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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT CULLIS :
:
Appellant : No. 1727 EDA 2019
Appeal from the Judgment of Sentence Entered May 14, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002368-2016
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 14, 2020
Robert Cullis (“Cullis”) appeals from the judgment of sentence entered
following the revocation of his probation. Cullis’s counsel has filed an Anders1
brief and a petition to withdraw as counsel. We grant counsel’s petition to
withdraw and affirm the judgment of sentence.
Cullis entered into a negotiated guilty plea in October 2016 to Driving
Under the Influence and Possession of Drug Paraphernalia. Pursuant to the
plea, the court sentenced Cullis to a term of time served to six months of
incarceration, as well as one year of concurrent probation. The court later
issued a bench warrant in February 2017 for Cullis’s failure to comply with the
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1 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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terms of his probation. Following a Gagnon II hearing,2 the court sentenced
Cullis to back time of 83 days plus one year of concurrent probation.
The court issued a second bench warrant in February 2019 for Cullis’s
further failure to comply with the terms of his probation. The court held a
Gagnon II hearing at which Cullis stipulated to the violation. N.T., 5/14/19,
at 3. The court revoked Cullis’s probation based on his failures to complete his
alcohol and safe driving programs and pay his court costs. Id. at 7. He also
absconded from his dual diagnosis program. Id. at 10. Further, Cullis had an
open criminal matter in another county. Id. at 7-8. The court adopted Cullis’s
probation officer’s recommendation and resentenced Cullis to a new term of
time served to six months of incarceration with parole after completion of Prep
I and Prep II programs. Id. at 14. Cullis did not file a post-sentence motion.
This timely appeal followed.
Counsel for Cullis identifies the following issue in his Anders brief:
“Whether the term of incarceration imposed herein is harsh and excessive
under the circumstances due to its burdensome nature pertaining to his family
and its imposition based on an open charge for an unrelated offense allegedly
committed prior to his previous sentence[?]” Anders Br. at 3 (unnecessary
capitalization omitted).
We must first determine whether counsel has satisfied the procedural
requirements for withdrawing as counsel. See Commonwealth v. Goodwin,
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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (stating that “[w]hen faced
with a purported Anders brief, this Court may not review the merits of any
possible underlying issues without first examining counsel’s request to
withdraw”). In order to withdraw pursuant to Anders, counsel 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 that the defendant
deems worthy of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc). Further, in the Anders brief, counsel seeking to withdraw 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.
If counsel meets all of the above 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.” Id. at 355, n.5 (quoting Commonwealth v.
McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).
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Instantly, we find that counsel has complied with all of the above
technical requirements. In his Anders brief, counsel has provided a summary
of the procedural history and facts of the case with citations to the record.
Further, counsel’s brief includes an issue that could arguably support the
appeal, and counsel’s assessment of why that issue is frivolous, with citations
to the record and relevant legal authority. In addition, counsel served Cullis
with a copy of the Anders brief and advised him of his right to proceed pro
se or retain a private attorney to raise any additional points he deemed worthy
of this Court’s review. Application to Withdraw, 11/1/19, at ¶¶ 5-6. Cullis has
not responded to counsel’s petition to withdraw. As we find counsel has met
the technical requirements of Anders and Santiago, we will proceed to
determine if the issue counsel identified is wholly frivolous.
The issue presented in counsel’s Anders brief is whether Cullis’s
sentence was harsh and excessive. This issue challenges the discretionary
aspects of his sentence. “The right to appellate review of the discretionary
aspects of a sentence is not absolute, and must be considered a petition for
permission to appeal.” Commonwealth v. Conte, 198 A.3d 1169, 1173
(Pa.Super. 2018), appeal denied, 206 A.3d 1029 (Pa. 2019). Before reviewing
the merits of Cullis’s claim, we must determine whether: “(1) the appeal is
timely; (2) the appellant has preserved his issue; (3) his brief includes a
concise statement of the reasons relied upon for allowance of an appeal with
respect to the discretionary aspects of his sentence; and (4) the concise
statement raises a substantial question whether the sentence is inappropriate
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under the Sentencing Code.” Commonwealth v. Green, 204 A.3d 469, 488
(Pa.Super. 2019).
Here, engaging in the four-part analysis set forth in Green, the record
reflects that Cullis’s appeal is timely, his brief includes a concise statement of
the reasons relied upon for allowance of an appeal, and the concise statement
raises a substantial question whether the sentence is inappropriate under the
Sentencing Code. See Commonwealth v. Colon, 102 A.3d 1033, 1043
(Pa.Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015) (stating that the
imposition of a sentence of total confinement following the revocation of
probation based solely on a technical violation raises a substantial question).
However, Cullis has failed to preserve his issue for review. The
sentencing hearing transcript contains no objection from Cullis that the
sentence imposed was harsh and excessive and Cullis did not file a subsequent
motion to reconsider or modify his sentence. The appellant must have
presented the discretionary sentencing claim to the trial court by at least one
of these methods in order to preserve it for appellate review. See Cartrette,
83 A.3d at 1042. This rule applies equally in the revocation context. See
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008). “Absent
such efforts, an objection to a discretionary aspect of a sentence is waived.”
Cartrette, 83 A.3d at 1042 (citation omitted). Since Cullis did not raise the
issue at the sentencing hearing or in a post-sentence motion, Cullis did not
give the sentencing court the opportunity to reconsider or modify its
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sentence.3 This sentencing claim is therefore waived, and thus frivolous for
direct appeal. See id., 83 A.3d at 1042-43 (finding challenge to discretionary
aspects of sentencing wholly frivolous where appellant failed to raise it in a
post-sentence motion or at sentencing).
We also find the argument frivolous, as counsel states it. The record
demonstrates that the trial court took into account all of the testimony and
arguments put before it at the Gagnon II hearing, in addition to the history
of this case. At the Gagnon II hearing, Cullis stipulated to violating his
probation. The court found that in addition to having an open criminal matter
in another county, Cullis had repeatedly committed technical violations of his
probation. The court also heard argument regarding Cullis’s family obligations
and employment before making its decision. The record supports the trial
court’s implicit determination that “the conduct of the defendant indicates that
it is likely that he will commit another crime if he is not imprisoned” and “such
a sentence is essential to vindicate the authority of the court.” 42 Pa.C.S.A. §
9771(c)(2),(3).
We thus agree with counsel that the issue identified in his Anders brief
is wholly frivolous. Our independent review has revealed no non-frivolous
issues. We therefore affirm the judgment of sentence and grant the petition
to withdraw.
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3 Cullis’s counsel also did not raise the issue in his court-ordered Pa.R.A.P.
1925(b) concise statement. In his concise statement, Cullis’s counsel merely
stated that he intended to file an Anders brief.
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Petition to withdraw as counsel granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/20
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