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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 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

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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 revoked 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 withdraw and affirm the 

judgments of sentence. 

 As a result of several convictions, Appellant was participating in an 

intermediate punishment program. On June 25, 2013, the Commonwealth 

filed a motion to revoke Appellant’s intermediate punishment. The trial 

court held a hearing on October 10, 2013. At that hearing, Appellant 
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admitted to violating conditions of his intermediate punishment program. 

The court revoked Appellant’s intermediate punishment and sentenced him 

to an aggregate term of incarceration of 5 to 12 years. 

 Appellant timely filed a post-sentence motion to modify his sentence. 

After holding a hearing on that motion, the trial court denied it. Appellant 

timely filed a notice of appeal. The trial court directed 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 petition 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 service indicating that 

counsel had served Appellant with a copy of his new petition to withdraw on 

July 17, 2014. 

 

1

 On December 13, 2013, the trial court entered a scheduling 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 allowed Appellant only 10 

days to file a statement of errors complained of on appeal, instead of a 

minimum of 21 days to file such a statement. 

 Appellant filed his Pa.R.A.P. 1925(b) statement on January 7, 2014, 

which is outside the time period allowed by the court’s order but within the 

time period allowed by Pa.R.A.P. 1925(b)(2). We, therefore, conclude that 

Appellant timely filed his Pa.R.A.P. 1925(b) statement. 
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 As we previously stated, 

 Direct appeal counsel seeking to withdraw under Anders 

must file a petition averring that, after a conscientious 

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 with any 

other issues necessary for the effective appellate presentation 

thereof....

Anders counsel must also provide a copy of the Anders 

petition and brief to the appellant, advising the appellant 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 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. 

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 whether counsel has 

requested properly permission to withdraw. Commonwealth v. Wimbush, 

951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted). If counsel has met 

these obligations, “it then becomes the responsibility of the reviewing court 
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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 354 n.5. 

We conclude that counsel has complied with the requirements outlined 

above. Counsel has filed a petition with this Court stating that after 

reviewing the record, he finds this appeal to be wholly frivolous. Second 

Petition to Withdraw as Counsel, 7/17/2014, at 1. Counsel has filed a brief 

which includes summaries of the facts and procedural history of the case and 

sets forth one issue that he believes might arguably support an appeal. 

Second Anders Brief at 15-19. Counsel’s brief sets forth his conclusion that 

the appeal is frivolous and includes citation to relevant 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 Court’s 

consideration. 

We therefore proceed to an independent review of the record and the 

issue that counsel stated arguably supports an appeal. The 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. 
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Preliminarily, we note that the rules for resentencing a defendant 

following the revocation of an intermediate punishment sentence are 

analogous to that applicable to re-sentencing following probation revocation 

in that “[u]pon revocation ... the sentencing alternatives available to the 

court [are] the same as the alternatives available at the time of initial 

sentencing.” 42 Pa.C.S. § 9773(b). Thus, in evaluating revocation of an 

intermediate punishment sentence, this Court applies the same standard it 

applies when reviewing a sentence imposed after probation 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 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. 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 to 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: 
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First, the appellant 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 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 discretionary aspects of 

sentence must be raised in a post-sentence motion or by presenting the 

claim to the trial court during the sentencing proceedings. Commonwealth 

v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003). Absent such efforts, an 

objection to a discretionary aspect of a sentence is waived. Id. 

Instantly, Appellant filed a post-sentence motion challenging the 

discretionary aspects of his sentence, and counsel has included in his 

Anders brief a Rule 2119(f) statement. The remaining question, therefore, 

is whether Appellant has raised a substantial question for our review. 
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 In his Anders brief, counsel argues that, in imposing the five-totwelve-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 sentencing 

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 omitted). 

Accordingly, we find that this issue does not raise a substantial question for 

our review. 

However, this Court has recently reiterated that arguments 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 relief is due as 

the record belies his claim. Prior to sentencing, the trial court heard evidence 
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of Appellant’s age, his drug and alcohol issues, his remorsefulness about the 

underlying violations that resulted in his removal from the drug court 

program, and his desire to return to the treatment program 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 investigation report, it will 

be presumed that he or she was aware of the relevant information regarding 

the defendant's character and weighed those considerations along with 

mitigating statutory factors.” Commonwealth v. Boyer, 856 A.2d 149, 154 

(Pa. Super. 2004). Nonetheless, after hearing from the district attorney, 

defense counsel, and Appellant, the court rejected Appellant’s statements of 

remorse and set forth the following explanation of Appellant’s sentence.

 The derogatory comments about a judge [which, along 

with his repeated violation of the GPS monitoring conditions, 

destruction of the GPS monitoring device, failure to appear for 

scheduled counsel sessions, use of synthetic marijuana, and use 

of alcohol, formed the basis for Appellant’s removal from 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 would have to 

squirm. I understand from the treatment court perspective it is 

a different situation because of the approach. In criminal court 

and the sentencing, it’s not a factor. There are a lot 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 is not 

for me to decide. The decision has been made by the treatment 

court team. It is not my place to second guess their decision. If 
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they would have wanted to reconsider it, they would have 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 compile 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 Program, 

the Clancy Alternative education and Day Treatment Program. 

And then in 2010, possession of marijuana and then he just 

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 27th of 2013 to participate in one of the 

best programs that the [c]ourt is -- this [c]ourt’s familiar with to 

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 [drug court] 

program in February 27th. 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 record for the 

most violations in the shortest period of time in treatment court. 

 There is nothing that the county has to offer [Appellant]. 

this [c]ourt cannot ignore his substantial criminal history; and 

my understanding, based on [defense counsel’s] comment -- I 

don’t have a guideline form for the CR 10 of 2013 firearm 
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offense. My understanding is that that would be an offense 

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 his sentence stating, 

The [c]ourt took into consideration [Appellant’s] age in 

fashioning the sentence. The [c]ourt would note that it could 

have imposed an eight-and-a-half to, I think, close to 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 RRRI 

eligibility because of his behavior dating back a decade. 

* * * 

I don’t accept the representations that the age warrants a 

lesser sentence. He has a history of noncompliance. He was

given the opportunity of the 17th Judicial District’s Treatment 

Court which bends over backwards to help people, takes into 

consideration their relapse and other issues. He just didn’t stop.

 The sentence imposed by the [c]ourt, while the [c]ourt is 

not bound by the guideline range in a revocation, was directly in 

the standard range [of the suggested sentencing guidelines for 

the underlying offenses]. It was not excessive, it was not harsh. 

Other than his age, there was not one mitigating factor that 

would warrant going out of the standard range in this case. If 

anything, it could be argued that the [c]ourt could have gone 
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 Our review of the record demonstrates that the trial court considered 

the limited mitigating evidence presented by Appellant in fashioning his 

sentence. Additionally, the court considered the history, character, and 

condition of Appellant and the gravity of the underlying offenses. Finally, in 

deciding to sentence Appellant to a term of total confinement, it is clear the 

trial court determined that, because Appellant has proven his inability to 

meet the requirements of county-based treatment and services, 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 performance in 

treatment court. 

There’s nothing the county has to offer him; and 

apparently, he just doesn’t learn from the programs that he’s 

been placed in. 

N.T., 11/4/2013, at 6-7.
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