J-S68042-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEO JAMES BRUNORI, :
:
Appellant : No. 744 MDA 2017
Appeal from the Judgment of Sentence January 30, 2017
in the Court of Common Pleas of Lackawanna County,
Criminal Division, at No(s): CP-35-CR-0002128-2009
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 09, 2017
Leo James Brunori (Appellant) appeals from his January 30, 2017
judgment of sentence of six to 12 months’ imprisonment following the
revocation of his 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 October 2, 2009, Appellant pled guilty to DUI: Highest Rate of
Alcohol- second offense, and was sentenced to five years of intermediate
punishment, with the first 90 days in confinement.
On August 2, 2011, following a violation, [Appellant] was
resentenced to a five year intermediate punishment sentence with
the first [90] days in confinement. On April 3, 2014, [Appellant]
stipulated to violating the terms of his supervision and was
resentenced to 84 days confinement followed by six months
*Retired Senior Judge assigned to the Superior Court.
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SCRAM[1] house arrest and four years’ probation. On June 19,
2014, as a result of [Appellant’s] multi-day alcohol use while on
SCRAM house arrest, [Appellant’s] sentence was again[] revoked
following a violation and resentenced to one year [and six] months
to three years confinement, followed by one year of probation.
[Pertinent to this appeal, on] January 30, 2017[, after a Gagnon
II2 hearing, Appellant was] found in violation for the fourth time
after he failed to report to his parole office, [and] was resentenced
to six to 12 months’ confinement consecutive to the parole hit he
was serving in the SCI.
[Appellant] filed a motion for reconsideration of sentence on
February 7, 2017, which was denied on March 31, 2017. Upon
motion, counsel for [Appellant] was permitted to withdraw on
March 10, 2017. [Appellant] filed a pro se notice of appeal on
April 25, 2017, and new counsel was appointed.[3]
1
SCRAM is alcohol monitoring house arrest.
2
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 At the outset, we recognize, as noted by the trial court, that Appellant’s
notice of appeal was not timely filed. To be considered timely-filed,
Appellant’s notice of appeal must have been filed thirty days after his
judgment of sentence was entered, irrespective of an outstanding motion for
sentence modification. See Pa.R.Crim.P. 708(e) (“A motion to modify a
sentence imposed after a revocation shall be filed within 10 days of the date
of imposition. The filing of a motion to modify sentence will not toll the 30-
day appeal period.”). However, this Court has found that when a defendant
is misinformed of his or her appellate rights, we will not quash an appeal for
want of a timely filed notice of appeal. See Commonwealth v. Coolbaugh,
770 A.2d 788, 791 (Pa. Super. 2001) (“[I]n similar situations we have declined
to quash the appeal recognizing that the problem arose as a result of the trial
court’s misstatement of the appeal period, which operated as a breakdown in
the court’s operation.”). Here, following the imposition of Appellant’s
sentence, the trial court stated that Appellant was entitled to file a motion for
reconsideration within ten days and “[i]f that’s denied, you have the right to
file an appeal to the Superior Court within 30 days of that motion has [sic]
been denied.”). N.T., 1/30/2017, at 8 (emphasis added). In light of this
misinformation that was relayed to Appellant, we decline to quash this appeal.
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Trial Court Opinion, 7/11/2017, at 2-3 (unnecessary capitalization and
repetition of quantities in numeral form omitted).
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-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:
[I]n 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
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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.
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.4 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 questions for this
Court’s review, which we have reordered for ease of disposition.
[1.] Whether the trial court erred and imposed an illegal sentence
when it directed that [] Appellant serve a [six-to-12-month]
sentence in a state correctional facility since the term of the
sentence is less than [24] months, which is in violation of 42
Pa.C.S.[] § 9762?
[2.] Whether the trial court erred when it revoked Appellant’s
probation and abused its discretion or otherwise imposed an illegal
sentence since his violation occurred before he began serving his
probationary sentence, and therefore, did not constitute a
violation of probation?
[3.] Whether the sentence imposed was inappropriately harsh and
excessive since the violation was a technical violation and was not
due to new charges being filed against Appellant?
4 Appellant has not filed a response to counsel’s petition to withdraw.
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[4.] Whether the trial court erred in not waiting for the completed
mental health evaluation in order to aid the court with determining
the appropriate sentence?
[5.] Whether the trial court erred and abused its discretion when
it directed that [] Appellant serve a [six-to-12-month] sentence in
a state correctional facility since the term of the sentence is less
than [24] months, which is in violation of 42 Pa.C.S.[] § 9762?
Anders Brief at 5 (suggested answers and unnecessary capitalization
omitted).
We first consider Appellant’s claim that his sentence is illegal pursuant
to 42 Pa.C.S. § 9762. Specifically, Appellant contends the trial court
wrongfully imposed a mandate that his six to 12 month sentence be served in
a state correctional institution as opposed to a county prison, in direct
contravention to the above-referenced statute. Anders Brief at 14. We
review this issue mindful of the following.
As long as the reviewing court has jurisdiction, a challenge to the
legality of the sentence is non-waivable and the court can even
raise and address it sua sponte. Issues relating to the legality of
a sentence are questions of law[.] As with all questions of law on
appeal, our standard of review is de novo and our scope of review
is plenary.
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (internal
citations and quotation marks omitted). Section 9762 provides the following
in relevant part.
(b) Sentences or terms of incarceration imposed after a
certain date. -- All persons sentenced three or more years after
the effective date of this subsection to total or partial confinement
shall be committed as follows:
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(1) Maximum terms of five or more years shall be committed to
the Department of Corrections for confinement.
(2) Maximum terms of two years or more but less than five
years shall be committed to the Department of Corrections
for confinement[.] …
(3) Maximum terms of less than two years shall be committed
to a county prison within the jurisdiction of the court.
42 Pa.C.S. § 9762(b).
On appeal, counsel for Appellant notes that after the filing of this appeal,
the trial court corrected its previous order and directed that Appellant’s
sentence be served in a county prison, and thus his sentence was no longer
in conflict with the mandates set forth in 42 Pa.C.S. § 9762(b). Anders Brief
at 14-15. Our review of the record confirms counsel’s finding. See Order
7/18/2017 (“[U]pon review of [Appellant’s] sentence in the above-captioned
matter, it is hereby ordered and decreed that [Appellant] shall be remanded
to Lackawanna County Prison to serve the remainder of the [six to 12] month
sentence imposed on January 30, 2017[.]”) (emphasis omitted). Thus, this
issue is moot.
Appellant’s remaining four issues all challenge the discretionary aspects
of his sentence.5 As such, we consider his claims mindful of the following. It
5 It appears Appellant attempts to also assert a legality claim within his second
issue, averring the trial court erred in imposing a sentence on a violation that
occurred before he began serving his probationary sentence. Anders Brief at
11. Although worded as a legality claim, in reality, Appellant is questioning
the trial court’s authority to sentence Appellant on a violation that occurred
prior to the beginning of his sentence. Even if we were to find that Appellant’s
claim implicates the legality of his sentence, as correctly noted by counsel,
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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).
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 appealed
from is not appropriate under the Sentencing Code,
42 Pa.C.S.A. § 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 he filed a motion to
reconsider sentence, which was denied by the trial court. Furthermore, the
Anders brief contains a statement pursuant to Pa.R.A.P. 2119(f).
the issue has no merit. See Commonwealth v. Ware (“The fact that
appellant had not commenced serving probation when the new offense
occurred did not prevent the court from revoking its prior order placing
appellant on probation.”).
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However, because the discretionary-aspects claims Appellant presents
on appeal are not identical to the one he presented in his post-sentence
motion, before considering whether Appellant’s issues raise a substantial
question, we must determine if Appellant’s claims are properly preserved for
our review. In so doing, we observe that
challenges to a court’s sentencing discretion must be raised during
sentencing or in a post-sentence motion in order for this Court to
consider granting allowance of appeal. Moreover, for any claim
that was required to be preserved, this Court cannot review a legal
theory in support of that claim unless that particular legal theory
was presented to the trial court. Thus, even if an appellant did
seek … to attack the discretionary aspects of sentencing in the
trial court, the appellant cannot support those claims in this Court
by advancing legal arguments different than the ones that were
made when the claims were preserved.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations
omitted).
In his post-sentence motion, Appellant requested a modification of his
sentence, allowing him to “serve his sentence at the Lackawanna County
Prison so that he may eventually be placed in the Work Release Center
enabling him to more quickly return to work.” Post-Sentence Motion,
2/7/2017, at 2 (unnumbered). At the hearing on Appellant’s motion, counsel
relayed that Appellant’s sentence had been ordered to be served in a state
correctional institution, and that he was requesting that his sentence be
served in county jail, so that he may, in time, petition for work release. See
N.T., 3/10/2017, at 2-3. Appellant did not include any of the discretionary
aspects claims he now seeks to litigate on appeal within in his motion nor did
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he argue these claims at the hearing. Therefore, we find his final four claims
waived. Rush, 959 A.2d at 949. It is well-settled that waived issues are
frivolous. Commonwealth v. Kalichak, 943 A.2d 285 (Pa. Super. 2008).
Thus, we agree with counsel that the issues raised regarding Appellant’s
sentence are frivolous. Moreover, we have conducted “a full examination of
the proceedings” and conclude that “the appeal is in fact wholly frivolous.” 6
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.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
6 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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