J-S35005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

JOSHUA SCOTT SCHAUER,

Appellant No. 1994 MDA 2017

Appeal from the Judgment of Sentence Entered November 22, 2017

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0000761-2012

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 27, 2018

Appellant, Joshua Scott Schauer, appeals from the judgment of 

sentence of 16 months’ to 10 years’ incarceration, imposed after he was 

convicted by a jury of delivering a controlled substance, criminal use of a 

communication facility, and two counts of conspiracy. On appeal, Appellant 

seeks to challenge certain aspects of his sentence. Additionally, his counsel, 

Joseph A. Crowe, Esq., has petitioned to withdraw his representation of 

Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review, 

we affirm Appellant’s judgment of sentence and grant counsel’s petition to 

withdraw.

The facts underlying Appellant’s convictions are not pertinent to his

present appeal. We only note that a jury convicted Appellant of the above-
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stated crimes on March 7, 2013. On June 26, 2013, Appellant was sentenced 

to an aggregate term of 2 to 10 years’ incarceration, which included a 

mandatory minimum sentence under 18 Pa.C.S. § 6317 (Drug-free school 

zones). On appeal from that judgment of sentence, this Court concluded that 

Appellant’s mandatory minimum sentence was illegal under Alleyne v. 

United States, 133 S.Ct. 2151 (2013). Accordingly, we vacated Appellant’s 

judgment of sentence and remanded for resentencing. See Commonwealth 

v. Schauer, 120 A.3d 390 (Pa. Super. 2015) (unpublished memorandum).

On March 18, 2015, Appellant was resentenced to 18 months’ to 10 

years’ incarceration. Appellant appealed, and this Court again vacated and 

remanded for resentencing, this time because the trial court had failed to state 

any reasons for the sentence it had imposed. See Commonwealth v. 

Schauer, No. 722 MDA 2015, unpublished memorandum at 6-7 (Pa. Super. 

filed July 28, 2016). 

On August 31, 2016, Appellant was resentenced to a term of 16 months’ 

to 7 years’ incarceration. On appeal, this Court vacated his sentence for a 

third time, after sua sponte concluding that the trial court had improperly 

reduced Appellant’s maximum sentence from 10 to 7 years in an effort to 

afford him credit for time served. We reasoned that the court should have 

instead ordered that Appellant be given credit for time served “against the 

maximum term” as mandated by 42 Pa.C.S. § 9760(1). See Commonwealth 

v. Schauer, No. 161 MDA 2017, unpublished memorandum at 5-6 (Pa. Super. 
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filed Aug. 22, 2017). Accordingly, we vacated Appellant’s sentence and 

remanded for another resentencing hearing.

On November 22, 2017, the court resentenced Appellant to a term of 

16 months’ to 10 years’ incarceration. Appellant filed a timely notice of 

appeal. He also timely complied with the trial court’s order to file a Pa.R.A.P. 

1925(b) statement, preserving the following issues for our review:

A. Whether the trial court erred in not calculating [Appellant’s] 

credits correctly.

B. Whether the trial court erred in ordering and placing 

[Appellant] in prison despite [Appellant’s] already serving his 

minimum sentence.

C. Whether the trial court erred by improperly sentencing 

[Appellant].

Appellant’s Rule 1925(b) Statement, 1/8/18, at 1 (single page). On February 

7, 2018, the trial court filed an order, seemingly in an attempt to satisfy Rule

1925(a). Therein, the court stated that it was affirming its November 22, 

2017 judgment of sentence, and cursorily explained that it “finds all alleged 

errors lack merit,” and that the transcript from the resentencing hearing 

“demonstrate[s] the reasons for [its] order and address[es] the alleged 

errors.” Trial Court Order, 2/7/18, at 1 (single page). 

Attorney Crowe thereafter filed with this Court a petition to withdraw 

and an Anders brief, discussing Appellant’s three, above-stated issues, and 

concluding that each is frivolous. Attorney Crowe also concludes that 

Appellant has no other, non-frivolous claims that he could pursue herein. 

Accordingly, 
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this Court must first pass upon counsel’s petition to withdraw 

before reviewing the merits of the underlying issues presented by 

[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 

290 (Pa. Super. 2007) (en banc).

Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established 

by our Supreme Court in Santiago. The brief 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. Counsel also must provide a copy of 

the Anders brief to his client. Attending the brief must be a letter 

that advises the client of his right to: “(1) retain new counsel to 

pursue the appeal; (2) proceed pro se on appeal; or (3) raise any 

points that the appellant deems worthy of the court[’]s attention 

in addition to the points raised by counsel in the Anders brief.” 

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 

2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After 

determining that counsel has satisfied these technical requirements of Anders 

and Santiago, this Court must then “conduct an independent review of the 

record to discern if there are any additional, non-frivolous issues overlooked 

by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 

2015) (citations and footnote omitted).
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In this case, Attorney Crowe’s Anders brief substantially complies with 

the above-stated requirements. Namely, he includes a summary of the 

relevant factual and procedural history, he refers to portions of the record that 

could arguably support Appellant’s claims, and he sets forth his conclusion 

that Appellant’s appeal is frivolous. He also explains his reasons for reaching

that determination, and supports his rationale with citations to the record and 

pertinent legal authority. Attorney Crowe also states in his petition to 

withdraw that he has supplied Appellant with a copy of his Anders brief. 

Additionally, he attached a letter directed to Appellant to his petition to 

withdraw, in which he informs Appellant of the rights enumerated in Nischan. 

Accordingly, counsel has complied with the technical requirements for 

withdrawal. We will now independently review the record to determine if 

Appellant’s issues are frivolous, and to ascertain if there are any other, nonfrivolous issues he could pursue on appeal. 

Appellant first seeks to challenge the trial court’s calculation of his credit 

for time served. Appellant preliminarily contends that the trial court erred by 

increasing his maximum term of incarceration from 7 years (imposed at the 

August 31, 2016 resentencing hearing) to the current maximum of 10 years. 

However, as discussed supra, this Court directed the trial court to make this 

change in our memorandum decision issued on August 22, 2017. See 

Schauer, No. 161 MDA 2017, unpublished memorandum at 5-6 (concluding

that under 42 Pa.C.S. § 9760(1), the court was required to “set its intended 

sentence and then appl[y] three years’ credit to the maximum term of that 
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sentence[,]” rather than reducing the set maximum term by three years as 

the trial court had done) (emphasis in original). Accordingly, we agree with 

Attorney Crowe that the court did not err in resentencing Appellant to a 

maximum term of 10 years’ imprisonment.

We also discern no merit to Appellant’s claim that he did not receive 

adequate credit for time served. At the resentencing hearing on November 

22, 2017, Appellant informed the court that he had been incarcerated on this 

case since June 22, 2013, and, therefore, he was entitled to credit for 4 years 

and 5 months of time served. N.T. Sentencing Hearing, 11/22/17, at 3. The 

court gave him credit for that exact amount of time. Id.; see also Written 

Sentencing Order, 11/22/17, at 2 (unnumbered). Consequently, we agree 

with Attorney Crowe that his time-credit challenge is frivolous. 

Next, Appellant avers that the trial court erred by not granting him 

immediate parole at the November 22, 2017 resentencing hearing. However,

as Attorney Crowe points out, because Appellant’s maximum sentence 

exceeded 2 years’ imprisonment, the trial court did not have the authority to 

grant him parole. See Anders Brief at 9. Rather, the Parole Board retains

the exclusive power to grant parole in this case. See 61 Pa.C.S. § 

6132(a)(1)(i) (stating that the Parole Board “shall have exclusive power: to 

parole and reparole, commit and recommit for violations of parole and to 

discharge from parole all persons sentenced by any court at any time to 

imprisonment in a correctional institution”); see also Commonwealth v. 

Tilghman, 652 A.2d 390, 391 (Pa. Super. 1991) (“When an offender is 
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sentenced to a maximum term of imprisonment of less than two years, the 

common pleas court retains authority to grant and revoke parole; when the 

maximum is two years or more, authority to grant or revoke parole is vested 

in the Parole Board.”) (citations omitted). Accordingly, we agree with Attorney 

Crowe that Appellant’s second issue is frivolous. 

In Appellant’s final issue, he seeks to assert a challenge to the court’s 

sentencing discretion in imposing an aggregate term of 16 months’ to 10 

years’ incarceration. However, Appellant did not raise any such claim at his 

sentencing hearing, or in a post-sentence motion. Accordingly, he has waived 

his discretionary-aspects-of-sentencing issue for our review. See 

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (“Objections 

to the discretionary aspects of a sentence are generally waived if they are not 

raised at the sentencing hearing or in a motion to modify the sentence 

imposed.”) (citation omitted).

In sum, we agree with Attorney Crowe that the issues Appellant seeks 

to raise on appeal are frivolous. Additionally, our independent review of the 

record reveals no other, non-frivolous issues that he could raise herein. 

Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s 

petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/27/2018