J-S41036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
TERRANCE BISHOP
Appellant No. 355 EDA 2014
Appeal from the Judgment of Sentence January 7, 2014 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005578-2007
BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 05, 2014
Appellant, Terrance Bishop, appeals from the January 7, 2014
robation
was revoked and Appellant presented for resentencing. Additionally,
Counsel has filed a petition to withdraw together with an Anders Brief,
concluding the appeal is frivolous.1 After careful review, we affirm the
judgment of sentence and grant c
We summarize the factual and procedural history of this case as
follows. On June 9, 2008, Appellant entered a guilty plea to two counts of
possession with intent to deliver a controlled substance (cocaine), 35 P.S.
§ 780-113(a)(30). On that same day, the trial court sentenced Appellant to ____________________________________________ 1 Anders v. California, 386 U.S. 738 (1967). J-S41036-14
a term of incarceration of 15 to 36 months on the first count, and a
serving his parole, Appellant was convicted of delivery of a controlled
substance (marijuana), 35 P.S. § 780-113(a)(30).2 A petition for revocation
October 23, 2013. At his Gagnon I hearing,3 on January 7, 2014, Appellant
stipulated to the allegations in the petition, waiving the necessity of a
Gagnon II hearing. N.T., 1/9/14, at 3. The trial court thereupon revoked
The Commonwealth requested imposition of a sentence of incarceration of
18 to 36 months. Id. at 5-6. Appellant argued for leniency due to his
family obligations to his ailing mother and his 13-year-old son, and due to
the time he already spent incarcerated as a result of the new charge and
parole violation. Id. at 8, 15-16. The trial court sentenced Appellant to 12
Appellant filed no post-sentence motion. On February 4, 2014,
Appellant filed a timely notice of appeal. The trial court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). In accordance with ____________________________________________ 2 Appellant was sentenced to a term of incarceration of 6 to 23 months on the new charge. Additionally, Appellant was serving back time as a result of the revocation of his parole on count one of his June 9, 2008 sentence at the time of the instant revocation of his probation for count two. 3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
-2- J-S41036-14
Subsection (c)(4) of the Rule, in lieu of a concise statement, Counsel gave
notice of his intent to file an Anders brief.
representation together with an Anders brief. Appellant has not filed a
Anders brief. In his Anders
brief, counsel raises the following issue for our review.
[1.] Whether the sentence imposed upon [Appellant] for violating his probation was harsh and excessive under the circumstances?
Anders Brief at 3.
Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Anders brief for
compliance with the requirements set forth by our Supreme Court in
Santiago.
[W]e hold that in the Anders brief that accompanies court- 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) he appeal is
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.
-3- J-S41036-14
Santiago, supra at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
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
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
independent judgment
Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Instantly, we are satisfied that counsel has complied with the
requirements of Anders and Santiago. Counsel carefully summarized the
pertinent procedural history and made appropriate references to the record.
He acknowledged his own review of the record, articulated one issue that
could arguably support an appeal, but stated his conclusion that the appeal
is nevertheless frivolous. Further, he set forth the reasons upon which he
based that conclusion. Counsel has also complied with the notification
requirements described in Millisock, supra. Since receiving notice,
-4- J-S41036-14
Appellant has not filed any response. We therefore proceed with our
behalf.
In considering an appeal from a sentence imposed 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. Revocation of a probation sentence is a matter committed to the sound
will not be disturbed on appeal in the absence of an error of law or an abuse of discretion.
Commonwealth v. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (citation
omitted), affirmed, 44 A.3d 58 (Pa. 2012). Further, the scope of our review
following the imposition of a new sentence following revocation of probation
includes challenges to the discretionary aspects of the sentence.
Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en
banc).
discretionary aspects of the January 9, 2014 sentence.
discretionary aspects of a sentence must be considered a petition for
Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en
banc) (citation omitted), appeal denied, 75 A.3d 1281 (Pa. 2013).
y after this Court determines that there is a substantial
-5- J-S41036-14
question that the sentence was not appropriate Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)].
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J-S41036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
TERRANCE BISHOP
Appellant No. 355 EDA 2014
Appeal from the Judgment of Sentence January 7, 2014 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005578-2007
BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 05, 2014
Appellant, Terrance Bishop, appeals from the January 7, 2014
robation
was revoked and Appellant presented for resentencing. Additionally,
Counsel has filed a petition to withdraw together with an Anders Brief,
concluding the appeal is frivolous.1 After careful review, we affirm the
judgment of sentence and grant c
We summarize the factual and procedural history of this case as
follows. On June 9, 2008, Appellant entered a guilty plea to two counts of
possession with intent to deliver a controlled substance (cocaine), 35 P.S.
§ 780-113(a)(30). On that same day, the trial court sentenced Appellant to ____________________________________________ 1 Anders v. California, 386 U.S. 738 (1967). J-S41036-14
a term of incarceration of 15 to 36 months on the first count, and a
serving his parole, Appellant was convicted of delivery of a controlled
substance (marijuana), 35 P.S. § 780-113(a)(30).2 A petition for revocation
October 23, 2013. At his Gagnon I hearing,3 on January 7, 2014, Appellant
stipulated to the allegations in the petition, waiving the necessity of a
Gagnon II hearing. N.T., 1/9/14, at 3. The trial court thereupon revoked
The Commonwealth requested imposition of a sentence of incarceration of
18 to 36 months. Id. at 5-6. Appellant argued for leniency due to his
family obligations to his ailing mother and his 13-year-old son, and due to
the time he already spent incarcerated as a result of the new charge and
parole violation. Id. at 8, 15-16. The trial court sentenced Appellant to 12
Appellant filed no post-sentence motion. On February 4, 2014,
Appellant filed a timely notice of appeal. The trial court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). In accordance with ____________________________________________ 2 Appellant was sentenced to a term of incarceration of 6 to 23 months on the new charge. Additionally, Appellant was serving back time as a result of the revocation of his parole on count one of his June 9, 2008 sentence at the time of the instant revocation of his probation for count two. 3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
-2- J-S41036-14
Subsection (c)(4) of the Rule, in lieu of a concise statement, Counsel gave
notice of his intent to file an Anders brief.
representation together with an Anders brief. Appellant has not filed a
Anders brief. In his Anders
brief, counsel raises the following issue for our review.
[1.] Whether the sentence imposed upon [Appellant] for violating his probation was harsh and excessive under the circumstances?
Anders Brief at 3.
Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Anders brief for
compliance with the requirements set forth by our Supreme Court in
Santiago.
[W]e hold that in the Anders brief that accompanies court- 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) he appeal is
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.
-3- J-S41036-14
Santiago, supra at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
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
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
independent judgment
Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Instantly, we are satisfied that counsel has complied with the
requirements of Anders and Santiago. Counsel carefully summarized the
pertinent procedural history and made appropriate references to the record.
He acknowledged his own review of the record, articulated one issue that
could arguably support an appeal, but stated his conclusion that the appeal
is nevertheless frivolous. Further, he set forth the reasons upon which he
based that conclusion. Counsel has also complied with the notification
requirements described in Millisock, supra. Since receiving notice,
-4- J-S41036-14
Appellant has not filed any response. We therefore proceed with our
behalf.
In considering an appeal from a sentence imposed 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. Revocation of a probation sentence is a matter committed to the sound
will not be disturbed on appeal in the absence of an error of law or an abuse of discretion.
Commonwealth v. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (citation
omitted), affirmed, 44 A.3d 58 (Pa. 2012). Further, the scope of our review
following the imposition of a new sentence following revocation of probation
includes challenges to the discretionary aspects of the sentence.
Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en
banc).
discretionary aspects of the January 9, 2014 sentence.
discretionary aspects of a sentence must be considered a petition for
Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en
banc) (citation omitted), appeal denied, 75 A.3d 1281 (Pa. 2013).
y after this Court determines that there is a substantial
-5- J-S41036-14
question that the sentence was not appropriate Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)]. In determining whether a substantial question exists, this Court does not examine the merits of the sentencing claim. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011). Furthermore, a defendant is required to preserve the issue in a court-ordered Pa.R.A.P.1925(b) concise statement and a Pa.R.A.P. 2119(f) statement. Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012).
Cartrette, supra at 1042.
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
specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.
Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (internal
quotation marks and citations omitted), appeal denied, 63 A.3d 774 (Pa.
2013).
Instantly, Appellant has not preserved his issue in a timely post-
sentence motion. We therefore look to the record to determine if Appellant
preserved his issue by raising his claim at the sentencing proceeding.
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During the sentencing proceeding, Appellant argued for leniency based on
the nature of his violation, the additional time already spent incarcerated,
his family obligations, and his efforts to reform. N.T., 1/7/14, at 8, 15-16.
In response to those arguments, the trial court entered a sentence of 12 to
Id. at 5-6, 19. The trial court then asked if the
Id. at 19.
there was no objection. Id. at 19-20. After being advised by counsel to
accept the sentence, Appellant indicated to the trial court that he had no
additional questions. Id. at 20. Accordingly, having failed to allege any
error at the time of sentencing and having filed no post-sentencing motion,
Appellant has waived his discretionary aspect of sentence issues on appeal.
Lamonda, supra; see also Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 20
sentence claims were waived where, although appellant argued mitigation at
imposition of sentence during the sentencing hearing or in a post-sentencing
motion).
counsel that the instant appeal is wholly frivolous. We therefore grant
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sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/5/2014
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