J-S12033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAY TYLER BARD, :
:
Appellant : Nos. 1460, 1461, 1462 MDA 2016
Appeal from the Judgment of Sentence August 10, 2016
in the Court of Common Pleas of Franklin County,
Criminal Division, No(s): CP-28-CR-0000206-2014,
CP-28-CR-0001558-2012, CP-28-CR-0001856-2013
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 21, 2017
Jay Tyler Bard (“Bard”) appeals from the judgments of sentence
entered following the revocation of probation for his separate convictions of
forgery, retail theft and possession of a controlled substance.1 Counsel for
Bard has filed a Petition to Withdraw from representation, and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant
counsel’s Petition to Withdraw and affirm Bard’s judgments of sentence.2
In its Opinion, the trial court concisely summarized the history
underlying the instant appeal. See Trial Court Opinion, 10/2/16, at 1-2
1
18 Pa.C.S.A. §§ 4101(a)(2), 3929(a)(1); 35 P.S. § 780-113(a)(1).
2
Bard filed separate appeals of the sentences imposed upon the revocation
of each sentence of probation. This Court consolidated the appeals for
review.
J-S12033-17
(unnumbered). We adopt the trial court’s recitation for the purpose of this
appeal. See id.
Before addressing Bard’s claims, this Court “must first pass upon
counsel’s petition to withdraw[.]” Commonwealth v. Orellana, 86 A.3d
877, 880 (Pa. Super. 2014).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief 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. Counsel also must provide a copy
of the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court[’]s attention in addition to the points raised by counsel in
the Anders brief.”
Orellana, 86 A.3d at 879-80 (some citations omitted). “Once counsel has
satisfied the above requirements, it is then this Court’s duty to conduct its
own review of the trial court’s proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.”
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J-S12033-17
Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008)
(citation omitted).
Here, counsel’s Petition to Withdraw states that he has reviewed the
record and concluded that the appeal is frivolous. Additionally, counsel
notified Bard that he was seeking permission to withdraw, furnished Bard
with copies of the Petition and Anders Brief, and advised Bard of his right to
retain new counsel or proceed pro se to raise any points he believes worthy
of this Court’s attention. Accordingly, counsel has satisfied the procedural
requirements of Anders. In addition, counsel’s Anders Brief meets the
substantive dictates of Santiago. Accordingly, we will proceed with our
independent review of the trial court’s proceedings to determine whether
Bard’s appeal is wholly frivolous.
In the Anders Brief, Bard presents the following claims for our review:
1. Did the trial court abuse its discretion when it sentenced
[Bard] to a sentence of 9 months to 60 months in a State
Correctional Institution [for his conviction of forgery at No.]
1558-2012?
2. Did the trial court abuse its discretion when it sentenced
[Bard] to a sentence of 6 months to 36 months in a State
Correctional Institution [for his conviction of retail theft at No.]
1856-2013?
3. Did the trial court abuse its discretion when it sentenced
[Bard] to a sentence of 3 months to 12 months in a State
Correctional Institution [for his conviction of simple possession
at No.] 206-2014?
Anders Brief at 9.
-3-
J-S12033-17
Bard’s claims challenge the discretionary aspects of his sentences,
from which there is no right of appeal. See 42 Pa.C.S.A. § 9781(b).
Instead, Bard must petition this Court for permission to appeal the
discretionary aspects of his sentences. Id.
As this Court has explained,
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence,[3] 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 appealed from is not appropriate under the Sentencing
Code[.]
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (footnote
added).
Here, Bard timely filed a Notice of Appeal, and properly preserved his
claims in a post-sentence motion. The Anders Brief also contains a
Pa.R.A.P. 2119(f) Statement of Reasons relied upon for allowance of appeal.
Consequently, we next address whether the appeal presents a substantial
question.
The determination of what constitutes a substantial question is
evaluated on a case-by-case basis. See Commonwealth v. Paul, 925 A.2d
3
“[W]hen a court revokes probation and imposes a new sentence, a criminal
defendant needs to preserve challenges to the discretionary aspects of that
sentence either by objecting during the revocation sentencing or by filing a
post-sentence motion.” Commonwealth v. Kalichak, 943 A.2d 285, 289
(Pa. Super. 2008).
-4-
J-S12033-17
825, 828 (Pa. Super. 2009). “A substantial question exits 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. Clarke, 70 A.3d 1281, 1286-87
(Pa. Super. 2013) (internal citations and quotation marks omitted).
In his Rule 2119(f) Statement, Bard’s counsel states that,
[d]ue to the fact that [Bard] received a legal sentence following
a re-sentencing hearing, it is undersigned counsel’s position that
Bard is unable to put forth a colorable argument that his
sentences were inconsistent with a specific provision of the
Sentencing Code, or contrary to the fundamental norms which
underlie the sentencing process, … so as to justify permission to
appeal in the Superior Court.
Anders Brief at 13. Notwithstanding the inadequacy of the Rule 2119(f)
Statement, we conduct our own independent review of the trial court’s
proceedings to determine whether there exist any non-frivolous issues that
could be raised in this appeal. See Wimbush, 951 A.2d at 382.
In his Post-Sentence Motion, Bard sought a modification of his
sentence, requesting
the opportunity to serve a term of imprisonment locally in the
Franklin County Jail. He makes this request based on his desire
to maintain his local employment through the Work Release
Program[,] and to be nearer to his family, including his son, who
are his support system. Additionally, he notes that the basis for
his violation of supervision is receiving new charges[,] and those
charges are merely pending at this point, as well as being behind
on payments, which is due to his current incarceration.
-5-
J-S12033-17
Post-Sentence Motion, 8/18/16, at 2. From Bard’s Post-Sentence Motion, it
appears that he challenged the fact that his sentences were to be served in
a state correctional facility, rather than the county jail.
In his Motion and on appeal, Bard failed to refer to any particular
provision of the Sentencing Code that requires a sentence following multiple
violations of probation to be served in a county jail rather than a state
correctional facility. Accordingly, we could conclude that Bard has failed to
raise 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 a state
correctional facility, rather than county jail, raised a substantial question
where the defendant was able to point to a violation of particular provision of
sentencing guidelines). However, as Bard’s present counsel filed the Post-
Sentence Motion and, on appeal, a Petition to Withdraw, we will address
Bard’s substantive claim in an abundance of caution.
“Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion.” Clarke, 70 A.3d at 1287 (citation omitted).
On appeal from resentencing following the revocation of probation, our
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
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Pa.C.S.A. § 9771(b). Once probation has been revoked, a sentence of total
confinement may be imposed if “the defendant has been convicted of
another crime; or the conduct of the defendant indicates that it is likely that
he will commit another crime if he is not imprisoned; or, such a sentence is
essential to vindicate the authority of court.” Commonwealth v.
Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001) (quoting 42 Pa.C.S.A.
§ 9771(c)).
In its Opinion, the trial court addressed Bard’s challenge to the
sentences imposed, and concluded that the challenge lacks merit. See Trial
Court Opinion, 10/2/16, at 2-4 (unnumbered). We agree with the sound
reasoning of the trial court, as set forth in its Opinion, and affirm on this
basis. See id.
Finally, our independent review discloses no other non-frivolous claims
that Bard could raise on appeal. Accordingly, we grant counsel’s Petition to
Withdraw, and affirm Bard’s judgments of sentence.
Petition to Withdraw granted. Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2017
-7-
Circulated 03/10/2017 09:47 AM
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF
PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, Criminal Action/
.,,/
vs. Nos. 1558-2012; 1856-2013; 206-2014
Jay Tyler Bard,
Defendant Honorable Carol L. Van Horn
OPINION sur PA. R.A.P. 1925(a) AND ORDER OF COUR]'.
Before Van Horn, P.J.
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIALDISTRICTOF
PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CriminalAction
vs. Nos. 1558-2012; 1856-2013; 206-2014
Jay Tyler Bard,
Defendant HonorableCarolL. Van Horn
STATEMENT OF THE CASE
On October 10, 2012, the above-captioned Defendant, Jay Tyler Bard, pled guilty to one
count of Forgery.1 On November 14, 2012, Defendant was sentenced to 24 months of Probation.
Since receiving his sentence, Defendant has violated the terms of his supervision by the Franklin
County Probation Department ("Probation Department") on four separate occasions. As a result
of his most recent violation, Defendant was sentenced by this Court on August 20, 2016, to a
period of 9-60 months in a State Correctional Institution ("SCI").
On November 20, 2013, Defendant pled guilty to one count of Retail Theft.2 The same
day, Defendant was sentenced to 48 months of Probation. Since receiving this sentence,
Defendant has violated the terms of his supervision by the Probation Department on three
separate occasions. As a result of his most recent violation, Defendant was sentenced by this
Court on August 20, 2016, to a period of 6-36 months in a SCI.3
On January 28, Defendant pled guilty to one count of Simple Possession.4 The same day,
Defendant was sentenced to 9 months of Intermediate Punishment ("IP"), Restrictive
Intermediate Punishments ("RIP") for 1 month, followed by 2 months of Intensive Supervision.
1
18 Pa. C.S.A. § 410l(a)(2). This criminal action is docketed under case number 1558-2012.
2
18 Pa. C.S.A. § 3929(a)(l). This criminal action is docketed under case number 1856-2013.
3
This sentence for case number 1856-2013 is to run concurrently with the sentence imposed on the same date for
case number 1558-2012.
4
18 Pa. C.S.A. § 780-l 13(a)(l). This criminal action is docketed under case number 206-2014.
Since receiving this sentence, Defendant has violated the terms and conditions of his IP on two
separate occasions. As a result of his most recent violation, Defendant was sentenced by this
Court on August 20, 2016, to a period of 3-12 months in a SCI. 5
Defendant filed a Post-Sentence Motion to Modify Sentence on August 18, 2016. This
Court denied the Motion on August 22, 2016. Defendant timely filed a Notice of Appeal on
September 6, 2016. Pursuant to this Court's order, Defendant's counsel timely filed a concise
statement of matters complained of on appeal on September 16, 2016.
On September 8, 2016, Defendant's appeals in each case were consolidated by Order of
the Superior Court. The Court will now respond to Defendant's claims of error in this Opinion
and Order of Court pursuant to Pa. R.A.P. 1925(a).
ISSUES RAISED
Defendant raises the following issues in his Concise Statement:6
1. Whether the Trial Court abused its discretion when it sentenced Defendant to a sentence
of 9 months to 60 months in a SCI in case 1558-2012?
2. Whether the Trial Court abused its discretion when it sentenced Defendant to a sentence
of 6 months to 36 months in a SCI in case 1856-2013?
3. Whether the Trial Court abused its discretion when it sentenced Defendant to a sentence
of 3 months to 12 months in a SCI in case 206-2014?
DISCUSSION
"Upon revoking probation, a sentencing court may choose from any of the sentencing
options that existed at the time of original sentencing, including incarceration." Commonwealth
v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (citing 42 Pa. C.S.A. § 9771(b)). "[T]he trial
5
This sentence for case number 206-2014 is to commence at the expiration of the sentence imposed on the same
date for case number 1558-2012.
6
Concise Statement of Errors Complained of on Appeal, September 16, 2016.
court is limited only by the maximum sentence that it could have imposed originally at the time
of the probationary sentence." Id. (quoting Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.
Super. 2013) (internal quotation marks and citations omitted)).
Here, Defendant was resentenced for violating the terms of all three matters for violating
the terms of his parole. 7 The Commonwealth represented to this Court that it was in agreement
with the Probation Department's recommendation of an aggregate sentence of six (6) years total
maximum sentence. T.P. Sentencing, August 10, 2016, at 2. The minimum sentence was one
(1) year. Id.
When imposing a sentence following a probation revocation, "the record as a whole must
reflect the sentencing court's consideration of the facts of the crime and character of the
offender." Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).
At the August 10, 2016 sentencing hearing, this Court stated:
Court: Sir, I reviewed the summary sheet that was prepared by the
Probation Department, which really is a packet of information.
You have accepted responsibility for receiving new charges.
I asked questions as to the status of that case because it's very
important to me to know what happened in that case involving the
new charges. Attorney Mangieri reported there was a hearing and
the MDJ found sufficient cause to move the case forward to trial.
That is a sufficient basis for the violation and for me resentencing
you at this point.
I do note from the report that this is your fourth violation. You had
the opportunity to attend the Day Reporting Center. You've been
on electronic monitoring; intense supervision; GPS tracking; Teen
Challenge, which you did successfully complete; and other drug
and alcohol treatment programs. However, despite this
intervention, you have received new charges.
I'm going to sentence you in accordance with the recommendation
of the Probation Department.
7
Defendant was granted parole on September 23, 2014, effective September 26, 2014, for a period of 57 months 6
days under the supervision of the Probation Department.
T.P. Sentencing, at 6- 7. It is clear that this Court reviewed the resentence summary sheet giving
due consideration to the facts and character of Defendant's crimes.
Furthermore, in Defendant's Concise Statement of Matters Complained of on Appeal,
Counsel for Defendant concedes that there are no non-frivolous issues to be raised on appeal and
acknowledges her intent to file an Anders brief at the Superior Court regarding the current issue.
As noted by the Defense Counsel, the issue before this Court has no merit as the Defendant was
given a legal sentence on his probation violation. Review of the sentencing hearing transcript
confirms this.
It is clear that Defendant, after being afforded several opportunities to satisfy his
obligations locally, was given a legal sentence to be served at a SCI. Accordingly, this Court
finds the issues raised by the Defendant meritless and respectfully requests the Superior Court to
dismiss the instant appeal.
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF
PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, Criminal Action
vs. No. 1558-201~ 18$-2013; 206-2014
Jay Tyler Bard,
Defendant Honorable Carol L. Van Horn
ORDER OF COURT
AND NOW THIS _ifDAY OF October, 2016, pursuant to Pa. R.A.P. 1931(c),
IT IS HEREBY ORDERED THAT the Clerk of Courts of Franklin County
shall promptly transmit to the Prothonotary of the Supreme Court the record in this matter
along with the attached Opinion sur Pa. R.A.P. 1925(a).
Pursuant to Pa. R. Crim. P. 114, the Clerk of Courts shall immediately docket this
Opinion and Order of Court and record in the docket the date it was made. The Clerk shall
forthwith furnish a copy of the Opinion and Order of Court, by mail or personal delivery, to each
party or attorney, and shall record in the docket the time and manner thereof
By the Court,
Carol L.Van Hom, P.J.
copies:
Franklin County District Attorney's Office
Shannon E. Barnett, Esq., Counsel for Defendant