J-S54034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID W. ECKLUND

Appellant No. 163 MDA 2014

Appeal from the Judgment of Sentence entered October 28, 2013

In the Court of Common Pleas of Lackawanna County

Criminal Division at No: CP-35-CR-0002549-2008

BEFORE: LAZARUS, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 10, 2014

Appellant David W. Ecklund appeals the Court of Common Pleas of 

Lackawanna County’s (trial court) October 28, 2013, judgment of sentence 

imposed following the revocation of his sentence of state intermediate 

punishment (SIP) under the Prisons and Parole Code.1 Appellant’s counsel 

has filed a petition to withdraw, alleging that this appeal is wholly frivolous, 

and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). For the 

reasons set forth below, we affirm and grant the petition to withdraw.

The facts underlying this appeal are undisputed. As recounted by the 

trial court:

____________________________________________

1 Act of August 11, 2009, P.L. 147, No. 33, 61 Pa.C.S.A. §§ 4101-4108.
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On December 10, 2008, [Appellant] pled guilty to 

[p]ossession with [i]ntent to [d]eliver [(PWID)] [(cocaine)], 35 

Pa.C.S.A. § 780-113(a)(30) docketed to 08 CR 2549. 

Thereafter, on March 30, 2009 [Appellant] was sentenced to 

fourteen (14) months to thirty-six (36) months state 

incarceration plus two (2) years of special probation. On 

September 11, 2011, [Appellant] began serving his probationary 

term. One month later, [Appellant] absconded from supervision. 

In response, [the trial court] issued a warrant for [Appellant’s] 

arrest on November 14, 2011. In violation of his probation, 

[Appellant] admitted that he was residing in New York with his 

parents instead of residing at his approved residence with his 

uncle in Hazleton, Pennsylvania.

Subsequently on March 14, 2012, [Appellant] was charged 

with the following offenses: [p]ossession of Marijuana, 35 

Pa.C.S.A. § 780-113(a)(31); [u]se/[p]ossession of [d]rug 

[p]araphernalia, 35 Pa.C.S.A § 780-113(a)(32); and [p]ublic 

[d]runkenness, 18 Pa.C.S.A. § 5505, docketed to 12 CR 633. On 

April 11, 2012, [Appellant] pled guilty to [p]ublic [d]runkeness. 

. . . On that same date, a Gagnon II[2] hearing was held 

regarding 08 CR 254[9]. During the hearing, [Appellant] was 

found in violation of his probation and a . . . SIP[] sentence was 

recommended. Because [Appellant] indicated an ignorance of 

the SIP program, [the trial court] revoked [Appellant’s] 

probation and deferred sentence to provide [Appellant] with 

meaningful consideration of the program. On May 22, 2012, 

[Appellant] indicated an unwillingness to be evaluated for the 

SIP program and sentence was imposed. On [docket number] 

08 CR 2549, [Appellant] was sentenced to a term of three (3) to 

six (6) years state incarceration. On [docket number] 12 CR 

633, [Appellant] was sentenced to a consecutive forty-five (45) 

to ninety (90) days[’] incarceration. [Appellant] received 

[recidivism risk reduction incentive (RRRI)] eligibility and was 

given credit for time served from March 4, 2012.

On July 31, 2012, after granting [Appellant’]s [m]otion for 

[r]econsideration, [the trial court] vacated [Appellant’s] 

sentence and ordered him to be evaluated for the SIP program. 

[Appellant] was admitted to the SIP program on October 23, 

2012 and was sentenced to two (2) years in the SIP program 

followed by four (4) years[’] probation on [docket number] 08 

CR 2549 and a $300 fine on [docket number] 12 CR 633. A year 

later on October 28, 2013, [Appellant] was expelled from the SIP 

program for his lack of meaningful participation in the program 

including multiple misconducts, program violations, possessing 

contraband, cashing paychecks, presence in unauthorized areas, 

failing to attend mandatory meetings, and lying to employees. 

Accordingly, [Appellant] was sentenced to three and one half (3 

____________________________________________

2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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1⁄2) years to seven (7) years of state incarceration on [docket 

number] 08 CR 2549. On [docket number] 12 CR 633, 

[Appellant] was sentenced to a consecutive forty-five (45) to 

ninety (90) day[s’] incarceration.

[Appellant] filed an [amended] [m]otion for 

[r]econsideration on November 11, 2013[3]and a hearing was 

held on December 5, 2013. At the time of the hearing, 

[Appellant] sought two (2) types of relief. Specifically, 

[Appellant] requested reconsideration of sentence, and RRRI 

eligibility. At the time of the hearing, [the trial court] 

acknowledged that the forty-five (45) [to] ninety (90) day 

sentenced [sic] imposed on [docket number] 12 CR 633 should 

be vacated based upon the previously imposed fine of $300.00, 

which was imposed on October 23, 2012. Nevertheless, [the 

trial court] did not find that [Appellant’s] numerous misconducts 

warranted reconsideration. [The trial court] stated:

in regard to his violations, though, it wasn’t simply 

for DATS [(drug and alcohol treatment services)]. In 

fact, it says here he was discharged for receiving 

numerous previous infractions. Besides failing to 

attend [or] manage treatment groups, he’s 

possessing contraband and lying to employees, 

cashing paychecks, presence in unauthorized areas 

and violating conditions. So it wasn’t something with 

DATS. Further, he failed to progress in the program 

despite multiple therapeutic interventions and 

therefore—so [the trial court] will deny the other 

part of the reconsideration.

([N.T. Reconsideration Hearing, 12/5/13 at 3-4]). 

Accordingly, on January 13, 2014, [the trial court] denied 

[Appellant’s] [r]econsideration of [s]entence in part and then 

vacated [Appellant’s] sentence on [docket number] 12 CR 633. 

[The trial court] granted eligibility for motivational boot camp. 

Rather than impose RRRI eligibility, [the trial court] found that 

the motivational boot camp program was more consistent with 

[Appellant’s] individual rehabilitative needs. [The trial court] 

further instructed that all previous conditions of [Appellant’s] 

sentence remain in effect. On January 14, 2014, Appellant filed 

a timely [n]otice of [a]ppeal to the Pennsylvania Superior Court. 

Trial Court Opinion, 5/2/14, at 1-3. Following Appellant’s filing of a 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal, in which he 

____________________________________________

3 The docket indicates that Appellant filed the amended motion for 

reconsideration on November 4, 2013.
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challenged the discretionary aspects of the sentence imposed, the trial court 

issued a Pa.R.A.P. 1925(a) opinion. In its opinion, the trial court concluded 

that it did not abuse its discretion in sentencing Appellant to three-andone-half to seven years’ incarceration. Trial Court Opinion, 5/2/14, at 7-12. 

Specifically, the trial court determined that, contrary to Appellant’s claim, 

the sentence imposed was not excessive because it fell within the statutory 

maximum. Id. at 11. The court noted that it duly considered all appropriate 

factors and the record supports its reasons for the sentence imposed. Id. 

On April 29, 2014, Appellant’s counsel filed a motion to withdraw as 

counsel and filed an Anders brief, wherein counsel raises a single issue for 

our review: “Whether the sentence imposed was inappropriately harsh and 

excessive and an abuse of discretion?” Anders/Santiago Brief at 4. 

When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first examining counsel’s petition to 

withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 

2007) (en banc). It is well-established that, in requesting a withdrawal, 

counsel must satisfy the following procedural requirements: 1) 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; 2) provide a copy of the brief to the defendant; and 3) advise the 

defendant that he or she has the right to retain private counsel, proceed pro 

se or raise additional arguments that the defendant considers worthy of the 
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court’s attention. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 

2009).

Instantly, counsel’s petition to withdraw from representation provides 

that counsel reviewed the record and concluded that the appeal is frivolous. 

Furthermore, counsel notified Appellant that she was seeking permission to 

withdraw and provided Appellant with copies of the petition to withdraw and 

her Anders brief. Counsel also advised Appellant of his right to retain new 

counsel, proceed pro se, or raise any additional points he deems worthy of 

this Court’s attention. Accordingly, we conclude that counsel has satisfied 

the procedural requirements of Anders. 

We next must determine whether counsel’s Anders brief complies with 

the substantive requirements of Santiago, wherein our Supreme Court 

held: 

[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 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. Here, our review of counsel’s brief indicates 

that she has complied with the briefing requirements of Santiago. We, 

therefore, conclude that counsel has satisfied the minimum requirements of 

Anders/Santiago.
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Once counsel has met her 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. Thus, 

we now turn to the merits of Appellant’s appeal. 

Appellant essentially argues that the trial court abused its discretion in 

sentencing him to three-and-one-half to seven years’ imprisonment for 

PWID under 35 Pa.C.S.A. § 780-113(a)(30) following the revocation of his 

SIP sentence.4 

It is now well-settled that an appellant may challenge the discretionary 

aspects of a revocation sentence before this Court. See Commonwealth v. 

Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (“To eliminate the discord 

between what we seem to say and what we do, we unequivocally hold that 

this Court’s scope of review in an appeal from a revocation sentencing 

____________________________________________

4 The SIP program was created to “punish persons who commit crimes, but 

also provides treatment that offers the opportunity for those persons to 

address their drug or alcohol addiction or abuse and thereby reduce the 

incidents of recidivism and enhance public safety.” 61 Pa.C.S.A. § 4102. 

Further, the program was “designed to address the individually assessed 

drug and alcohol abuse and addition needs of a participant and shall address 

other issues essential to the participant’s successful reintegration into the 

community, including, but not limited to, educational and employment 

issues.” 61 Pa.C.S.A. § 4105. Here, as noted above, Appellant challenges 

only the sentence imposed after the revocation of his SIP sentence, and not 

the revocation of the SIP sentence itself. 
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includes discretionary sentencing challenges.”). The standard of review for a 

claim challenging the discretionary aspects of a sentence is settled:

Sentencing is a matter vested in the sound discretion of the 

judge, and will not be disturbed on appeal absent a manifest 

abuse of discretion. 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation 

omitted), appeal denied, 980 A.2d 607 (Pa. 2009). Trial judges enjoy 

broad discretion in sentencing, because they are in the best position to 

determine the proper penalty for an offense based on an evaluation of the 

individual circumstances of that offense. Commonwealth v. Walls, 926 

A.2d 957, 961 (Pa. 2007). 

It also is well-settled that “[t]he right to appeal a discretionary aspect 

of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 

1220 (Pa. Super. 2011). Rather, where an appellant challenges the 

discretionary aspects of a sentence, an appellant’s appeal should be 

considered as a petition for allowance of appeal. See Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in 

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to determine: (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. 

[708]; (3) whether appellant’s brief has a fatal 
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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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). Whether a particular issue constitutes a substantial question about 

the appropriateness of sentence is a question to be evaluated on a case-bycase basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. 

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002). 

Here, Appellant has satisfied the first three requirements of the fourpart Moury test. Appellant filed a timely appeal to this Court,5 preserved 

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5 Appellant was able to satisfy the first (timeliness) requirement of the 

Moury test only because of a breakdown in the trial court’s operation. Here, 

the trial court improperly informed Appellant that he had the right to file a 

written post-sentence motion under Pa.R.Crim.P. 720 and that the filing of 

such motion would toll the thirty-day appeal period. See N.T. Revocation 

Hearing, 10/28/13, at 7. As a result, Appellant appealed to this Court on 

January 14, 2014, a day after the trial court denied his post-sentence 

motion titled “amended motion for reconsideration of sentence.” Contrary to 

the information the trial court provided to Appellant, however, Pennsylvania 

Rule of Criminal Procedure 708 governs the disposition of a motion to modify 

a sentence imposed after a revocation hearing. Specifically, Rule 708 

provides in pertinent part that “[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.” 

Pa.R.Crim.P. 708(E); see also Pa.R.Crim.P. 720 Comment (“The disposition 

of a motion to modify a sentence imposed after a revocation hearing is 

governed by Rule 708.”). Thus, under Rule 708, which does not toll the 

thirty-day appeal period, Appellant had thirty days from the October 28, 

2013, judgment of sentence to appeal to this Court. Even though 

Appellant’s appeal filed on January 14, 2014, is facially untimely under Rule 

708, we will excuse the untimeliness because of the trial court’s 

misstatement of the post-sentencing process. See Commonwealth v. 

Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (We declined to “quash this 

appeal because [the appellant’s] error resulted from the trial court’s 

(Footnote Continued Next Page)
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the issue on appeal through his motion to modify sentence, and included a 

Pa.R.A.P. 2119(f) statement in his brief.6 Thus, we must determine only if 

Appellant’s sentencing issue raises a substantial question.

We have found that a substantial question exists “when the 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.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 

2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). This 

Court does not accept bald assertions of sentencing errors. See 

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). 

When we examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists, “[o]ur inquiry must focus on the 

reasons for which the appeal is sought, in contrast to the facts underlying 

the appeal, which are necessary only to decide the appeal on the merits.” 

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008) 

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)). 

A Rule 2119(f) statement is inadequate when it “contains incantations of 

(Footnote Continued) _______________________

misstatement of the appeal period, which operated as a ‘breakdown in the 

court’s operation.’”). 

6 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary 

aspects of a sentence in a criminal matter shall set forth in his brief a 

concise statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). 
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statutory provisions and pronouncements of conclusions of law[.]” 

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation 

omitted).

Here, Appellant asserts in his Rule 2119(f) statement “given the 

nature of the violation, the sentence was excessive.” Anders/Santiago

Brief at 13. Specifically, he argues “the lower court imposed a more severe 

sentence not due to any egregious facts surrounding the commission of the 

crime or the particular need to protect the community, but rather imposed 

its sentence as a punishment for his failure to complete the SIP program.” 

Id. 

Based on Appellant’s 2119(f) statement, we conclude that he has 

raised a substantial question. See Commonwealth v. Simmons, 56 A.3d 

1280, 1286 (Pa. Super. 2012) (“A claim that a sentence is manifestly 

excessive such that it constitutes too severe a punishment raises a 

substantial question.”); accord Commonwealth v. Kelly, 33 A.3d 638, 640 

(Pa. Super. 2011); Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. 

Super. 2006). As such, we address the merits of Appellant’s sentencing 

claim. 

As noted earlier, we review any challenge to the trial court’s 

discretionary aspects of sentencing under an abuse of discretion standard. 

See Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013), 

appeal denied, 91 A.3d 161 (Pa. 2014). The Sentencing Code, quoted 

here in relevant part, governs our review:
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§ 9781. Appellate Review of Sentence.

(d) Review of record.--In reviewing the record the 

appellate court shall have regard for:

(1) The nature and circumstances of the offense and 

the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to 

observe the defendant, including any presentence 

investigation.

(3) The findings upon which the sentence was based.

42 Pa.C.S.A. § 9781(d)(1-3).7 

A sentence may be found unreasonable if it fails to properly 

account for these . . . statutory factors. A sentence may also be 

found unreasonable if the sentence was imposed without express 

or implicit consideration by the sentencing court of the general 

standards applicable to sentencing [under 42 Pa.C.S.A. 

§ 9721(b)]. These general standards mandate that a sentencing 

court impose a sentence 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.

Sheller, 961 A.2d at 191 (internal citation and quotation marks omitted). 

Instantly, it is undisputed that the trial court imposed upon Appellant a 

sentence of three-and-one-half to seven years’ imprisonment, which fell well 

within the statutory maximum. See 35 Pa.C.S.A. § 780-113(f)(1.1) 

(imprisonment sentence not to exceed ten years). Thus, the essential issue 

we must resolve is whether the sentence imposed is reasonable. In this 

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7

The sentencing guidelines do not apply to sentences imposed because of 

intermediate punishment revocation. See Commonwealth v. Philipp, 709 

A.2d 920, 921-22 (Pa. Super. 1998); see also 204 Pa. Code § 303.1(b) 

(“The sentencing guidelines do not apply to sentences imposed as a result of 

. . . intermediate punishment.”). Therefore, to the extent Appellant argues 

that his sentence fell outside of the sentencing guidelines, we reject such 

argument. 
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regard, we consider the above-mentioned three Section 9781(d) factors. 

See Sheller, 961 A.2d at 190-91. 

First, the trial court had the benefit of a presentence investigation 

(PSI) report, which indicates that the trial court was aware of Appellant’s 

character and circumstances, and weighed those considerations in imposing 

the sentence. See Moury, 992 A.2d at 171 (“Where the sentencing court 

had the benefit of a [PSI], we can assume the sentencing court was aware of 

relevant information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.”) (internal citation 

omitted). 

Second, as the trial court judge explained, he was familiar with 

Appellant. Specifically, the judge noted:

[The trial court] became familiar with [Appellant] through 

imposition of [Appellant’s] original sentence on March 30, 2009, 

[Appellant’s] revocation of probation and sentence on May 22, 

2012, [Appellant’s] SIP sentence on October 23, 2012, the 

subsequent expulsion and sentencing on October 28, 2013, and 

[Appellant’s] reconsideration of sentence on December 5, 2013. 

Throughout [the trial court’s] numerous interactions with 

[Appellant], [the court] repeatedly revisited [Appellant’s] file and 

referenced knowledge of the facts of the crime and the character 

of the offender[.]

Trial Court Opinion, 5/2/14, at 7. Lastly, based on our review of the entire 

record, we conclude that the trial court satisfied the remaining Section 

9781(d) factor (findings). The trial court’s findings of fact were supported 

by record evidence. Accordingly, we conclude the trial court did not abuse 

its discretion in sentencing Appellant to three-and-one-half to seven years’ 

imprisonment and that the sentence imposed was not unreasonable. 
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Next, to the extent Appellant argues that the trial court imposed an 

unreasonable sentence because it sought to punish him for his failure to 

complete the SIP sentence, we dismiss such argument as baseless.8 Aside 

from the fact that Appellant fails to point to any evidence of record to 

substantiate this claim, we note the trial court was unambiguous in its 

reasons for imposing the sentence. The trial court stated that it fashioned 

the sentence imposed with an eye toward the need to protect the public and 

the gravity of the offense in relation to the impact on the community.9 See 

id. at 9. Moreover, under the Sentencing Code, the trial court had the same 

sentencing alternatives available to the court at sentencing following the 

revocation of the SIP sentence as the alternatives available at the time of 

initial sentencing. See 42 Pa.C.S.A. § 9774(c) (“Upon revocation of a [SIP] 

____________________________________________

8 Appellant does not allege that the trial court failed to consider his 

rehabilitative needs under Section 9721(b). In fact, in light of the above 

recitation of the facts in this case, we do not fault him for this decision. As 

the record indicates, Appellant failed to avail himself of the many 

rehabilitative opportunities provided by the trial court. 

9

In recounting its reasons for the sentence imposed, the trial court found:

[Appellant has demonstrated resistance to treatment and 

supervision by failing to attend mandatory meetings and failing 

to provide meaningful participation. Moreover, [Appellant] has 

refused to alter his pattern of antisocial conduct. [Appellant] has 

lied to employees, possessed contraband, cashed paychecks, 

and was present in unauthorized areas. In all likelihood, given 

[Appellant’s] indifference to rehabilitation, rationalization of his 

actions, and failure to comply with the conditions imposed by the 

SIP program, [Appellant] will continue to commit criminal 

offenses.

Trial Court Opinion, 5/2/14, at 10. 
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sentence, the sentencing alternatives available to the court shall be the 

same as the alternatives available at the time of initial sentencing.”). 

We have conducted an independent review of the record and 

addressed Appellant’s issue regarding the excessive nature of the sentence 

imposed following his SIP sentence revocation. Based on our conclusion 

above, we agree with counsel that the issue Appellant seeks to litigate in this 

appeal is wholly frivolous. Also, we do not discern any non-frivolous issues 

that Appellant could have raised. We, therefore, grant counsel’s petition to 

withdraw and affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted. 

Judge Lazarus joins the memorandum.

Judge Mundy concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2014