Com. v. Powanda, J.

• Court: Superior Court of Pennsylvania
• Decided: April 22, 2026
• Docket: 1830 MDA 2024
• Status: Unpublished
• Author: Lane

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN ALBERT POWANDA : : Appellant : No. 1830 MDA 2024

Appeal from the Judgment of Sentence Entered November 8, 2024 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000753-2023

BEFORE: OLSON, J., MURRAY, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED: APRIL 22, 2026

Justin Albert Powanda (“Powanda”) appeals from the judgment of

sentence imposed following the revocation of his probation. Additionally,

Powanda’s court-appointed counsel, Ashley Sabol, Esquire (“Attorney Sabol”),

has filed a petition to withdraw from representation and a brief styled pursuant

to Anders v. California, 386 U.S. 738 (1967). We grant Attorney Sabol’s

petition and affirm the judgment of sentence.

In March 2024, a jury convicted Powanda of possession of a controlled

substance, possession of a small amount of marijuana, and possession of drug

paraphernalia.1 For these crimes, the trial court imposed an aggregate

sentence of twenty-four months’ probation. In October 2024, the

Commonwealth filed a motion to revoke Powanda’s probation, alleging that he

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1 See 35 P.S. §§ 780-113(a)(16), (31)(i), (32). J-S35040-25

was in violation of his probation for, inter alia, incurring new criminal charges,2

failing to report to the adult probation office on multiple occasions, and failing

to submit to drug and urinalysis testing. See Motion to Revoke Probation,

10/30/24, at unnumbered 4-5. On November 8, 2024, the trial court held a

hearing on the motion, during which Powanda stipulated to the

Commonwealth’s pending charges against him, and his supervising probation

officer testified to his noncompliance with the conditions of his probation. At

the conclusion of the hearing, the trial court revoked Powanda’s probation and

imposed an aggregate term of six to twelve months’ imprisonment, with an

effective start date of October 15, 2024, as a result of Powanda’s receipt of

credit for time served. See Order, 11/8/24, at unnumbered 1. Notably, while

before the court, Powanda did not raise any objection pertaining to the weight

of the evidence supporting the court’s revocation determination or to any

aspect of the revocation sentence.

Attorney Sabol filed a timely motion for reconsideration of Powanda’s

revocation sentence on the basis that Powanda “indicated [to her] that he

wanted such a motion filed because no personal questions were asked of him”

2 The Commonwealth identified the new criminal charges as follows: “DUI: controlled substance – impaired ability – 2nd offense[;] possession of a controlled substance[;] possession of drug paraphernalia[;]” and “driving without a license[.]” Motion to Revoke Probation, 10/30/24, at unnumbered 5 (unnecessary capitalization omitted). Powanda incurred these new charges “approximately [fifteen] days” after the start of his probationary sentence. N.T., 11/8/24, at 8.

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during the revocation hearing, “he believe[d] that no one listened to him[,]

that he was rushed through this hearing because the court had to hurry up for

bench warrant hearings at 11 a.m.[,]” and that the trial court “had been put

off by the defendant prior to him [who] had ‘whipped the middle fingers at the

court’ [and thus] affected the outcome of his hearing.” Motion to Reconsider

Sentence, 11/15/24, at unnumbered 2 (unnecessary capitalization omitted).

The motion for reconsideration of sentence did not assert any claim that the

trial court’s revocation determination was against the weight of the evidence.

The trial court held a hearing on the motion, during which defense

counsel read from a document that Powanda had provided to her, and in which

he asserted that: (1) this was his first ever probation violation; (2) he was

unaware that his probation had started when he incurred the new criminal

charges; (3) he had multiple medical conditions that prevented him from

reporting while on probation; (4) he had custody of his children; and (5) he

was a caregiver to his mother and stepfather, who were battling cancer and

Parkinson’s disease respectively. Again, Powanda did not raise any oral

challenge to the weight of the evidence supporting the trial court’s revocation

determination. At the conclusion of the hearing, the trial court denied

Powanda’s motion for reconsideration. Powanda filed a timely notice of

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appeal,3 and the trial court ordered him to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Powanda then filed

a concise statement in which he raised a single claim of error; namely, that

the trial court’s revocation determination was against the weight of the

evidence. The trial court thereafter authored an opinion pursuant to Rule

1925(a). In this Court, Attorney Sabol has filed a petition to withdraw and an

Anders brief. Powanda did not respond to the petition or the Anders brief.

Before we may address the merits of the issues raised in the Anders

brief, we must first assess the petition to withdraw from representation to

determine whether it meets certain procedural requirements. See

3 Because the trial court imposed Powanda’s revocation sentence via a sentencing order filed on November 8, 2024, the thirty-day period for filing a timely notice of appeal expired on December 9, 2024. See Pa.R.A.P. 903(a) (providing that “the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken”); see also Pa.R.Crim.P. 708(E) (explaining that the filing of a motion to modify a revocation sentence will not toll the thirty-day appeal period). Here, the docket indicates that Powanda did not file his notice of appeal until December 17, 2024, after the thirty-day appeal deadline had expired. However, we note that when the trial court issued its order denying Powanda’s motion for reconsideration, a breakdown occurred where the order did not advise Powanda of his time remaining to file a notice of appeal, as it instead erroneously indicated that he had thirty days from the order to do so. See Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007) (holding that the trial court’s failure to advise the appellant of the time remaining to file a notice of appeal in its order denying his post-sentence motion, as required by Pa.R.Crim.P. 720(B)(4)(a), constituted a breakdown excusing his subsequent untimely appeal). Thus, we treat Powanda’s appeal as timely. See id.

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Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). An Anders brief that accompanies a request to withdraw 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.

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

also provide a copy of the Anders brief to the client, and a letter that advises

the client of the 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.” Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa.

Super. 2014) (citation omitted). If counsel has satisfied these requirements,

we then conduct “a full examination” of the record “to decide whether the case

is wholly frivolous.” Commonwealth v. Dempster, 187 A.3d 266, 271 (Pa.

Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).

Here, in the Anders brief, Attorney Sabol provided a procedural and

factual history of the case with citations to the record, discussed the issues

arguably supporting the appeal, and explained why she concluded that they

were frivolous. See Anders Brief at 5-8. Attorney Sabol also mailed a copy

of the Anders brief to Powanda, and in her cover letter advised him that he

could raise any additional issues before this Court pro se or with private

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counsel. See Application to Withdraw as Counsel, 3/26/25, at unnumbered

1-2. As Attorney Sabol has substantially complied with the requirements of

Anders and Santiago, we will conduct an independent review to determine

whether the appeal is frivolous.

In the Anders brief, Attorney Sabol identifies the following issues for

our review:

1. Whether the trial court’s finding that [Powanda] violated his terms of probation is contrary to the weight of the evidence.

2. Whether the sentence imposed by the trial court was unreasonably harsh and excessive.

Anders Brief at 4.

The first issue that Attorney Sabol identifies in the Anders brief presents

a challenge to the weight of the evidence. However, before we may review

the merits of this issue, we must first determine whether Powanda preserved

it for our review. A claim that a verdict is against the weight of the evidence

must be raised in a motion for a new trial either: (1) orally on the record,

before sentencing; (2) in a written presentence motion; or (3) in a post-

sentence motion. See Pa.R.Crim.P. 607(A). The failure by a defendant to

avail himself of the prescribed methods of presenting a weight claim to the

trial court results in a waiver of the issue on appeal. See Commonwealth

v. Wright, 846 A.2d 730, 737 (Pa. Super. 2004).

In the instant case, our review of the record reveals that Powanda did

not raise his weight of the evidence issue before the trial court, either orally

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on the record before sentencing, in a written presentence motion, or in a post-

sentence motion. See Pa.R.Crim.P. 607(A). Instead, he raised it for the first

time in his Rule 1925(b) concise statement, which is insufficient to preserve

it for appellate review. See Commonwealth v. Sherwood, 982 A.2d 483

(Pa. 2009) (holding that the appellant’s inclusion of an issue challenging the

weight of the evidence in his Rule 1925(b) statement did not preserve his

weight of the evidence claim for appellate review in the absence of an earlier

motion); see also Pa.R.A.P. 302(a) (providing that issues not raised in the

trial court are waived and cannot be raised for the first time on appeal). Thus,

because Powanda failed to preserve his weight challenge for our review, it is

waived.

The second issue that Attorney Sabol identifies in the Anders brief

presents a challenge to the discretionary aspects of Powanda’s sentence.

Once more, however, we must determine whether Powanda preserved this

issue for our review. Pertinently, when a trial court directs a defendant to file

a concise statement of matters complained of on appeal pursuant to Rule

1925(b), any issues not raised in that statement are waived. See Pa.R.A.P.

1925(b)(4)(vii) (providing that “[i]ssues not included in the [concise

s]tatement . . . are waived”); see also Commonwealth v. Lord, 719 A.2d

306, 308 (Pa. 1998) (holding that “[a]ppellants must comply whenever the

trial court orders them to file a Statement of [Errors] Complained of on Appeal

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pursuant to Rule 1925[, and a]ny issues not raised in a 1925(b) statement

will be deemed waived”).

Here, although Powanda complied with the trial court’s Rule 1925(b)

order by filing a concise statement, he did not therein raise a challenge to the

discretionary aspects of his sentence. Accordingly, Powanda’s failure to

include this challenge within his Rule 1925(b) concise statement requires us

to conclude that his second issue is also waived. See Pa.R.A.P.

1925(b)(4)(vii); see also Lord, 719 A.2d at 308.

However, before we may grant Attorney Sabol’s petition to withdraw

and subsequently dispose of Powanda’s appeal, we must first conduct an

independent review of the record to determine whether defense counsel might

have overlooked any meritorious issues. See Dempster, 187 A.3d at 271.

Pertinently, when the trial court imposed Powanda’s revocation sentence

on November 8, 2024, his sentence was subject to the version of 42 Pa.C.S.A.

§ 9771(c) amended by Act 44 of 2023 (“Act 44”). See Act of Dec. 14, 2023,

P.L. 381, No. 44 (effective June 11, 2024). In Act 44, our legislature imposed

certain restrictions on a court’s ability to resentence an individual in violation

of their probation to total confinement. See 42 Pa.C.S.A. § 9771(c). These

amendments included “a presumption against total confinement for technical

violations of probation[,]” as well as a list of scenarios whereby a “court may

impose a sentence of total confinement upon revocation[.]” 42 Pa.C.S.A. §

9771(c)(1). Briefly, these scenarios included a finding that: (1) “the

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defendant has been convicted of another crime[;]” (2) there is “clear and

convincing evidence that the defendant committed a technical violation that

involves an identifiable threat to public safety and . . . cannot be safely

diverted from confinement through less restrictive means;” or (3) the

defendant committed a certain type of technical violation, as further

enumerated within the statute. 42 Pa.C.S.A. § 9771(c)(1)(i)-(iii) (emphasis

added). Crucially, the statute goes on to clarify that where “a court imposes

a sentence of total confinement following a revocation, the basis of which is

one or more technical violations[,]” a court may only impose “a maximum

period of [fourteen] days[’]” confinement as a result of a defendant’s “first

technical violation[.]” 42 Pa.C.S.A. § 9771(c)(2)(i).

Here, the Commonwealth moved to revoke Powanda’s probation as a

result of, inter alia, his incurrence of new criminal charges and his failure to

adhere to the technical requirements of his probation. However, at the time

of Powanda’s revocation hearing, Powanda had not yet been convicted of any

of these criminal charges. Thus, when the trial court revoked Powanda’s

probation at the conclusion of the hearing, it could have only done so as a

result of his technical violations. As such, to the extent that this was

Powanda’s first technical violation and his technical violations satisfied the

requirements of section 9711(c)(1)(ii) or (iii), his revocation sentence would

have been statutorily limited to a maximum prison term of fourteen days. See

42 Pa.C.S.A. § 9771(c)(2)(i). Accordingly, Powanda’s revocation sentence of

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six to twelve months in prison exceeded the fourteen-day maximum period of

total confinement permitted by section 9771(c)(2)(i).

Attorney Sabol did not raise this issue in her March 2025 Anders brief;

thus, we conclude that she overlooked it. See Dempster, 187 A.3d at 271.

Notably, in May 2025, a panel of this Court held that the question of whether

a trial court fails to comply with the amended version of section 9771(c) is an

issue implicating the discretionary aspects of sentencing, which must be

preserved by raising the issue at sentencing or in a post-sentence motion.

See Commonwealth v. Slaughter, 339 A.3d 456, 464 (Pa. Super. 2025).4

However, an en banc panel of this Court recently overruled this holding in

Slaughter, ruling instead that a claim that the trial court failed to adhere to

section 9771(c) when resentencing a probationer to a period of total

confinement implicates a sentence’s legality, which cannot be waived. See

Commonwealth v. Seals, 2026 WL 739101, 2026 Pa. Super. LEXIS 82 (Pa.

Super. 2026) (en banc).

Given that the question of whether the trial court imposed an illegal

sentence in violation of section 9771(c) could be raised by Powanda for the

first time in this direct appeal from his revocation sentence, this Court would

ordinarily resolve the matter by directing Attorney Sabol to file an advocate’s

4 Under Slaughter, Attorney Sabol could not have included this issue in her

Anders brief, as Powanda did not preserve any discretionary sentencing claim that the trial court violated section 9771(c) by raising the issue at sentencing or in a post-sentence motion.

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brief with respect to this issue. However, Powanda finished serving his

sentence during the pendency of this appeal.5 Accordingly, any such directive

would be futile, as the issue is now moot. See Commonwealth v. King, 786

A.2d 993, 996 (Pa. Super. 2001) (holding that any “challenge to the legality

of [a] sentence, which has expired and which bears no collateral civil or

criminal consequences, is moot and will not be addressed by this Court”); see

also Commonwealth v. Schmohl, 975 A.2d 1144, 1149 (Pa. Super. 2009)

(same); see also Commonwealth v. Nava, 966 A.2d 630, 633 (Pa. Super.

2009) (explaining that “[a]n issue before a court is moot if in ruling upon the

issue the court cannot enter an order that has any legal force or effect”).6

Thus, because there is no form of relief that we could grant Powanda on this

issue that would have any present legal force or effect, we decline to take any

5 As explained supra, the trial court set the effective date of Powanda’s six-

to-twelve-month revocation sentence as October 25, 2024. Thus, he would have completed serving this sentence, either in prison or while on parole, on October 25, 2025.

6 There is no indication in the record that Powanda could apply any credit for

the time he served to another sentence, nor is there any indication that his completion of the revocation sentence in question could result in any other collateral civil or criminal consequence. See King, 786 A.2d at 996; see also Schmohl, 975 A.2d at 1149; cf. Commonwealth v. Adams, 504 A.2d 1264, 1271 (Pa. Super. 1986) (en banc) (holding appellant’s meritorious challenge to the legality of his sentence was not moot despite its having expired at the time of appeal, as the sentence had “direct criminal consequences” in the form of potential “credit for the time served on [the] illegal sentence” with respect to a remaining consecutive sentence).

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further action on this matter. See Nava, 966 A.2d at 633; see also King,

786 A.2d at 996; Schmohl, 975 A.2d at 1149.

Consequently, as our independent review of the record discloses no

further meritorious issues that counsel might have missed, and because we

determined previously that both of Powanda’s issues on appeal are waived,

we grant Attorney Sabol’s petition to withdraw and affirm Powanda’s judgment

of sentence. See Dempster, 187 A.3d at 271.

Petition to withdraw granted. Judgment of sentence affirmed.

Judge Murray joins the memorandum.

Judge Olson concurs in result.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 4/22/2026

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