J-S68042-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

LEO JAMES BRUNORI,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 744 MDA 2017

Appeal from the Judgment of Sentence January 30, 2017

in the Court of Common Pleas of Lackawanna County,

Criminal Division, at No(s): CP-35-CR-0002128-2009

BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 09, 2017

Leo James Brunori (Appellant) appeals from his January 30, 2017

judgment of sentence of six to 12 months’ imprisonment following the 

revocation of his probation. Counsel has filed a petition to withdraw and a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm 

Appellant’s judgment of sentence and grant counsel’s petition to withdraw. 

On October 2, 2009, Appellant pled guilty to DUI: Highest Rate of 

Alcohol- second offense, and was sentenced to five years of intermediate 

punishment, with the first 90 days in confinement.

On August 2, 2011, following a violation, [Appellant] was 

resentenced to a five year intermediate punishment sentence with 

the first [90] days in confinement. On April 3, 2014, [Appellant] 

stipulated to violating the terms of his supervision and was 

resentenced to 84 days confinement followed by six months 
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SCRAM[1] house arrest and four years’ probation. On June 19, 

2014, as a result of [Appellant’s] multi-day alcohol use while on 

SCRAM house arrest, [Appellant’s] sentence was again[] revoked 

following a violation and resentenced to one year [and six] months 

to three years confinement, followed by one year of probation. 

[Pertinent to this appeal, on] January 30, 2017[, after a Gagnon 

II2 hearing, Appellant was] found in violation for the fourth time 

after he failed to report to his parole office, [and] was resentenced 

to six to 12 months’ confinement consecutive to the parole hit he 

was serving in the SCI.

[Appellant] filed a motion for reconsideration of sentence on 

February 7, 2017, which was denied on March 31, 2017. Upon 

motion, counsel for [Appellant] was permitted to withdraw on 

March 10, 2017. [Appellant] filed a pro se notice of appeal on 

April 25, 2017, and new counsel was appointed.[3]

 

1 SCRAM is alcohol monitoring house arrest.

2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3 At the outset, we recognize, as noted by the trial court, that Appellant’s 

notice of appeal was not timely filed. To be considered timely-filed, 

Appellant’s notice of appeal must have been filed thirty days after his 

judgment of sentence was entered, irrespective of an outstanding motion for 

sentence modification. See 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.”). However, this Court has found that when a defendant 

is misinformed of his or her appellate rights, we will not quash an appeal for 

want of a timely filed notice of appeal. See Commonwealth v. Coolbaugh, 

770 A.2d 788, 791 (Pa. Super. 2001) (“[I]n similar situations we have declined 

to quash the appeal recognizing that the problem arose as a result of the trial 

court’s misstatement of the appeal period, which operated as a breakdown in 

the court’s operation.”). Here, following the imposition of Appellant’s 

sentence, the trial court stated that Appellant was entitled to file a motion for 

reconsideration within ten days and “[i]f that’s denied, you have the right to 

file an appeal to the Superior Court within 30 days of that motion has [sic] 

been denied.”). N.T., 1/30/2017, at 8 (emphasis added). In light of this 

misinformation that was relayed to Appellant, we decline to quash this appeal.
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Trial Court Opinion, 7/11/2017, at 2-3 (unnecessary capitalization and 

repetition of quantities in numeral form omitted). 

In this Court, counsel has filed both an Anders brief and a petition to 

withdraw as counsel. Accordingly, the following principles guide our review.

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.

If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition to 

withdraw and remand the case with appropriate instructions (e.g., 

directing counsel either to comply with Anders or file an 

advocate’s brief on Appellant’s behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our own 

review of the appeal to determine if it is wholly frivolous. If the 

appeal is frivolous, we will grant the withdrawal petition and affirm 

the judgment of sentence. However, if there are non-frivolous 

issues, we will deny the petition and remand for the filing of an 

advocate’s brief. 

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007) 

(citations omitted). Further, our Supreme Court has specified the following 

requirements for the Anders brief:

[I]n 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 
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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.

Based upon our examination of counsel’s petition to withdraw and 

Anders brief, we conclude that counsel has substantially complied with the 

technical requirements set forth above.4 Thus, we now have the responsibility 

“‘to make a full examination of the proceedings and make an independent 

judgment to decide whether the appeal is in fact wholly frivolous.’” 

Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015) 

(quoting Santiago, 978 A.2d at 354 n. 5).

In her Anders brief, counsel states the following questions for this 

Court’s review, which we have reordered for ease of disposition. 

[1.] Whether the trial court erred and imposed an illegal sentence 

when it directed that [] Appellant serve a [six-to-12-month] 

sentence in a state correctional facility since the term of the 

sentence is less than [24] months, which is in violation of 42 

Pa.C.S.[] § 9762?

[2.] Whether the trial court erred when it revoked Appellant’s 

probation and abused its discretion or otherwise imposed an illegal 

sentence since his violation occurred before he began serving his 

probationary sentence, and therefore, did not constitute a 

violation of probation?

[3.] Whether the sentence imposed was inappropriately harsh and 

excessive since the violation was a technical violation and was not 

due to new charges being filed against Appellant?

 

4 Appellant has not filed a response to counsel’s petition to withdraw.
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[4.] Whether the trial court erred in not waiting for the completed 

mental health evaluation in order to aid the court with determining 

the appropriate sentence?

[5.] Whether the trial court erred and abused its discretion when 

it directed that [] Appellant serve a [six-to-12-month] sentence in 

a state correctional facility since the term of the sentence is less 

than [24] months, which is in violation of 42 Pa.C.S.[] § 9762?

Anders Brief at 5 (suggested answers and unnecessary capitalization 

omitted). 

We first consider Appellant’s claim that his sentence is illegal pursuant 

to 42 Pa.C.S. § 9762. Specifically, Appellant contends the trial court 

wrongfully imposed a mandate that his six to 12 month sentence be served in 

a state correctional institution as opposed to a county prison, in direct 

contravention to the above-referenced statute. Anders Brief at 14. We 

review this issue mindful of the following. 

As long as the reviewing court has jurisdiction, a challenge to the 

legality of the sentence is non-waivable and the court can even 

raise and address it sua sponte. Issues relating to the legality of 

a sentence are questions of law[.] As with all questions of law on 

appeal, our standard of review is de novo and our scope of review 

is plenary.

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (internal 

citations and quotation marks omitted). Section 9762 provides the following 

in relevant part.

(b) Sentences or terms of incarceration imposed after a 

certain date. -- All persons sentenced three or more years after 

the effective date of this subsection to total or partial confinement 

shall be committed as follows:
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(1) Maximum terms of five or more years shall be committed to 

the Department of Corrections for confinement.

(2) Maximum terms of two years or more but less than five 

years shall be committed to the Department of Corrections 

for confinement[.] ...

(3) Maximum terms of less than two years shall be committed 

to a county prison within the jurisdiction of the court.

42 Pa.C.S. § 9762(b). 

On appeal, counsel for Appellant notes that after the filing of this appeal, 

the trial court corrected its previous order and directed that Appellant’s 

sentence be served in a county prison, and thus his sentence was no longer 

in conflict with the mandates set forth in 42 Pa.C.S. § 9762(b). Anders Brief 

at 14-15. Our review of the record confirms counsel’s finding. See Order 

7/18/2017 (“[U]pon review of [Appellant’s] sentence in the above-captioned 

matter, it is hereby ordered and decreed that [Appellant] shall be remanded 

to Lackawanna County Prison to serve the remainder of the [six to 12] month 

sentence imposed on January 30, 2017[.]”) (emphasis omitted). Thus, this 

issue is moot. 

Appellant’s remaining four issues all challenge the discretionary aspects 

of his sentence.5 As such, we consider his claims mindful of the following. It 

 

5

It appears Appellant attempts to also assert a legality claim within his second 

issue, averring the trial court erred in imposing a sentence on a violation that 

occurred before he began serving his probationary sentence. Anders Brief at 

11. Although worded as a legality claim, in reality, Appellant is questioning 

the trial court’s authority to sentence Appellant on a violation that occurred 

prior to the beginning of his sentence. Even if we were to find that Appellant’s 

claim implicates the legality of his sentence, as correctly noted by counsel, 
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is within this Court’s scope of review to consider challenges to the 

discretionary aspects of an appellant’s sentence in an appeal following a 

revocation of probation. Commonwealth v. Ferguson, 893 A.2d 735, 737 

(Pa. Super. 2006).

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the following 

four factors: 

(1) whether appellant has filed a timely notice of 

appeal, see Pa.R.A.P. 902 and 903; (2) whether the 

issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence, see

Pa.R.Crim.P. 720; (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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014) 

(some citations omitted). 

Here, Appellant filed a notice of appeal after he filed a motion to

reconsider sentence, which was denied by the trial court. Furthermore, the 

Anders brief contains a statement pursuant to Pa.R.A.P. 2119(f). 

 

the issue has no merit. See Commonwealth v. Ware (“The fact that 

appellant had not commenced serving probation when the new offense 

occurred did not prevent the court from revoking its prior order placing 

appellant on probation.”). 
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However, because the discretionary-aspects claims Appellant presents 

on appeal are not identical to the one he presented in his post-sentence 

motion, before considering whether Appellant’s issues raise a substantial 

question, we must determine if Appellant’s claims are properly preserved for 

our review. In so doing, we observe that

challenges to a court’s sentencing discretion must be raised during 

sentencing or in a post-sentence motion in order for this Court to 

consider granting allowance of appeal. Moreover, for any claim 

that was required to be preserved, this Court cannot review a legal 

theory in support of that claim unless that particular legal theory 

was presented to the trial court. Thus, even if an appellant did 

seek ... to attack the discretionary aspects of sentencing in the 

trial court, the appellant cannot support those claims in this Court 

by advancing legal arguments different than the ones that were 

made when the claims were preserved.

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations 

omitted).

In his post-sentence motion, Appellant requested a modification of his 

sentence, allowing him to “serve his sentence at the Lackawanna County 

Prison so that he may eventually be placed in the Work Release Center 

enabling him to more quickly return to work.” Post-Sentence Motion, 

2/7/2017, at 2 (unnumbered). At the hearing on Appellant’s motion, counsel 

relayed that Appellant’s sentence had been ordered to be served in a state 

correctional institution, and that he was requesting that his sentence be

served in county jail, so that he may, in time, petition for work release. See 

N.T., 3/10/2017, at 2-3. Appellant did not include any of the discretionary 

aspects claims he now seeks to litigate on appeal within in his motion nor did 
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he argue these claims at the hearing. Therefore, we find his final four claims 

waived. Rush, 959 A.2d at 949. It is well-settled that waived issues are 

frivolous. Commonwealth v. Kalichak, 943 A.2d 285 (Pa. Super. 2008).

Thus, we agree with counsel that the issues raised regarding Appellant’s 

sentence are frivolous. Moreover, we have conducted “a full examination of 

the proceedings” and conclude that “the appeal is in fact wholly frivolous.”6

Flowers, 113 A.3d at 1248. Accordingly, we affirm the judgment of sentence 

and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/2017

 

6 We reviewed the record mindful of the fact that “the scope of review in an 

appeal following a sentence imposed after probation revocation is limited to 

the validity of the revocation proceedings and the legality of the sentence 

imposed following revocation.” Commonwealth v. Infante, 888 A.2d 783, 

790 (Pa. 2005)