sentence is manifestly unreasonable “in that it was excessive and constituted

too severe a punishment under the circumstances of the case and the

probation violation….” Appellant’s Brief at 7. Appellant further avers that the

reasons given by the trial court for the sentence do not justify the severity of

____________________________________________

5 We recognize that where counsel files an Anders brief, we may review the
issue even absent a Rule 2119(f) statement. See Commonwealth v.
Ziegler, 112 A.3d 656, 661 (Pa. Super. 2015).

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the sentence. Id. Based on the arguments presented in Appellant’s Rule

2119(f) statement, and the case law on which he relies, we conclude that he

has presented a substantial question for our review. See Commonwealth v.

Simmons, 56 A.3d 1280, 1286 (Pa. Super. 2012) (quoting Commonwealth

v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“A claim that a sentence is

manifestly excessive such that it constitutes too severe a punishment raises

a substantial question.”)).

Accordingly, we will review the merits of Appellant’s claim, mindful of

the following standard of review:

Sentencing is a matter vested within the discretion of the trial
court and will not be disturbed absent a manifest abuse of
discretion. An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous. It is also now accepted that in an appeal following the
revocation of probation, it is within our scope of review to consider
challenges to both the legality of the final sentence and the
discretionary aspects of an appellant’s sentence.

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)

(citations omitted). Moreover, when we consider an appeal from a sentence

imposed following the revocation of probation,

[o]ur review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the
time of the initial sentencing. 42 Pa.C.S. § 9771(b). Also, upon
sentencing following a revocation of probation, the trial court is
limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence.

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Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)

(internal citation omitted).

The reason for the trial court’s broad discretion in sentencing and the

deferential standard of appellate review is that “the sentencing court is in the

best position to measure various factors and determine the proper penalty for

a particular offense based upon an evaluation of the individual circumstances

before it.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (internal

citation and quotation marks omitted). Our Supreme Court has recognized

that the sentencing court’s “institutional advantage” is, perhaps, even “more

pronounced in fashioning a sentence following the revocation of probation,

which is qualitatively different than an initial sentencing proceeding.”

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).

At initial sentencing, all of the rules and procedures designed to
inform the court and to cabin its discretionary sentencing
authority properly are involved and play a crucial role. However,
it is a different matter when a defendant reappears before the
court for sentencing proceedings following a violation of the mercy
bestowed upon him in the form of a probationary sentence. For
example, in such a case, contrary to when an initial sentence is
imposed, the Sentencing Guidelines do not apply, and the
revocation court is not cabined by Section 9721(b)’s requirement
that “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. § 9721. See Commonwealth v. Reaves, … 923 A.2d
1119, 1129 ([Pa.] 2007) (citing 204 Pa.Code. § 303.1(b)
(Sentencing Guidelines do not apply to sentences imposed as
result of revocation of probation)).

Id.

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Here, Appellant concedes that a period of incarceration was warranted,

but he argues that the imposition of consecutive sentences with an aggregate

term of 10 to 20 years’ imprisonment was manifestly unreasonable.

Appellant’s Brief at 10. Appellant notes that Jefferson County Adult Probation

recommended an aggregate sentence of 7½ to 20 years’ imprisonment, and

he suggests that a shorter sentence would have been more than adequate

protection of the public. Id.

Having carefully reviewed the record of Appellant’s sentencing

proceeding, we ascertain no abuse of discretion by the court. Initially, we

stress that the court had the benefit of a pre-sentence investigation report

and reviewed that report prior to the sentencing proceeding. N.T. Sentencing,

1/17/17, at 4-5. Additionally, the trial court indicated that it took into

consideration the fact that the mother of Appellant’s children (“Amanda”) and

Appellant’s father both obtained protection from abuse (“PFA”) orders against

Appellant. Id. at 5. While in jail, Appellant repeatedly attempted to contact

Amanda and his father in violation of the PFA orders. Id. The court stated

that these actions demonstrated Appellant’s “lack of care and concern to any

of the court’s objectives or to any of the court’s orders or rules[,]” and

concluded, thus, that boot camp or the State Intermediate Punishment

program (“SIP”) would not be appropriate. Id. The court further addressed

Appellant from the bench:

[T]his type of assaultive behavior and threatening behavior,
getting PFA[] [orders] from your family members, from the people

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you love, that it shows you could and are potentially dangerous to
individuals, especially those closest to you.

So[,] I think … that the maximum sentence is deserved and [is]
also necessary to protect the public and your own family against
you and to give you some time to reach statistical maturity age
where perhaps you could control your own behaviors, which you
haven’t been able to do on the street since you were a juvenile.

Id. at 5-6.

Additionally, the trial court summarized its reasoning in support of

Appellant’s post-revocation sentence in its Rule 1925(a) opinion, in which it

so aptly opined:

Before the [c]ourt for re-sentencing, [Appellant] purported
to take responsibility for his actions and, indicating his interest in
being rehabilitated, asked it to consider SIP or motivational boot
camp rather than the longer state sentence being recommended
by Probation. His history and demeanor, however, suggested that
he was only saying what he thought might result in a more
favorable outcome. In that regard, his conduct at the jail while
awaiting disposition at CP-33-CR-540-2017[,] and his devil-may-
care attitude during proceedings related to that case[,] were far
more instructive than the words he uttered on January 17, 2018.

Faced with a young man whose mindset and criminal
proclivities had been unaffected by his previous dealings with the
criminal justice system, therefore, the [c]ourt imposed a
maximum term of incarceration. Certainly[,] a prior post-
revocation sentence (with a boot camp recommendation) had not
proven effective, … nor had the drug rehab to which he repeatedly
referred in his pro se filings. An escalated sentence was thus
warranted—one that would keep him sequestered from a
community full of potential victims for the longest possible period
of time while he matured and learned self-control. With the credit
he was due for time served, though, it was also a sentence that
offered him the potential for release within a few years.

Trial Court Opinion, 5/31/18, at 1-2 (citations to record and footnote omitted).

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To the extent that Appellant contends that the court failed to explain its

reasoning for imposing a harsher sentence on Appellant post-revocation, we

note that:

[F]ollowing revocation, a sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or
specifically reference the statutes in question. Simply put, since
the defendant has previously appeared before the sentencing
court, the stated reasons for a revocation sentence need not be
as elaborate as that which is required at initial sentencing. The
rationale for this is obvious. When sentencing is a consequence
of the revocation of probation, the trial judge is already fully
informed as to the facts and circumstances of both the crime and
the nature of the defendant….

Pasture, 107 A.3d at 28. The Pasture Court further emphasized that “a trial

court does not necessarily abuse its discretion in imposing a seemingly

harsher post-revocation sentence where the defendant received a lenient

sentence and then failed to adhere to the conditions imposed on him.” Id.

Based on our review of the record, we are satisfied with the justification

provided for the sentence imposed on Appellant post-revocation, and we

discern no abuse of discretion by the trial court.

Finally, our review of the record reveals no other potential, non-frivolous

issues which Appellant could raise on appeal. As such, we agree with counsel

that a direct appeal in this case is wholly frivolous. Accordingly, we grant

counsel’s motion to withdraw.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/7/2019

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