Com. v. Fitzpatrick, T.

• Court: Superior Court of Pennsylvania
• Decided: June 25, 2025
• Docket: 1569 WDA 2024
• Status: Unpublished

Opinion

J-S18006-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TREVION J FITZPATRICK : : Appellant : No. 1569 WDA 2024

Appeal from the Judgment of Sentence Entered November 22, 2024 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000084-2021

BEFORE: DUBOW, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED: June 25, 2025

Appellant Trevion J. Fitzpatrick appeals from the judgment of sentence

entered on November 22, 2024, in the Court of Common Pleas of Venango

County following the revocation of his probation. Appellant’s counsel, Tina

Fryling, Esq., has filed a petition to withdraw as counsel and an Anders1 brief,

to which Appellant has not filed a response. The Anders brief raises

Appellant’s challenge to the discretionary aspects of his sentence in which he

contends that the court imposed a harsh and excessive sentence because it

ordered his violation of probation (“VOP”) sentence to be consecutive to his

VOP sentence in another county. Upon review, we agree with counsel that

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* Former Justice specially assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967). J-S18006-25

the appeal is wholly frivolous, affirm the judgment of sentence, and grant

counsel’s petition to withdraw.

We glean the relevant procedural history from the VOP court’s opinion.

On June 10, 2021, Appellant pleaded guilty to Unlawful Contact with a Minor-

Without Consent and Indecent Exposure. On August 6, 2021, the court

sentenced Appellant to 7 to 24 months of incarceration followed by 60 months

of probation, with 186 days of credit for time served. The court also classified

Appellant as a Tier II sexual offender under the Sexual Offender Registration

and Notification Act (“SORNA”).2 Appellant did not file a direct appeal.

Probation staff learned that, on May 6, 2024, Appellant was present at

his girlfriend’s house while her 17-year-old daughter—the victim in Appellant’s

underlying case—was present. Being in the presence of a minor without prior

permission was a violation of the terms of Appellant’s probation. Appellant

later admitted to the violation, and the Commonwealth took him into custody.

At the time of the violation, Appellant was serving sentences in Venango

County in the present case, and also in Mercer County. On May 23, 2024, the

Mercer County court revoked Appellant’s probation due to both the events on

May 6, 2024, and prior violations. On June 6, 2024, the Mercer County court

imposed a VOP sentence of 18 months to 4 years of incarceration.

On July 12, 2024, the Commonwealth filed a petition to revoke

Appellant’s probation in the present case. Appellant stipulated to the violation,

2 42 Pa.C.S. §§ 9799.51-9799.75.

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and the court revoked his probation on August 2, 2024. At his resentencing

hearing, Appellant asserted that he had been at his girlfriend’s house because

she had overdosed, and this mitigated his actions. On November 22, 2024,

the court imposed an aggregate VOP sentence of 1½ to 4 years of

incarceration, consecutive to the sentence imposed in Mercer County.

Appellant appealed, and both he and the trial court complied with

Pa.R.A.P. 1925. Appellant’s counsel filed an Anders Brief raising the following

issue:

Were the sentences manifestly excessive and clearly unreasonable and not individualized as required by law, particularly in their consecutiveness?

Anders Br. at 1.

As a preliminary matter, we address Attorney Fryling’s request to

withdraw as counsel. “When presented with an Anders Brief, this Court may

not review the merits of the underlying issues without first passing on the

request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.

Super. 2010) (citation omitted). For counsel to withdraw from an appeal

pursuant to Anders, our Supreme Court has determined that counsel must

meet the following requirements:

(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

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(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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Attorney Fryling has complied with the mandated procedure for

withdrawing as counsel. Additionally, she confirms that she sent Appellant a

copy of the Anders brief and Petition to Withdraw, as well as a letter

explaining to Appellant that he has the right to retain new counsel, proceed

pro se, or raise any additional points. See Commonwealth v. Millisock,

873 A.2d 748, 751 (Pa. Super. 2005) (describing notice requirements).

Because Attorney Fryling has satisfied the above requirements, we will

first address the substantive issue raised in the Anders brief. Subsequently,

we must “make a full examination of the proceedings and make an

independent judgment as to whether the appeal is in fact wholly frivolous.”

Santiago, 978 A.2d at 355 n.5 (citation omitted); see also Commonwealth

v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders

requires the reviewing court to “review ‘the case’ as presented in the entire

record with consideration first of issues raised by counsel.”).

*

In the Anders brief, Attorney Fryling asserts that Appellant wishes to

argue that his VOP sentence was excessive because it was consecutive to his

VOP sentence in Mercer County, despite the mitigating factors underlying the

violation. A challenge to the imposition of consecutive sentences implicates

the discretionary aspects of sentencing. See Commonwealth v. Horning,

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193 A.3d 411, 418 (Pa. Super. 2018). Challenges to the discretionary aspects

of sentence are not appealable as of right. Commonwealth v. Leatherby,

116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the

sentencing court’s discretion must invoke this Court’s jurisdiction by (1) filing

a timely notice of appeal; (2) properly preserving the issue at sentencing or

in a motion to reconsider and modify the sentence; (3) complying with

Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth

“a concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence[;]” and (4) presenting a

substantial question that the sentence appealed from is not appropriate under

the Sentencing Code, 42 Pa.C.S. § 9781(b). Id. (citation omitted).

Our review confirms that Appellant has complied with the first three

requirements. Accordingly, we will consider whether his claim raises a

substantial question. An appellant “presents a substantial question when he

sets forth a plausible argument that the sentence violates a provision of the

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citation

and internal quotations marks omitted).

“A sentencing court generally has discretion to impose multiple

sentences concurrently or consecutively, and a challenge to the exercise of

that discretion does not ordinarily raise a substantial question.” Horning,

193 A.3d at 418 (citation omitted). Accordingly, Appellant’s claim that the

court abused its discretion in imposing consecutive sentences does not raise

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a substantial question. However, we have explained “that an excessive

sentence claim—in conjunction with an assertion that the court failed to

consider mitigating factors—raises a substantial question.” Id. (citation

omitted). Accordingly, we will address this claim.

“In general, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which, absent

an abuse of that discretion, will not be disturbed on appeal.” Commonwealth

v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (citation omitted). An abuse

of discretion is not merely an error in judgment—“[r]ather, the appellant must

establish, by reference to the record, that the sentencing court ignored or

misapplied the law, exercised its judgment for reasons of partiality, prejudice,

bias or ill will, or arrived at a manifestly unreasonable decision.”

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005) (citation

omitted). Finally, when the sentencing court has the benefit of a PSI report,

“we presume that [it] was aware of relevant information regarding the

defendant’s character and weighed those considerations along with any

mitigating factors” when imposing sentence. Commonwealth v. Sexton,

222 A.3d 405, 422 (Pa. Super. 2019) (citation omitted).

The VOP court explained that it imposed a consecutive sentence because

Appellant, a Tier II sex offender, admitted to being in the presence of not only

a minor, but the victim in this case. VOP Ct. Op. at 5-6. The court explained

that it was aware of Appellant’s arguments for mitigation in addition to the

documentation in this case, including the PSI, and the fact that he faced a

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VOP sentence in Mercer County based on the same conduct. Id. at 6.

Nevertheless, the court determined that Appellant is “not entitled to a windfall

on his Venango County sentence because Mercer County was able to sentence

him first.”3 Id.

Following our review, we discern no abuse of discretion. The court was

clear that it was aware of Appellant’s mitigation arguments when sentencing

him. Id. Nevertheless, the court determined that the circumstances of the

underlying crime and Appellant’s violation, which involved being in the

presence of the victim in direct contravention of the conditions of his

probation, warranted a consecutive sentence, as is within the court’s

discretion. Accordingly, this claim merits no relief.

Furthermore, following our independent review, we discern no

meritorious issues to be raised on appeal. Accordingly, we affirm Appellant’s

judgment of sentence.

Judgment of sentence affirmed. ____________________________________________

3 The court also explained that “a sentencing court has an interest in imposing

a sentence at resentencing that will vindicate the authority of the court.” Trial Ct. Op. at 6 (citing 42 Pa.C.S. § 9771(c)). However, the legislature amended Section 9771(c), effective June 11, 2024—prior to Appellant’s resentencing— to remove this language and address when a court can impose total confinement for technical violations. Nevertheless, upon review to discern whether there are any meritorious issues, we conclude that the court had authority to sentence Appellant to total confinement pursuant to Section 9771(c)(ii), which provides that the court may impose a sentence of total confinement if, inter alia, it “finds by clear and convincing evidence that the defendant committed a technical violation that involves an identifiable threat to public safety and the defendant cannot be safely diverted from total confinement through less restrictive means[.]” 42 Pa.C.S. § 9771(c)(ii).

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DATE: 6/25/2025

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