J-A07023-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARIO ESTEBAN AYALA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 876 MDA 2023

Appeal from the Judgment of Sentence Entered May 18, 2023

In the Court of Common Pleas of Berks County 

Criminal Division at No(s): CP-06-CR-0001128-2020

BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SULLIVAN, J.: FILED: MAY 31, 2024

Mario Esteban Ayala (“Ayala”) appeals from the judgment of sentence 

imposed following the revocation of his probation. Additionally, Ayala’s 

counsel (“Counsel”) has filed a motion 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). Upon review, we 

grant Counsel’s motion to withdraw and affirm the judgment of sentence.

In July 2021, Ayala pleaded guilty to one count each of indecent assault 

and corruption of minors.1 The charges arose from Ayala’s sexual assault of 

his girlfriend’s four-year-old daughter. The trial court subsequently found 

Ayala to be a sexually violent predator (“SVP”) and sentenced him to fifteen 

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* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 3126(a)(7) and 6301(a)(1)(i).
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to thirty-six months of incarceration to be followed by four years of probation. 

The trial court gave Ayala credit for seven hundred eighty-five days of time 

served.

In January 2023, Ayala was placed on probation and signed his 

conditions of probation, as well as special sex offender conditions of probation. 

See N.T., 5/18/23, at 4; Commonwealth’s Brief at 3 n. 1. In March 2023, 

Ayala tested positive for cocaine and admitted to using alcohol, both violations 

of his probation. See N.T., 5/18/23, at 4. Ayala’s State Probation Agent,

Mike Balatincz (“Agent Balatincz”), also found pornography on Ayala’s cell 

phone in violation of his sex offender probation conditions. See id. at 5. 

Lastly, despite Agent Balatincz’s warning to Ayala to stop communicating with 

the victim’s mother, Ayala continued to do so. See id.

At his violation of probation hearing in May 2023, Ayala admitted to 

violating his probation. After hearing testimony from Berks County Adult 

Probation Officer Tayris Munoz (“Officer Munoz”) and Agent Balatincz, as well 

as statements from the Commonwealth, Counsel, and Ayala, the 

violation-of-probation court sentenced Ayala, in accordance with Officer 

Munoz’s recommendation, to eighteen to forty-eight months of incarceration,

to be followed by four years of probation. Ayala filed a post-sentence motion, 

which the court denied. The instant appeal followed.

In response to the trial court’s order for a Pa.R.A.P. 1925 concise

statement, Counsel submitted a statement of intent to file an Anders brief
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pursuant to Pa.R.A.P. 1925(c)(4). The violation-of-probation court issued a

statement in lieu of an opinion stating because of Counsel’s intent to file an

Anders brief, it “respectfully request[ed Ayala’s] appeal be denied.” 

Statement in Lieu of Opinion, 7/20/23, at 2 (unnumbered). Counsel 

subsequently filed an Anders brief in this Court, asserting Ayala’s appeal is 

frivolous and requesting permission to withdraw from representation. Ayala 

has not filed a response.

We first address Counsel’s application to withdraw. See 

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (“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.”). Before 

being permitted to withdraw pursuant to Anders, counsel must satisfy certain

procedural and substantive requirements. Commonwealth v. Tejada, 176

A.3d 355, 358 (Pa. Super. 2017). Procedurally, counsel must:

1) petition the court for leave to withdraw stating that, after

making a conscientious examination of the record, counsel has

determined that the appeal would be frivolous; 2) furnish a copy

of the [Anders] brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel or

raise additional arguments that the defendant deems worthy of

the court’s attention.

Id. at 359 (citation omitted). Substantively, counsel is required to file an 

Anders brief, in which 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 frivolous; and (4) state 
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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 has complied with Anders’s procedural and substantive 

requirements. Counsel states in his motion to withdraw he found Ayala’s issue 

to be frivolous after conducting a thorough review of the record. See Motion

to Withdraw as Counsel, 11/15/23, at 2 (unnumbered). Counsel attached to 

his application a copy of the letter he sent to Ayala, in which Counsel advised 

Ayala he could retain private counsel or proceed pro se. See id. at Ex. A; see 

also Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). 

Counsel also provided Ayala with a copy of the Anders brief, which 

summarizes the facts and procedural history, includes the issue that could 

arguably support Ayala’s appeal, and explains Counsel’s assessment of why 

the issue is frivolous. Accordingly, we review the issue presented in Counsel’s 

Anders brief. We also conduct an independent review of the record to 

determine whether Ayala’s appeal is in fact wholly frivolous. See Santiago, 

978 A.2d at 358; see also Commonwealth v. Dempster, 187 A.3d 266, 

272 (Pa. Super. 2018) (en banc) (“part and parcel of Anders is our Court’s 

duty to review the record to insure no issues of arguable merit have been 

missed or misstated.”).

Counsel’s Anders brief presents the following issue:
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Whether the [violation-of-probation] court abused its discretion 

by considering impermissible factors at sentencing and imposing 

an excessive sentence on [Ayala] when the sentence imposed is 

inconsistent with the protections of the public, the gravity of the 

offense, the impact on the victim, and the rehabilitative needs of 

[Ayala?]

Anders Brief at 8.

Ayala challenges the discretionary aspects of his sentence. See id. at 

17-23. “[I]t is within our 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). A challenge to the discretionary aspects of a sentence 

“must be considered a petition for permission to appeal.” Commonwealth v. 

Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citations and internal citation 

omitted). This Court must determine:

(1) whether the appeal is timely; (2) whether [the defendant] 

preserved [the] issue; (3) whether [the defendant’s] brief includes 

a concise statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of sentence; and 

(4) whether the concise statement raises a substantial question 

that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa. Super. 2013) 

(citation omitted). Only where an appellant has met all four elements of the 

test will we review a challenge to the discretionary aspects of sentence. An 

additional requirement for review of such a claim is that “issues challenging 

the 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 
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proceedings. Absent such efforts, an objection to a discretionary aspect of a 

sentence is waived.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. 

Super. 2013) (en banc) (citation omitted).

As noted above, Ayala timely appealed. His brief includes a Pa.R.A.P. 

2119(f) concise statement. See Anders Brief at 16. Regarding a substantial 

question, Ayala asserts the violation-of-probation court considered 

impermissible factors at sentencing, resulting in an excessive sentence. See 

id. at 17. Specifically, Ayala claims the court inappropriately considered 

statements from the Commonwealth regarding the plea negotiations in the 

underlying case and about Ayala’s prior conviction in another county. See id. 

at 20. This claim presents a substantial question. See Commonwealth v. 

Allen, 24 A.3d 1058, 1064-65 (Pa. Super. 2011) (“[A] claim that a sentence 

is excessive because the trial court relied on an impermissible factor raises a 

substantial question.”). Finally, an appellant waives a challenge to the 

discretionary aspects of sentence not raised in a post-sentence motion and

may not raise it for the first time on appeal. See Commonwealth v. 

Bradley, 237 A.3d 1131, 1138-39 (Pa. Super. 2020) (claim waived where not 

specifically raised in post-sentence motion); see also Pa.R.A.P. 302(a). 

Although Ayala filed a timely post-sentence motion, he argued only that 

the Commonwealth incorrectly claimed he was in violation of his probation by 

being in contact with the victim’s mother when his plea agreement allowed for 
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such contact; he did not assert the trial court’s reliance on an impermissible 

sentencing factor. See Post-Sentence Motion, 5/24/23, at 3 (unnumbered).

An appellant waives a challenge to the discretionary aspects of sentence

not raised in a post-sentence motion and may not raise it for the first time on 

appeal. See Bradley, 237 A.3d at 1138-39 (claim waived where not 

specifically raised in post-sentence motion); see also Pa.R.A.P. 302(a). Here, 

because Ayala did not raise the specific “impermissible factor” challenge he 

raises in the instant appeal in his post-sentence motion, he waived it, 

precluding review.

Even if Ayala had preserved his issue, however, it would be frivolous. 

Our standard of review of a discretionary sentencing claim is well-established:

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. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

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. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 2022) (citation 

omitted).

Upon revoking probation, a sentencing court may choose from any of 

the sentencing options that existed at the time of the original sentencing, 

including incarceration. See 42 Pa.C.S.A. § 9771(b). “[U]pon revocation [of 

probation] . . . the trial court is limited only by the maximum sentence that it 

could have imposed originally at the time of the probationary sentence.” 
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Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal 

quotation marks and citations omitted). However, 42 Pa.C.S.A. § 9771(c) 

provides that once probation has been revoked, a sentence of total 

confinement may only be imposed if any of the following conditions exist:

(1) the defendant has been convicted of another crime; or

(2) the conduct of the defendant indicates that it is likely that he 

will commit another crime if he is not imprisoned; or

(3) such a sentence is essential to vindicate the authority of the 

court.

42 Pa.C.S.A. § 9771(c). 

Here, the record demonstrates the court considered the testimony of 

Officer Munoz and Agent Balatincz, Ayala’s admissions and statement, and the 

arguments of counsel in imposing Ayala’s sentence. See N.T., 5/18/23, at 

10. Despite being on probation for two months, Ayala used drugs and alcohol, 

downloaded pornography to his phone, and remained in contact with the 

mother of the victim, all violations of the conditions of his probation. Thus, a 

sentence to total confinement was necessary to vindicate the authority of the 

court. While the Commonwealth referenced the underlying plea negotiations 

and Ayala’s prior conviction in another county, the violation-of-probation court 

never mentioned them in sentencing, and we see nothing of record to support 

Ayala’s claim the court relied upon those statements in imposing the sentence 

requested by Officer Munoz. See id. at 3, 5-6, 10-11. Thus, even if not 

waived, Ayala’s discretionary aspects of sentence claim would not merit relief. 
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See, e.g., Commonwealth v. Raven, 97 A.3d 1244, 1254-55 (Pa. Super. 

2014) (defendant’s sentences were neither unreasonable nor excessive where 

“record reflects that the [sentencing] court carefully considered all of the 

evidence presented at the sentencing hearing.”). 

Finally, our independent review of the record reveals no arguably 

meritorious issues Ayala could raise on appeal. See Dempster, 187 A.3d at

272. Accordingly, we grant Counsel’s application to withdraw and affirm 

Ayala’s judgment of sentence.

Application to withdraw from representation granted. Judgment of 

sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 5/31/2024