J-S46020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD BROWN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 454 EDA 2019

Appeal from the Judgment of Sentence Entered January 8, 2019

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0002746-2016

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED OCTOBER 22, 2019

Appellant, Richard Brown, appeals from the judgment of sentence 

entered on January 8, 2019. On appeal, Appellant's court-appointed counsel 

filed both a petition to withdraw as counsel and an accompanying brief 

pursuant to Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) and 

Anders v. California, 386 U.S. 738 (1967). We conclude that Appellant’s 

counsel has complied with the procedural requirements necessary to 

withdraw. Moreover, after independently reviewing the record, we conclude 

that the instant appeal is wholly frivolous. We, therefore, grant counsel’s 

petition for leave to withdraw and affirm Appellant’s judgment of sentence.

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* Retired Senior Judge assigned to the Superior Court.
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On June 8, 2017, Appellant pleaded guilty to retail theft;

1

that day, the 

trial court sentenced Appellant to serve two years of probation. In March and 

April of 2018, Appellant was arrested on new charges: two counts of retail 

theft and one count of possessing an instrument of crime (“PIC”). Appellant

pleaded guilty to these new charges on November 20, 2018. See Docket 

Entries at CP-23-CR-0002059-2018 and CP-23-CR-0002064-2018.

As a result of these new convictions, the trial court held a violation of 

probation and re-sentencing hearing on January 8, 2019. Following the 

hearing, the trial court found Appellant in violation of his probation and 

re-sentenced Appellant to serve a term of 12 to 36 months in prison for the 

underlying retail theft conviction. N.T. VOP Hearing, 1/8/19, at 29-30. 

On January 15, 2019, while Appellant was still represented by counsel, 

Appellant filed a pro se motion, which declared:

Hon[orable trial court judge,]

I have 10 days to appeal your sent[ence] of 1 to 3 years[.]

I am requesting Your [Honor] if possible that I be appointed 

a lawyer to represent me in this appeal.

So for the record[] . . . I am on record to appeal!

Please Your Honor if it’s OK with your office I be appointed a 

(lawyer) because a part of my appeal is I feel the public 

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1 18 Pa.C.S.A. § 3929(a)(1).
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defender[’s] office never spoke to me, never gave me 

paperwork. My [Gagnon II2] hearing I feel was illegal.

So please I am appealing this sent[ence].

Appellant’s Pro Se Motion, 1/15/19, at 1-2 (some emphasis omitted).

There is no evidence that the clerk of courts complied with Pennsylvania

Rule of Criminal Procedure 576(A)(4), which declares:

(4) In any case in which a defendant is represented by an 

attorney, if the defendant submits for filing a written motion, 

notice, or document that has not been signed by the 

defendant's attorney, the clerk of courts shall accept it for 

filing, time stamp it with the date of receipt and make a 

docket entry reflecting the date of receipt, and place the 

document in the criminal case file. A copy of the time 

stamped document shall be forwarded to the defendant's 

attorney and the attorney for the Commonwealth within 10 

days of receipt.

Pa.R.Crim.P. 576(A)(4).

Further, the trial court erroneously accepted Appellant’s pro se motion, 

considered it a “motion for reconsideration” of the sentence, and then 

scheduled a February 12, 2019 hearing on the motion. Trial Court Order, 

1/17/19, at 1; see Commonwealth v. Reid, 117 A.3d 777, 781 n.8 (Pa. 

Super. 2015) (holding: the defendant’s pro se post-sentence motion, which 

he filed while represented by counsel, was a legal nullity); see also

Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (“there is no 

constitutional right to hybrid representation either at trial or on appeal”); 

Commonwealth v. Ruiz, 131 A.3d 54, 56 n.4 (Pa. Super. 2015) (the 

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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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defendant's “pro se motion to modify sentence . . . was a legal nullity . . . 

[because] he was represented by counsel” at the time). As an additional 

oddity, the scheduled, February 12, 2019 hearing date was beyond the time 

our rules gave Appellant to file a timely notice of appeal and the trial court to 

reconsider its sentence. See Pa.R.A.P. 903(a) (generally requiring that a 

notice of appeal be filed “within 30 days after the entry of the order from 

which the appeal is taken”); 42 Pa.C.S.A. § 5505 (declaring that, generally, a 

court “may modify or rescind any order within 30 days after its entry . . . if no 

appeal from such order has been taken or allowed”); see also Pa.R.Crim.P. 

708(E) (“[a] motion to modify a sentence imposed after a revocation shall be 

filed within 10 days of the date of imposition. The filing of a motion to modify 

sentence will not toll the 30-day appeal period”).

On February 6, 2019, Appellant’s counsel filed a timely notice of appeal 

in the case.

3

 On appeal, Appellant’s court-appointed counsel filed a petition 

for leave to withdraw and counsel accompanied this petition with an Anders

brief. The Anders brief raises one claim:

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3 On February 26, 2019, the trial court held a hearing on Appellant’s pro se

“motion for reconsideration” of his sentence. This hearing occurred after 

Appellant’s counsel filed a timely notice of appeal in the case and well-beyond 

the 30 days that 42 Pa.C.S.A. § 5505 allows for modification of an order. See

Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (explaining: 

Section 5505 “allows a trial court to modify or rescind an order within thirty 

days of entry of that order, unless an appeal has been taken removing the 

case from the trial court's jurisdiction”). The trial court then entered an order 

on February 27, 2019, declaring that it was denying Appellant’s “motion for 

reconsideration;” nevertheless, at the time the trial court entered its order, it

did not have jurisdiction to modify Appellant’s sentence. 
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Whether the term of incarceration imposed herein is harsh 

and excessive under the circumstances due to [Appellant’s] 

mental illness and post-traumatic stress disorder and its 

potential to lengthen his term of incarceration consecutive to 

his federal sentence[?]

Appellant’s Brief at 3.

Before reviewing the merits of this appeal, this Court must first 

determine whether appointed counsel has fulfilled the necessary procedural 

requirements for withdrawing as counsel. Commonwealth v. Miller, 715 

A.2d 1203, 1207 (Pa. Super. 1998).

To withdraw under Anders, court-appointed counsel must satisfy 

certain technical requirements. First, counsel must “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.” 

Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which 

counsel:

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

with citations to the record; (2) refer[s] to anything in the 

record that counsel believes arguably supports the appeal; 

(3) set[s] forth counsel’s conclusion that the appeal is 

frivolous; and (4) state[s] 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.

Finally, counsel must furnish a copy of the Anders brief to his or her 

client and advise the client “of [the client’s] right to retain new counsel, 
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proceed pro se or raise any additional points worthy of this Court’s attention.” 

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). 

If counsel meets all of the above obligations, “it then becomes the 

responsibility of the reviewing court to make a full examination of the 

proceedings and make an independent judgment to decide whether the appeal 

is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also 

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

(holding that the Anders procedure requires this Court to review “the entire 

record with consideration first of [the] issues raised by counsel. . . . [T]his 

review does not require this Court to act as counsel or otherwise advocate on 

behalf of a party. Rather, it requires us only to conduct a review of the record 

to ascertain if[,] on its face, there are non-frivolous issues that counsel, 

intentionally or not, missed or misstated. We need not analyze those issues 

of arguable merit; just identify them, deny the motion to withdraw, and order 

counsel to analyze them”). It is only when all of the procedural and 

substantive requirements are satisfied that counsel will be permitted to 

withdraw.

In the case at bar, counsel complied with all of the above procedural 

obligations. We must, therefore, review the entire record and analyze whether 

this appeal is, in fact, wholly frivolous. Our review begins with the claim 

Appellant raises in his brief.

On appeal, Appellant claims that the trial court abused its discretion by 

imposing a harsh and excessive sentence. Specifically, Appellant claims that 
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his sentence is excessive in light of a term of federal imprisonment that 

Appellant anticipated he would also be serving and in light of certain mitigating 

factors. Appellant’s Brief at 3. Appellant’s claims on appeal challenge the 

discretionary aspects of his sentence. 

“[S]entencing is a matter vested in the sound discretion of the 

sentencing judge, whose judgment will not be disturbed absent an abuse of 

discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 

2001). Moreover, pursuant to statute, Appellant does not have an automatic 

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. 

§ 9781(b). Instead, Appellant must petition this Court for permission to 

appeal the discretionary aspects of his sentence. Id.

As this Court explained:

[t]o reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 

903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

Pa.R.Crim.P. 720 [and 708]; (3) whether appellant’s brief has 

a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, [42 Pa.C.S.A.] 

§ 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

At the outset, Appellant’s discretionary aspect of sentencing claim is 

waived, as Appellant did not object to his sentence during the sentencing 

hearing and, following sentencing, Appellant’s counsel did not file a 

Pennsylvania Rule of Criminal Procedure 708(E) motion to modify Appellant’s
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sentence. Ruiz, 131 A.3d at 56 n.4 (the defendant's “pro se motion to modify 

sentence . . . was a legal nullity . . . [because] he was represented by counsel” 

at the time); see also Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super.

2007); Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) 

(“when a court revokes probation and imposes a new sentence, a criminal 

defendant needs to preserve challenges to the discretionary aspects of that 

sentence either by objecting during the revocation sentencing or by filing a 

post-sentence motion”). Further, since the claim on appeal is waived, the 

claim is frivolous under Anders. Commonwealth v. Tukhi, 149 A.3d 881, 

888-889 (Pa. Super. 2016) (holding that, under Anders, “[a]n issue that is 

waived is frivolous”); Commonwealth v. Kalichak, 943 A.3d 285, 291 (Pa. 

Super. 2008) (holding: “this issue has been waived. Having been waived, 

pursuing this matter on direct appeal is frivolous”).

Moreover, even if we consider Appellant’s discretionary aspect of 

sentencing claim on the merits (due to the breakdown in the court system in 

failing to forward Appellant’s pro se motion to modify his sentence to counsel),

the claim would still be frivolous. 

Since Appellant was sentenced following the revocation of probation, the 

sentencing guidelines do not apply to Appellant's sentence. 204 Pa.Code 

§ 303.1(b); Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super.

2006). Nevertheless, in sentencing Appellant, the trial court was required to 

“consider the general principles and standards of the Sentencing Code.”
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Commonwealth v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 

9721 expresses these general principles in the following manner:

the sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of the 

offense as it relates to the impact on the life of the victim and 

on the community, and the rehabilitative needs of the 

defendant.

42 Pa.C.S.A. § 9721(b). 

Further, as we have held:

In addition to issuing a sentence that is “consistent with the 

protection of the public, the gravity of the offense as it relates 

to the impact on the life of the victim and on the community, 

and the rehabilitative needs of the defendant,” a [violation of 

probation (“VOP”)] court must also consider, for example, 

whether the sentence imposed is “essential to vindicate the 

authority of the court,” and must give “due consideration . . 

. to the time spent serving the order of probation.”

Commonwealth v. Derry, 150 A.3d 987, 994 (Pa. Super. 2016) (corrections 

omitted), quoting 42 Pa.C.S.A. §§ 9721(b) and 9771.

“The determination of whether a particular case raises a substantial 

question is to be evaluated on a case-by-case basis. Generally, however, in 

order to establish that there is a substantial question, the appellant must show 

actions by the sentencing court inconsistent with the Sentencing Code or 

contrary to the fundamental norms underlying the sentencing process.” 

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal 

citations omitted). “When considering the merits of a discretionary aspects of 

sentencing claim, we analyze the sentencing court's decision under an abuse 

of discretion standard.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. 
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Super. 2015). “An abuse of discretion is more than just an error of judgment 

and, on appeal, a trial court will not be found to have abused its discretion 

unless the record discloses that the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill-will.” 

Commonwealth v. Lane, 424 A.2d 1325, 1328 (Pa. 1981) (quotations 

omitted).

On appeal, Appellant claims that his sentence is excessive in light of a 

term of federal imprisonment that Appellant anticipated he would also be 

serving and in light of certain mitigating factors. Appellant’s Brief at 3. These 

claims are frivolous.

During the re-sentencing hearing, Appellant alerted the trial court to the 

fact that he was also serving three years of federal, supervised release for 

bank robbery. Appellant anticipated that he would “go back [to federal prison] 

to serve the remainder of the three years based on the violation.” N.T. VOP 

Hearing, 1/8/19, at 4-5. The Commonwealth responded: “I have spoken a 

couple of different times to [Appellant’s] federal probation officer. They're not 

sure what action the [j]udge is going to take in federal court for the violations.” 

Id. at 5. 

In sentencing Appellant, the trial court noted that it could not bind the 

federal court to any particular sentence. Id. at 30. However, the trial court 

declared: “I have no idea what your federal [judge] is going to do. . . . [O]n 

the sheet I would recommend that . . . my sentence run concurrent to any 
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federal sentences imposed. That’s my recommendation. I can’t make the 

[federal j]udge do it.” Id. at 29-30.

In light of the fact that the trial court recommended its sentence run 

concurrent to any federal sentence Appellant would receive, Appellant’s claim 

on appeal – that his sentence is excessive because of “its potential to lengthen 

his term of incarceration consecutive to his federal sentence” – does not raise 

a substantial question under the Sentencing Code and is frivolous under 

Anders. See Appellant’s Brief at 3. Simply stated, the trial court 

recommended that Appellant’s sentence run concurrent – not consecutive –

to any federal sentence Appellant were to receive.

Appellant also claims that, in imposing his sentence, the trial court failed 

to consider the mitigating factors of his “mental illness and post-traumatic 

stress disorder.” Id. This Court has held that “an excessive sentence claim 

– in conjunction with an assertion that the court failed to consider mitigating 

factors – raises a substantial question.” Commonwealth v. Swope, 123 

A.3d 333, 339 (Pa. Super. 2015) (citations omitted), citing Commonwealth 

v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014); see also Commonwealth 

v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (same). 

Nevertheless, Appellant’s claim is frivolous because, during the re-sentencing

hearing, the trial court demonstrated it was well aware of – and thoroughly 

considered – Appellant’s mental health issues and PTSD. See N.T. VOP 

Hearing, 1/8/19, at 24-25 (Appellant explaining his mental health issues); 

26-27 (the Commonwealth explaining Appellant’s mental health issues and 
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PTSD); see also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)

(“[i]t would be foolish, indeed, to take the position that if a court is in 

possession of the facts, it will fail to apply them to the case at hand”).

Therefore, we conclude that the trial court did not abuse its discretion 

when it sentenced Appellant to serve a term of 12 to 36 months in prison and 

that Appellant’s claim to the contrary is frivolous.

We independently considered the issues raised within Appellant’s brief 

and we determined that the claims are frivolous. In addition, after an 

independent review of the entire record, we see nothing that might arguably 

support this appeal. The appeal is therefore wholly frivolous. Accordingly, we 

affirm Appellant’s judgment of sentence and grant counsel’s petition for leave 

to withdraw.

Petition for leave to withdraw appearance granted. Judgment of 

sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/19