J-S02022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARIANO OLIVO

Appellant No. 1002 EDA 2015

Appeal from the Judgment of Sentence March 3, 2015

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0003012-2009

BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.: FILED JANUARY 12, 2016

After Defendant Mariano Olivo repeatedly violated his parole and 

probation, he was re-sentenced to 6-12 months’ incarceration. Olivo now 

appeals from his judgment of sentence entered in the Court of Common 

Pleas of Lehigh County. Counsel has filed a petition to withdraw on appeal, 

pursuant to Anders v. California, 386 U.S. 738 (1967). After careful 

review, we grant counsel’s request to withdraw and affirm Olivo’s judgment 

of sentence.

Olivo originally pled guilty to one count of possession of a controlled 

substance and two counts of endangering the welfare of a child in 

September 2009; he was sentenced to 5 years of probation. From March 

2011 through December 2014, Olivo continuously violated his probation and 

parole. Most recently, in March 2015, Olivo violated his probation and was 
J-S02022-16

- 2 -

resentenced to 6-12 months’ incarceration which was to run consecutively to 

a 4-8 year burglary sentence that he has been serving since February 2015. 

Olivo filed an unsuccessful motion for reconsideration. This timely appeal 

follows.

On appeal, Olivo presents the following question for our review:

Whether the lower court abused its sentencing 

discretion[1] when, after determination [sic] that the 

defendant had violated his probation, the court sentenced 

him to [a] consecutive term of imprisonment in a state 

correctional institution?[2]

In order for counsel to withdraw from an appeal pursuant to Anders, 

certain requirements must be met, and counsel must: 

(1) provide a summary of the procedural history and facts, 

with citations to the record;

____________________________________________

1 Under Pennsylvania law, 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.” Commonwealth v. 

Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (quoting Commonwealth 

v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005)). An abuse of discretion 

requires more than the showing of a mere error in judgment; rather, an 

appellant must demonstrate that the trial court was “manifestly 

unreasonable” or exercised judgment that was the result of “partiality, 

prejudice, bias, or ill-will.” Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. 

Super. 2002).

2 Counsel’s brief also lists as an issue “[m]ay appointed counsel be permitted 

to withdraw after a conscientious review of the issues and the facts pursuant 

to the Anders case?” Because this inquiry is mandated when our Court is 

faced with a petition to withdraw, we have not listed it as a separate issue 

above.
J-S02022-16

- 3 -

(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. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing 

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

Our review of counsel’s application to withdraw, supporting 

documentation, and Anders brief reveal that counsel has complied with the 

requirements set forth in Daniels and Santiago. Counsel has also 

furnished a copy of the brief to Olivo, advising him of his right to proceed 

pro se or raise any additional points that he deems worthy of the court’s 

attention. Accordingly, we will now turn to the issue counsel stated arguably 

supports the appeal. 

Olivo claims that the court abused its discretion by sentencing him to a 

consecutive, rather than a concurrent, sentence which results in him having 

to serve time in a state correctional facility, rather than a county jail. Olivo’s 

issue raises a discretionary aspect of sentencing claim. It is well settled that 

there is no absolute right to appeal the discretionary aspects of a sentence. 

Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002). To challenge the 

discretionary aspects of a sentence, the defendant must first raise that claim 

at the sentencing hearing or in a post-sentence motion. Pa.R.A.P. 302; 

Commonwealth v. Dodge, 859 A.2d 771 (Pa. Super. 2004). Next, the 
J-S02022-16

- 4 -

defendant must “set forth in his brief a concise statement of the reasons 

relied upon for allowance of appeal with respect to the discretionary aspects 

of a sentence.” Pa.R.A.P. 2119(f); Commonwealth v. Tuludziecki, 522 

A.2d 17, 19 (Pa. 1987). Finally, a defendant must also demonstrate a 

substantial question by setting forth “a plausible argument that the sentence 

violates a particular provision of the Sentencing Code or is contrary to the 

fundamental norms underlying the sentencing process.” Commonwealth 

v. Moore, 617 A.2d 8, 11 (Pa. Super. 1992). 

Instantly, Olivo raised his discretionary aspect of sentencing claim by 

including it in his motion to modify sentence; therefore, he has complied 

with Rule 302 and Dodge. However, we note that, generally, a trial court’s 

exercise of discretion in imposing consecutive as opposed to concurrent 

sentences is not viewed as raising a substantial question that would allow 

the granting of allowance of appeal. Commonwealth v. Marts, 889 A.2d 

608 (Pa. Super. 2005). In fact, only in extreme cases where the imposition 

of consecutive sentences amounts to an aggregate sentence that is unduly 

harsh will such an issue be considered to raise a substantial question. 

Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010).

Here, Olivo’s aggregate sentence, when viewed in the context of the 

entire history of his criminal transgressions, is not so unduly harsh that we 

find he has raised a substantial question on appeal. However, even if we did 

find that it raised a substantial question, we do not believe that the trial 

court’s sentence was an abuse of discretion. Ferguson, supra. Upon 
J-S02022-16

- 5 -

sentencing following a revocation of probation, the court is limited only by 

the maximum sentence that it could have originally imposed. 

Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. Super. 2001). 

Moreover, once probation is revoked, a sentence of total confinement may 

be imposed if any of the following conditions exist: the defendant has been 

convicted of another crime; the conduct of the defendant indicates that it is 

likely that he will commit another crime if he is not imprisoned; or, such a 

sentence is essential to vindicate the authority of the court. 42 Pa.C.S. § 

9711(c). 

In the present case, there is no question that the court was justified in 

making Olivo’s probationary sentence consecutive to his prior burglary 

sentence. As the trial court recognizes, this was Olivo’s third probation 

violation. Moreover, by serving his sentence in a state correctional 

institution, it is more likely that Olivo will receive proper treatment for his 

recurring drug problems, which, in turn, may reduce the likelihood of his 

reoffending. 

Judgment of sentence affirmed. Petition to withdraw granted. 

Jurisdiction relinquished.
J-S02022-16

- 6 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2016