J-S35036- 14

* Retired Senior Judge assigned to the Superior Court

. NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee

v. MICHAEL WAYNE DERSHEM, JR., Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No.(s) 2291- 2294 MDA 2013 Appeal from the Judgment of Sentence October 10, 2013 , in the Court of Common Pleas of Union County Criminal Division at No(s): CP- 60

- CR -0000010-2013, CP

- 60

- CR -0000070-2011, CP- 60

- CR -0000071-2011,

CP

- 60

- CR -0000074-2011 BEFORE: DONOHUE, WECHT, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 17, 2014 Michael Wayne Dershem, Jr. (Appellant), appeals from the judgments of sentence which the trial court imposed after it revok ed Appellant’s intermediate punishment sentence. In addition, Appellant’s counsel has filed a petition to withdraw 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 petition to w ithdraw and affirm the judgments of sentence. As a result of several convictions, Appellant was particip ating in an intermediate punishment program. On June 25, 2013, the Commonwealth filed a motion to revoke Appellant’s intermediate pu nishment. The tri al court held a hearing on October 10, 2013. At that he aring, AppellantJ-S35036- 14

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admitted to violating conditions of his intermediate p unishment program. The court revoked Appellant’s intermediate punishment and sentenced him to an aggregate term of incarceration of 5 to 12 year s. Appellant timely filed a post-sentence motion to modi fy his sentence. After holding a hearing on that motion, the trial co urt denied it. Appellant timely filed a notice of appeal. The trial court dir ected Appellant to comply with Pa.R.A.P. 1925(b), and Appellant timely filed a Pa.R.A.P. 1925(b)
statement. 1 Appellant’s counsel subsequently filed in this Court a p etition to withdraw as counsel pursuant to Anders and Santiago , supra . On June 18, 2014, upon a finding that Appellant’s counsel had failed to comply with the requirements of Santiago , we denied counsel’s request to withdraw and remanded this case with instructions for counsel to file either an advocate’s brief or a proper Anders petition and brief. On July 17, 2014, counsel timely filed a second Anders brief and petition to withdraw as counsel. Attached to this petition was a certificate of se rvice indicating that counsel had served Appellant with a copy of his new peti tion to withdraw on July 17, 2014.

1 On December 13, 2013, the trial court entered a schedu ling order wherein it directed Appellant to comply with Pa.R.A.P. 1925(b ). The court’s order did not comply with Pa.R.A.P. 1925(b)(2) because it allowe d Appellant only 10 days to file a statement of errors complained of on ap peal, instead of a minimum of 21 days to file such a statement. Appellant filed his Pa.R.A.P. 1925(b) statement on J anuary 7, 2014, which is outside the time period allowed by the court’s order but within t he time period allowed by Pa.R.A.P. 1925(b)(2). We, t herefore, conclude that Appellant timely filed his Pa.R.A.P. 1925(b) stateme nt.J-S35036- 14

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As we previously stated, Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscienti ous examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along wi th any other issues necessary for the effective appellate present ation thereof.... Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the ap pellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention. Commonwealth v. Wrecks , 931 A.2d 717, 720-21 (Pa. Super. 2007) (citations omitted). Our Supreme Court has clarified portions of the Anders procedure: Accordingly, we hold that in the Anders brief that accompanies court- appointed counsel’s petition to withdraw, counsel must: (1) provide a summary of the procedural history and f acts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set fo rth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivol ous. Counsel should articulate the relevant facts of record, co ntrollin g case law, and/or statutes on point that have led to th e conclusion that the appeal is frivolous. Santiago , 978 A.2d at 361. When faced with a purported Anders brief, we may not review the merits of the underlying issues without first deciding w hether counsel has requested properly permission to withdraw. Commonwealth v. Wimbush , 951 A.2d 379, 382 (Pa. Super. 2008) (citation omitte d). If counsel has met these obligations, “it then becomes the responsibility of the reviewing courtJ-S35036- 14

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to make a full examination of the proceedings and mak e an independent judgment to decide whether the appeal is in fact whol ly frivolous.” Santiago , 978 A.2d at 354 n.5. We conclude that counsel has complied with the requireme nts outlined above. Counsel has filed a petition with this Court sta ting that after reviewing the record, he finds this appeal to be wholl y frivolous. Second Petition to Withdraw as Counsel, 7/17/2014, at 1. Cou nsel has filed a brief which includes summaries of the facts and procedural his tory of the case and

se ts forth one issue that he believes might arguably supp ort an appeal. Second Anders Brief at 15-19. Counsel’s brief sets forth his conclusion th at the appeal is frivolous and includes citation to releva nt authority. Id. at 16. Finally, counsel has attached to his petition the letter that he sent to Appellant, which enclosed counsel’s second petition and Anders brief and advised Appellant of his right to proceed pro se or with private counsel and to raise any additional issues that he deems worthy of this Co urt’s consideration. We therefore proceed to an independent review of th e record and the issue that counsel stated arguably supports an appeal. T he sole issue presented by counsel in the second Anders brief is a challenge to the discretionary aspects of Appellant’s sentence. Second Anders Brief at 16- 19.J-S35036- 14

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Preliminarily, we note that the rules for resentencin g a defendant following the revocation of an intermediate punishme nt sentence are analogous to that applicable to re-sentencing following probation revocation in that “[u]pon revocation ... the sentencing alternative s available to the court [are] the same as the alternatives available at t he time of initial sentencing.” 42 Pa.C.S. § 9773(b). Thus, in evaluating revocation of an intermediate punishment sentence, this Court applies th e same standard it applies when reviewing a sentence imposed after probati on revocation. See Commonwealth v. Edwards , 71 A.3d 323, 327 (Pa. Super. 2013), appeal denied , 81 A.3d 75 (Pa. 2013). It is well-established that [s]entencing is a matter vested in the sound discretion o f the sentencing judge, and a sentence will not be disturbed o n appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgme nt. 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, preju dice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Hyland , 875 A.2d 1175, 1184 (Pa. Super. 2005) (quoting Commonwealth v. Rodda , 723 A.2d 212, 214 (Pa. Super. 1999)). A criminal defendant does not have an absolute right t o challenge the discretionary aspects of his sentence on appeal. See Commonwealth v. Bishop , 831 A.2d 656, 660 (Pa. Super. 2003). Before this Court will consider such a claim, two preliminary requirements must be met:J-S35036- 14

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First, the appellant must set forth in his brief a conci se statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence. [Pa.R.A.P. 2119(f)]. Second, he must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. [42 Pa.C.S. § 9781(b)]. Id. (citations omitted). “The determination of whether a substantial question exists must be determined on a case- by

- case basis.” Commonwealth v. Hartman , 908 A.2d 316, 320 (Pa. Super. 2006) (citation omitted). This Court has explained that: “[a] substantial question exists where an appellant advances a colorable argument that the sentencing judge’s actions [were] either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id. (quoting Commonwealth v. Koren , 646 A.2d 1205, 1208-1209 (Pa. Super. 1994)). Finally, we note that issues challenging the d iscretionary aspects of sentence must be raised in a post-sentence motion or by p resenting the claim to the trial court during the sentencing proceedin gs. Commonwealth
v. Watson , 835 A.2d 786, 791 (Pa. Super. 2003). Absent such ef forts, an objection to a discretionary aspect of a sentence is waive d. Id. Instantly, Appellant filed a post-sentence motion challe nging the discretionary aspects of his sentence, and counsel has includ ed in his Anders brief a Rule 2119(f) statement. The remaining questi on, therefore, is whether Appellant has raised a substantial question for our review.J-S35036- 14

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In his Anders brief, counsel argues that, in imposing the five- to

twelve-year term of incarceration, the sentencing court failed to consider the “history and characteristics” of Appellant and the nature of his charges as required by 42 Pa.C.S. § 9725. Second Anders Brief at 15, 16-17. Additionally, Appellant contends that the trial court failed to consider the sentencing guidelines and the Commonwealth’s recommended guideline
sentence. Id. at 16- 17. We begin by noting that “[t]he sentencing guidelines do not apply to sentences imposed as a result of probation revocations....” Commonwealth v. Coolbaugh , 770 A.2d 788, 792 (Pa. Super. 2001). “[U]pon senten cing following a revocation of [intermediate punishment], the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the [intermediate punishment] sentence.” Commonwealth v. MacGregor , 912 A.2d 315, 317 (Pa. Super. 2006) (citation omit ted). Accordingly, we find that this issue does not raise a sub stantial question for
our review. However, this Court has recently reiterated that argu ments that the sentencing court altogether failed to consider relevant sentencing factors does present a substantial question. Commonwealth v. Dodge , 77 A.3d 1263, 1272 n. 8 (Pa. Super. 2013), appeal denied , 91 A.3d 161 (Pa. 2014). Although Appellant presents a substantial question, no r elief is due as the record belies his claim. Prior to sentencing, the trial court heard evidenceJ-S35036- 14

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of Appellant’s age, his drug and alcohol issues, his remorsefulness about the underlying violations that resulted in his removal fro m the drug court program, and his desire to return to the treatment pr ogram for a “second chance”. N.T., 10/10/2013, at 7 -11. The trial court noted that it had the opportunity to review the presentence investigation report prior to sentencing. Id. at 6. “Where the sentencing judge had the benefit of a presentence invest igation report, it will be presumed that he or she was aware of the relevant i nformation regarding the defendant's character and weighed those consideration s along with mitigating statutory factors.” Commonwealth v. Boyer , 856 A.2d 149, 154 (Pa. Super. 2004). Nonetheless, after hearing from th e district attorney, defense counsel, and Appel lant, the court rejected Appellant’s statements of remorse and set forth the following explanation of A ppellant’s sentence. The derogatory comments about a judge [which, along with his repeated violation of the GPS monitoring con ditions, destruction of the GPS monitoring device, failure to a ppear for scheduled counsel sessions, use of synthetic marijuana, and u se of alcohol, formed the basis for Appellant’s removal fr om the drug court program and revocation of his intermediate punishment sentence,] will not factor into my sentence at all. If that became a factor for a judge to consider in imposing sentence, there would be a lot of attorneys that woul d have to squirm. I understand from the treatment court perspecti ve it is a different situation because of the approach. In crimi nal court and the sentencing, it’s not a factor. There are a lo t of people that don’t like judges who put them in jail, so that’ s not a factor. As far as revising the treatment court program, that i s not for me to decide. The decision has been made by the t reatment court team. It is not my place to second guess their decis ion. IfJ-S35036- 14

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they would have wanted to reconsider it, they would h ave done that in their proceedings. So that is not for me to decide. * * * The first issue to address is [Appellant’s] age as a mitigating issue. While I would acknowledge that he is a young man of 20, the criminal record he has managed to compil e in his short history is

-- impressive isn’t the right word because that implies positive things but is horrendous starting in ’05 with a retail theft, in ’03 and ’06 with the use of tobacco and truancy. It shows an inability of [Appellant] to follow rules. He then has - - was placed on a consent decree in 2006 for a variety of crimes but the fines weren ’t paid. In ’06, receiving stolen property; again, in ’06, theft; ’07, receiving stolen property; again, later in the year 2007, theft; in 2008 felony criminal trespass , placed in a variety of treatment facilities, Susquehanna House, I saw something else in here, Bethesda, the Be Challenged Pr ogram, the Clancy Alternative education and Day Treatment Pr ogram. And then in 2010, possession of marijuana and then he j ust continued with his behaviors in 2011. He’s obviously not benefited from any programs at the county level that can be provided to address his deviant behavior. The [c]ourt would then note that he was given the opportunity on February 27 th of 2013 to participate in one of the best programs that the [c]ourt is

-- this [c]ourt’s familiar with t o address addiction issues. You can’t treat someone for an addiction if they don’t want to cooperate and be treated. He was placed in the [dr ug court] program in February 27 th . And I don’t recall if this was a leap year or not, but within five, at most six days, was his first violation. He couldn’t even hold it together for a week after that and then it was just constant. I think he holds the r ecord for the most violations in the shortest period of time in tre atment court. There is nothing that the county has to offer [Appell ant]. this [c]ourt cannot ignore his substantial criminal histo ry; and my understanding, based on [defense counsel’s] comment

-- I don’t have a guideline form for the CR 10 of 2013 f irearmJ-S35036- 14

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offense. My understanding is that that would be an of fense gravity score of 10. I do now. Yes, an offense gravity score of 10, the prior record score of 5, the standard range is 5 years. You have accumulated a prior record score of 5 before you even hit 21 years old, and you have shown absolutely no redeeming behaviors or qualities which would earn you any leniency from this [c]ourt. Id. at 14- 16. 2

2 The court reiterated the reasoning behind its sentence at the November 4, 2013 hearing on Appellant’s motion to modify h is sentence stating, The [c]ourt took into consideration [Appellant’s] age in fashioning the sentence. The [c]ourt would note that i t could have imposed an eight-and-a-half to, I think, close t o thirty year sentence. The

-- and I think I went over these on the initial sentence. In his short 21 years, he’s accumulated a prior record score of 5. He’s managed to disqualify himself from RR RI eligibility because of his behavior dating back a decade

. * * * I don’t acce pt the representations that the age warrants a lesser sentence. He has a history of noncompliance. He was given the opportunity of the 17 th Judicial District’s Treatment Court which bends over backwards to help people, takes into consideration their relap se and other issues. He just didn’t stop. The sentence imposed by the [c]ourt, while the [c]our t is not bound by the guideline range in a revocation, wa s directly in the standard range [of the suggested sentencing guidelin es for the underlying offenses]. It was not excessive, it was n ot harsh. Other than his age, there was not one mitigating fact or that would warrant going out of the standard range in th is case. If anything, it could be argued that the [c]ourt could ha ve goneJ-S35036- 14

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Our review of the record demonstrates that the trial court considered the limited mitigating evidence presented by Appellan t in fashioning his sentence. Additionally, the court considered the history, character, and condition of Appellant and the gravity of the underl ying offenses. Finally, in deciding to sentence Appellant to a term of total conf inement, it is clear the trial court determined that, because Appellant has prov en his inability to meet the requirements of county-based treatment and ser vices, correctional treatment is warranted. Id. Accordingly, we find no abuse of discretion. Judgments of sentence affirmed. Petition to withdraw granted. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/17/2014

into the aggravated range because of his pitiful perfo rmance in treatment court. There’s nothing the county has to offer him; and apparently, he just doesn’t learn from the programs th at he’s been placed in. N.T., 11/4/2013, at 6- 7.J-S35036- 14

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