J-S57020-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

 Appellee

v.

MARCO MANUEL MARIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1303 EDA 2018

Appeal from the Judgment of Sentence March 29, 2018

in the Court of Common Pleas of Chester County 

Criminal Division at No.: CP-15-CR-0003867-2016

BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 09, 2018

Appellant, Marco Manuel Marin, appeals from the judgment of sentence 

imposed following revocation of his parole. Appellant’s counsel seeks to 

withdraw her representation pursuant to Anders v. California, 386 U.S. 738 

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We 

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

The relevant facts and procedural history of this case are as follows. On 

April 25, 2017, Appellant entered a guilty plea to simple assault and criminal 

mischief.1 The charges stem from Appellant’s assault on his then-girlfriend, 

during which he struck her in the back of the head, grabbed her by the arms, 

and attempted to choke her. On the same day Appellant entered his plea, the 

trial court sentenced him to a term of not less than six nor more than twenty-

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1 18 Pa.C.S.A. §§ 2701(a)(1) and 3304(a)(5), respectively.
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three months’ imprisonment on the simple assault charge, followed by one 

year of probation on the criminal mischief charge. Appellant did not appeal 

the judgment of sentence. He was paroled on September 5, 2017. A bench 

warrant was issued for a violation of parole on October 2, 2017, based on new 

criminal offenses, relating to domestic violence and drugs.

The trial court held a violation hearing on March 29, 2018. It revoked 

Appellant’s parole, and ordered him to serve the balance of his maximum 

sentence on the simple assault charge, i.e., seventeen months and thirteen 

days, with instructions to close the case after his parole. (See Violation 

Sentencing Sheet, 3/29/18). Appellant timely appealed. 

On May 15, 2018, in response to the trial court’s concise statement 

order, counsel filed a statement of intent to file an Anders Brief. See 

Pa.R.A.P. 1925(c)(4). The trial court entered a Rule 1925(a) statement on 

May 29, 2018. See Pa.R.A.P. 1925(a). Counsel filed her petition for leave to 

withdraw and Anders brief on July 13, 2018.

When presented with an Anders brief, this Court may not 

review the merits of the underlying issues without first passing on 

the request to withdraw. Before counsel is permitted to withdraw, 

he or she must meet the following requirements:

First, counsel must petition the court for leave 

to withdraw and state that after making a 

conscientious examination of the record, he has 

determined that the appeal is frivolous; second, he 

must file a brief referring to any issues in the record 

of arguable merit; and third, he must furnish a copy 

of the brief to the defendant and advise him of his 

right to retain new counsel or to himself raise any 
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additional points he deems worthy of the Superior 

Court’s attention.

Santiago, [supra] at 361.

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016)

(some citations and footnote omitted). 

The Anders 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, supra at 361.

In the instant case, counsel has submitted to this Court an Anders brief 

in which she summarized the history of the case, referred to issues in the 

record that she believed arguably supported the appeal, and set forth her

conclusion that the appeal is frivolous, along with citation to supporting 

authority. Counsel has also provided a copy of the letter that she sent to 

Appellant informing him of his right to retain new counsel or proceed pro se, 

to raise any points he deems worthy of this Court’s consideration. 

Accordingly, we conclude counsel has complied with the requirements of 

Anders and Santiago. We, therefore, turn to the issue raised in the Anders

brief and make an independent determination as to whether the appeal is, in 

fact, “wholly frivolous.” Bynum–Hamilton, supra at 184 (citation omitted).

The Anders brief raises the following issue for our review: 
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Does the imposition of a seventeen (17) month thirteen (13) day 

confinement sentence for parole revocation in a simple assault 

case raise a substantial question that the Sentencing Code was 

violated by the sentencing court which imposed the sentences 

after a decision that Appellant failed to meet terms of the court’s 

probation supervision when Appellant was convicted of new 

assault charges and attempting to bring contraband narcotics into 

the Delaware prison? Are such revocation sentences an abuse of 

the sentencing court’s discretion?

(Anders Brief, at 5) (commentary and some capitalization omitted). 

Appellant’s claim challenges the discretionary aspects of his sentence. 

However, this is not a proper argument following a parole revocation. See 

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008). 

. . . Unlike a probation revocation, a parole revocation does 

not involve the imposition of a new sentence. Indeed, there is no 

authority for a parole-revocation court to impose a new penalty. 

Rather, the only option for a court that decides to revoke 

parole is to recommit the defendant to serve the alreadyimposed, original sentence. At some point thereafter, the 

defendant may again be paroled.

Therefore, the purposes of a court’s parole-revocation 

hearing—the revocation court’s tasks—are to determine whether 

the parolee violated parole and, if so, whether parole remains a 

viable means of rehabilitating the defendant and deterring future 

antisocial conduct, or whether revocation, and thus 

recommitment, are in order. The Commonwealth must prove the 

violation by a preponderance of the evidence and, once it does so, 

the decision to revoke parole is a matter for the court’s discretion. 

In the exercise of that discretion, a conviction for a new crime is 

a legally sufficient basis to revoke parole. 

Following parole revocation and recommitment, the proper 

issue on appeal is whether the revocation court erred, as a matter 

of law, in deciding to revoke parole and, therefore, to recommit 

the defendant to confinement. Accordingly, an appeal of a parole 

revocation is not an appeal of the discretionary aspects of 

sentence.
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As such, a defendant appealing recommitment cannot 

contend, for example, that the sentence is harsh and excessive. 

Such a claim might implicate discretionary sentencing but it is 

improper in a parole-revocation appeal. Similarly, it is 

inappropriate for a parole-revocation appellant to challenge the 

sentence by arguing that the court failed to consider mitigating 

factors or failed to place reasons for sentence on the record. 

Challenges of those types again implicate the discretionary 

aspects of the underlying sentence, not the legal propriety of 

revoking parole.

Id. at 290-91 (citations and footnote omitted) (emphasis added). 

Here, as noted, Appellant seeks to challenge the discretionary aspects 

of his sentence by arguing that his sentence is manifestly excessive and 

constitutes too severe a punishment. (See Anders Brief, at 10-11). 

However, because Appellant has no right to raise a discretionary aspects claim

in the context of a parole revocation proceeding, it is frivolous. See Kalichak, 

supra at 290-93.

Moreover, while Appellant could have challenged the propriety of the 

court’s exercise of discretion in revoking parole, see id. at 293, Appellant did 

not preserve such claim by objection during the revocation proceedings or by 

motion thereafter. See Pa.R.Crim.P. 708(E); Pa.R.A.P. 302(a). To the 

contrary, defense counsel expressly stated: “[M]y client would like to ask for 

the parol[e] is going to be revoked [sic]. Obviously, he can’t contest the 

underlying violation, the sentence to the balance of the maximum, 17 months, 

13 days[.]” (N.T. Hearing, 3/29/18, at 8); see also id. at 17 (Appellant 

asking court to “max out” sentence and close out case without further 

supervision). Therefore, any such claim would be frivolous to raise on appeal. 
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Finally, a challenge to the trial court’s ruling to revoke Appellant’s parole 

and recommit him would be frivolous. The trial court explained its decision as 

follows:

[In this case] you got six months, struck [the victim] on the 

back of the head. She tried to fight back. You attempted to choke 

her. She basically groped forward, ran to [the police station]. 

They say she had marks on her arm and throat, consistent with 

her statement. Then I have 17 days later, the new case . . . you 

got basically [the victim] with a group of kids all corroborating 

that you have assaulted her 17 days later. So you have two 

domestic assaults shortly after getting out of prison. [You] have, 

approximately, . . . 19 or 20 convictions over the years. I have 

you sneaking some sort of drugs in the prison. Your conduct in 

prison isn’t good. . . . All you have done is commit new crimes 

and the concern I have is the nature of the crimes. You are lucky 

someone has not been seriously hurt. . . . 

* * *

. . . You have been basically in and out of jail and police stations 

your entire life. . . . When you get mad, you’re taking it out—

you’re grabbing the mother of your children by her hair in front of 

the kids. They’re talking about it with the police. They’re 

describing I saw dad grab mom by the hair and hit her. . . . [Y]ou 

have pretty much checked every box scaring me about what you 

can do some day and what you have done. 

* * *

. . . Even in prison, you’re still committing crimes. That’s a 

problem. That’s a planned design to get around dealing with the 

drug problem. You’re sneaking drugs in the prison. . . . 

* * *

. . . [P]robation has been a complete and total disaster; parol[e]

and probation. You just can’t go out within 17 days and commit 

a new crime of violence when you are in front of me on a crime of 

violence and commit a drug offense. . . .
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(N.T. Hearing, at 10-11, 13-15).

Our review of the record confirms that the trial court properly revoked 

Appellant’s parole and recommitted him to confinement. See Kalichak, 

supra at 290-91. Furthermore, after independent review, we determine that 

there are no other non-frivolous bases for appeal, and this appeal is “wholly 

frivolous.” Bynum–Hamilton, supra at 184 (citation omitted). Therefore, 

we affirm the judgment of sentence. 

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/18