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NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : DYSHAN T. AURSBY, : No. 40 EDA 2014 : Appellant :
Appeal from the Jud gment of Sentence, November 21, 2013, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

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- CR

- 0002354

- 2010

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 03, 2015 This is an appe al from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following appellant’s violation of probation hearing. Appointed counsel, Jennifer A. Santiago, Esq., has filed a petition to withdraw, alleging that the appeal is wholly frivolous, accompanied by an Anders brief. 1 We grant counsel’s withdrawal petition and affirm. The record indicates appellant pled guilty to the charge of possession with intent to deliver on April 19, 2010, and was sentenced to 12 months of
inte rmediate punishment followed by two years of probation. While on probation, appellant was charged and later convicted of attempted murder,

1 See Anders v. California , 386 U.S. 738 (1967), and Commonw ealth v. Santiago , 978 A.2d 349 (Pa. 2009).J. S30020/15

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aggravated assault, robbery, and conspiracy. Appellant was sentenced to an aggregate term of incarceration of 121⁄2 t o 25 years. As a result of these convictions, appellant was found in direct violation of his probation. On November 21, 2013, at a violation of probation hearing, appellant was sentenced to 4 to 8 years of confinement to be served consecutive to his
121⁄2 to 25

- year sentence. Appellant failed to file a post

- sentence motion. However, on December 20, 2013, appellant’s counsel appeared before the trial court seeking reconsideration of appellant’s 4 to 8

- year sentence. The trial court denied reconsideration. (Notes of testimony, 12/20/13 at 3.) Appellant filed an appeal to this court. The trial court ordered appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. After receiving an extension of time, instead of filing a
court

- or dered Pa.R.A.P. 1925(b) statement, appellant’s counsel filed a statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4) onJ. S30020/15

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June 18, 2014. 2 As a consequence of Rule 1925(c)(4) statement of intent, the trial court declined to issue a Pa.R.A.P . 1925(a) opinion. On September 29, 2014, appellant’s counsel filed in this court a motion to withdraw as counsel and an Anders brief, wherein counsel states there are no non

- frivolous issues preserved for our review. “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. Daniels , 999 A.2d 590, 593 (Pa.Super. 2010), citing Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa.Super. 2007) ( en ba nc ) (citation omitted).

In order for counsel to withdraw from an appeal pursuant to Anders , certain requirements must be met, and counsel must: (1) provide a summary of the procedural history and facts, with citations to the record;

2 Rule 1925(c)(4) provides:

In a criminal case, counsel may file of record and serve on the judge a statement of intent to file an [ Anders ] brief in lieu of filing a Statement. If, upon review of the [ Anders ] b rief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court may remand for the filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or both. Upo n remand, the trial court may, but is not required to, replace appellant’s counsel. Pa.R.A.P. 1925(c)(4).J. S30020/15

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- (2) refer to anythi ng 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 fac ts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Id. , quoting Santiago , 978 A.2d at 361. Our review of Attorney Santiago’s application to withdraw, supporting documentation, and An ders brief reveals that she has complied with all of the foregoing requirements. We note that counsel also furnished a copy of the brief to appellant, advised him of his right to retain new counsel, proceed pro se , or raise any additional points that he d eems worthy of this court’s attention, and attached to the Anders petition a copy of the letter sent to appellant as required under Commonwealth v. Millisock , 873 A.2d 748, 751 (Pa.Super. 2005). See Daniels , 999 A.2d at 594 (“While the Supreme Court in Sa ntiago set forth the new requirements for an Anders brief, which are quoted above, the holding did not abrogate the notice requirements set forth in Millisock that remain binding legal precedent.”). As Attorney Santiago has complied with all of the requir ements set forth above, we conclude that counsel has satisfied the procedural requirements of Anders

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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 a n 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. In her Anders brief, counsel points out that there is no dispute that appellant was i n direct violation of his sentence. ( See notes of testimony, 11/23/13 at 4.) The law is clear that once probation or parole has been revoked, a sentence of total confinement may be imposed if any of the following conditions exist: the defendant has been convicted of another crime; the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or such a sentence is essential to vindicate the authority of the court. 42 Pa.C.S.A. § 9771(c); Commonwealth v. McAfee , 849 A.2d 270 (Pa.Super. 2004), appeal denied , 860 A.2d 122 (Pa. 2004). Here, a sentence of total confinement was appropriate since appellant had been convicted of two other crimes. Additionally, we note appellant was sentenced to 4 to 8 years’ incarceration. The maximum sentence appellant could have received was 10 years; consequently, appellant’s sentence was within the statutory limits. The appeal is wholly frivolous, and our independent review of the entire record has not disclosed any oth er potentially non

- frivolous issues.J. S30020/15

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Consequently, we grant counsel’s petition to withdraw, and we affirm the judgment of sentence. Petition to withdraw granted. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 6/3/2015