J-S87005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHAD STEVEN WELCH,
Appellant No. 926 MDA 2016
Appeal from the Judgment of Sentence May 11, 2016
in the Court of Common Pleas of Franklin County
Criminal Division at No.: CP-28-CR-0000328-2015
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHAD STEVEN WELCH,
Appellant No. 967 MDA 2016
Appeal from the Judgment of Sentence May 11, 2016
in the Court of Common Pleas of Franklin County
Criminal Division at No.: CP-28-CR-0000607-2014
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 26, 2017
In these consolidated cases, Appellant, Chad Steven Welch, appeals
from the judgment of sentence imposed on May 11, 2016, following the
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*
Retired Senior Judge assigned to the Superior Court.
J-S87005-16
revocation of his probation and parole. Appellant’s counsel has filed a brief
and a petition to withdraw under Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),
alleging that the appeal is wholly frivolous. We affirm the judgment of
sentence and grant counsel’s request to withdraw.
We take the underlying facts and procedural history in this matter
from the trial court’s August 3, 2016 opinion.
On April 1, 2014, [Appellant] plead[ed] guilty to one count
of [t]heft by [u]nlawful [t]aking.[a] The same day, [Appellant]
was sentenced to [thirty-six] months of [i]ntermediate
[p]unishment (IP). [Appellant] served the first [four] months of
his sentence in the Franklin County Jail, the next [three] months
under house arrest, and the remainder of the sentence was to be
served under [the] supervision of the Franklin County Probation
Department. On February 2, 2015, [Appellant] was found in
violation of his IP sentence. On February 18, 2015, [Appellant]
was resentenced to [a term of incarceration of not less than
eight nor more than twenty-three months] in the Franklin
County Jail, to be followed by [twelve] months of probation.
[a]
18 Pa.C.S.A. § 3921(a). This criminal action is
docketed under case number 607-2014.
On March 18, 2015, [Appellant] plead[ed] guilty to
[a]ccidents [i]nvolving [d]eath or [p]ersonal [i]njury (AIDPI)[b]
and [r]ecklessly [e]ndangering [a]nother [p]erson (REAP).[c]
The same day, [Appellant] was sentenced to serve [not less than
three nor more than twelve months] on the AIDPI charge. The
sentence was to run concurrently with [Appellant’s] sentence in
case number 607-2014. Additionally, [Appellant] was sentenced
to [twelve] months of probation on the REAP charge.
[Appellant’s] probationary period was to run at the expiration of
his AIDPI sentence.
[b]
75 Pa.C.S.A. § 3742.
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[c]
18 Pa.C.S.A. § 2705. [Appellant’s] AIDPI and
REAP charges are docketed under case number 328-
2015.
On November 5, 2015, [Appellant] was found in violation
of the terms of his parole and probation. The same day,
[Appellant] was sentenced to serve the balance of his original
sentence in case number 607-2014.[d] [Appellant’s twelve]-
month probationary period in connection with case number 607-
2014 was reimposed. With regard to case number 328-2015,
[Appellant] was sentenced to serve the balance of his original
AIDPI sentence.[e] [Appellant’s twelve]-month probationary
period on the REAP charge was reimposed.
[d]
The remaining balance of [Appellant’s] sentence
was [ten] months and [six] days.
[e]
The remaining balance of [Appellant’s] sentence
was [seven] months and [one] day.
[The trial c]ourt, by a January 12, 2016 [o]rder, granted
[Appellant] parole effective January 22, 2016. On March 22,
2016, [the trial c]ourt found [Appellant] in violation of his terms
of supervision. On April 4, 2016, [the trial c]ourt vacated its
March 22, 2016 [o]rder upon notice that [Appellant] requested
the withdrawal of his violation hearing.
On May 11, 2016, [the trial c]ourt found [Appellant] in
violation of his terms of supervision in case number 607-2014,
and both counts of case number 328-2015. [The trial c]ourt
sentenced [Appellant] to serve the balance of his original
sentence on the AIDPI charge.[f] [The trial court] resentenced
[Appellant] to [not less than twelve nor more than twenty-four]
months in a [s]tate [c]orrectional [i]nstitute (SCI) on the REAP
charge and [not less than twelve nor more than thirty-six
months] in a SCI on case number 607-2[01]4. [Appellant’s] two
SCI sentences are to run concurrently.
[f]
The remaining balance of [Appellant’s] sentence
was [three] months and [one] day.
[Appellant] filed a [p]ost-[s]entence [m]otion to [m]odify
[s]entence on May 19, 2016. [The trial c]ourt denied the
[m]otion on May 23, 2016. [Appellant] timely filed a [n]otice of
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[a]ppeal on June 8, 2016. Pursuant to [the trial c]ourt’s order,
[Appellant’s] counsel timely filed a [c]oncise [s]tatement of
[errors c]omplained of on [a]ppeal on June 20, 2016. [See
Pa.R.A.P. 1925(b). The trial court filed an opinion on August 3,
2016. See Pa.R.A.P. 1925(a)].
On July 11, 2016, [Appellant’s] appeals were consolidated
by [o]rder of [this Court]. . . .
(Trial Court Opinion, 8/03/16, at 1-3).
On September 13, 2016, counsel filed a motion to withdraw and
Anders brief in this Court. Appellant has not filed a response.
On appeal, the Anders brief raises the following questions for our
review:
1. Did the trial court abuse its discretion when it
sentenced [Appellant] to a sentence of [not less than twelve nor
more than twenty-four] months in a [SCI] in case 328-2015?
2. Did the trial court abuse its discretion when it
sentenced [Appellant] to a sentence of [not less than twelve nor
more than thirty-six] months in a [SCI] in case 607-2014?
(Anders Brief, at 8).
Appellant’s counsel has petitioned for permission to withdraw and has
submitted an Anders brief, which is procedurally proper for counsel seeking
to withdraw on direct appeal. See Anders, supra at 744. Court-appointed
counsel who seeks to withdraw from representing an appellant on direct
appeal on the basis that the appeal is frivolous 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
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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, supra at 361. When we receive an Anders brief, we first rule on
the petition to withdraw and then review the merits of the underlying issues.
See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).
In addition, “[p]art and parcel of Anders is our Court’s duty to review the
record to insure no issues of arguable merit have been missed or misstated.”
Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).
In the instant matter, counsel has substantially complied with all the
requirements of Anders and Santiago. Specifically, she has petitioned this
Court to withdraw because “[she] believes this to be a wholly frivolous
appeal[.]” (Petition of Appellant’s Counsel for Leave to Withdraw, 9/13/16,
at unnumbered page 1). In addition, after her review of the record, counsel
filed a brief with this Court that provides a summary of the procedural
history and facts with citations to the record, refers to any facts or legal
theories that arguably support the appeal, and explains why she believes the
appeal is frivolous. (See Anders Brief, at 13-14). Lastly, she has attached,
as an exhibit to her motion to withdraw, a copy of the letter sent to
Appellant giving him notice of his rights, and including a copy of the Anders
brief and the petition. (See Petition of Appellant’s Counsel for Leave to
Withdraw, 9/13/16, at Exhibit A); see also Commonwealth v. Millisock,
873 A.2d 748, 751-52 (Pa. Super. 2005). As noted above, Appellant has not
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responded. Because counsel has substantially complied with the dictates of
Anders, Santiago, and Millisock, we will examine the issues set forth in
the Anders brief. See Garang, supra at 240-41.
In the Anders brief, both of Appellant’s issues challenge the
discretionary aspects of his sentence.1 In Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc), this Court held that “[our] scope of
review in an appeal from a revocation sentencing includes discretionary
sentencing challenges.” Cartrette, supra at 1034. Thus, Appellant’s claims
are properly before us.
The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant
challenges the discretionary aspects of the sentence imposed, he must
present “a substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
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1
We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See McAfee, infra at 275.
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to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If
an appellant’s Rule 2119(f) statement meets these prerequisites, we
determine whether a substantial question exists. See Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,
759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which
the appeal is sought, in contrast to the facts underlying the appeal, which
are necessary only to decide the appeal on the merits.” Id. (emphases in
original).
Here, counsel has included a Rule 2119(f) statement in the Anders
brief. (See Anders Brief, at 12). In it, counsel states that Appellant’s
sentence was legal and that she is unable to “put forth a colorable argument
that his sentences were inconsistent with a specific provision of the
[s]entencing [c]ode, or contrary to the fundamental norms which underlie
the sentencing process . . .” (Id.). However, in the body of the argument,
counsel states that Appellant believes that his sentence was unreasonable
because the trial court sentenced him to a SCI rather than a county jail
where he could be placed on work release. (See Anders Brief, at 13).
In the instant matter, Appellant has failed to point to any particular
provision of the sentencing code that requires a sentence following multiple
violations of both probation and parole to be served in a county jail rather
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than a state correctional facility. (See Anders Brief, at 13-14).
Accordingly, we do not find that Appellant has raised a substantial question.
Cf. Commonwealth v. Hartle, 894 A.2d 800, 806 (Pa. Super. 2006)
(holding that claim that sentencing court abused its discretion by sentencing
defendant to serve his sentence in state correctional facility rather than
county jail raised substantial question where defendant was able to point
to violation of particular provision of sentencing guidelines).
Appellant’s issues lack merit. Further, this Court has conducted an
independent review of the record as required by Anders and Santiago and
finds that no non-frivolous issues exist.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2017
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Com. v. Welch, C.
Combined Opinion