J-S42031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

GREG SELNER

 Appellant No. 1628 WDA 2015

Appeal from the Judgment of Sentence September 16, 2015

in the Court of Common Pleas of Jefferson County Criminal Division

at No(s): CP-33-CR-0000500-2013

BEFORE: SHOGAN, OTT, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 16, 2016

Appellant, Greg Selner, appeals from the judgment of sentence 

entered in the Jefferson County Court of Common Pleas following the 

revocation of his probation. Appellant’s counsel (“Counsel”) has filed a 

petition to withdraw and an Anders/Santiago1 brief. We affirm and grant 

Counsel’s petition to withdraw. 

On January 3, 2014, Appellant originally entered a negotiated plea to 

one count of receiving stolen property.2 That same day, the trial court 

 

*

Former Justice specially assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).

2 18 Pa.C.S. § 3925(a). Appellant stole a laptop computer and other items 

from the home of his son’s mother. Aff. of Probable Cause, 6/5/13, at 1. 

The offense was graded as a first-degree misdemeanor.
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imposed an agreed-upon sentence of five years’ probation. Sentencing 

Order, 1/3/14. 

According to the Jefferson County Adult Probation Department, 

Appellant was arrested in Clearfield County on February 15, 2014, for theft 

by unlawful taking. On May 6, 2014, Appellant was again arrested in 

Clearfield County for multiple counts of forgery and theft by unlawful taking, 

as well as one count of receiving stolen property. Appellant pleaded guilty to 

the Clearfield County charges on April 21, 2015, and the Clearfield County 

court imposed an aggregate sentence of three to twelve months’ 

imprisonment with a one-year probationary tail. 

The Jefferson County Probation Department filed a petition to revoke 

Appellant’s probation on May 18, 2015, based on the new charges in 

Clearfield County. On June 5, 2015, Counsel entered his appearance on 

behalf of Appellant. Appellant admitted the probation violation on June 17, 

2015, and the trial court ordered a psychiatric evaluation for sentencing. 

The trial court conducted a sentencing hearing on September 16, 

2015. After reviewing the court-ordered psychiatric evaluation,3the court 

determined that Appellant was a threat to the community and the county 

lacked adequate resources to address his mental health issues. N.T., 

9/16/15, at 6-7. The court revoked Appellant’s probation and sentenced him 

 

3 A copy of the psychiatric evaluation was not included in the record 

transmitted to this Court. 
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to two to five years’ imprisonment in a state correctional facility, to run 

consecutively to the Clearfield County sentence. Id. The court set a RRRI 

minimum of 18 months and ordered credit for 129 days 

On September 30, 2015, Appellant filed a motion to modify the 

sentence nunc pro tunc. The trial court denied the motion “in its entirety” 

on the following day. Order, 10/1/16. Appellant timely appealed within 

thirty days of the sentence following revocation and complied with the 

court’s order to submit a Pa.R.A.P. 1925(b) statement. The court filed a 

responsive Rule 1925(a) opinion suggesting that its sentence was proper.

Appellant’s counsel has filed a petition to withdraw and an 

Anders/Santiago brief that identifies the following issue for review: 

Whether the trial court abused its discretion when it 

revoked Appellant’s probation/parole and re-sentenced him 

to serve a sentence of incarceration in the State 

Correctional Institution for a minimum of two (2) years to 

a maximum of five (5) years with credit for time served for 

[A]ppellant’s violation of probation/parole[?]

Anders/Santiago Brief at 4. Appellant has not filed an additional brief.

Preliminarily, we must assess whether counsel’s petition and brief 

meet the procedural requirements for seeking leave to withdraw. 

Commonwealth v. Zeigler, 112 A.3d 656, 659 (Pa. Super. 2015). When 

requesting to leave to withdraw,

[c]ounsel must: 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) furnish a copy of the brief to the 

defendant; and 3) advise the defendant that he or she has 
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the right to retain private counsel or raise additional 

arguments [pro se] that the defendant deems worthy of 

the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en 

banc) (citation omitted).

Additionally, our Supreme Court has set forth the following 

requirements for the brief accompanying counsel’s petition to withdraw:

[C]ounsel 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.

Instantly, Counsel has stated that he made a conscientious 

examination of the record and concluded an appeal is frivolous. See Mot. to 

Withdraw, 3/2/16, at 1-2. Counsel has provided a copy of his 

Anders/Santiago brief to Appellant and advised him of his rights to raise 

any additional points in this appeal by proceeding pro se or with private 

counsel. See id. at 2; Letter from Counsel to Appellant, 3/1/16. Counsel’s 

brief has set forth the reasons for his conclusion that the appeal is frivolous.4 

 

4 Counsel explained: 
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See Anders/Santiago Brief at 9. Thus, Counsel has complied with the 

procedural requirements for seeking withdrawal, and we will review 

Counsel’s assessment that Appellant’s intended sentencing claims are 

frivolous. See Zeigler, 112 A.3d at 659. 

Counsel outlines five arguments. First, the sentence was “manifestly 

unreasonable.” Anders/Santiago Brief at 8. Second, the court’s statement 

of reasons for the sentence imposed was not adequate. Id. at 9. Third, 

Appellant explained that he was not taking his medications when he 

committed the Clearfield County offenses and needed the money to 

purchase his medications. Id. at 8. Fourth, Appellant averred that he would 

not pose a threat to the community if he took his medications. Id. Fifth, a 

 

Counsel . . . disagrees [with Appellant’s arguments], 

and avers that the conviction for new charges justified the 

sentence imposed. 

. . . the sentence imposed should call for 

confinement that is consistent with the protection of 

the public, the gravity of the offense as it relates to 

the impact of the victim and on the community, and 

the rehabilitative needs of the defendant. . . . .

[42 Pa.C.S. § 9721(b)]

Counsel . . . further avers that the sentence was not 

manifestly unreasonable given the gravity of the 

underlying offense and the violations, and the 

rehabilitative needs of [A]ppellant. 

Anders/Santiago Brief at 9. Although set forth in boilerplate fashion, we 

find Counsel’s stated reasons are adequate under the circumstances of this 

appeal.
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county sentence would have been sufficient, and the court failed to consider 

local alternatives for Appellant’s rehabilitation. Id. 

It is well settled that 

[c]hallenges to the discretionary aspects of 

sentencing do not entitle an appellant to appellate 

review as of right. Prior to reaching the merits of a 

discretionary sentencing issue:

[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. [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.[ ] § 

9781(b).

Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing 

hearing or raised in a motion to modify the sentence 

imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some 

citations and punctuation omitted).

Appellant adequately preserved these issues and arguments at the 

sentencing hearing, in his motion to modify nunc pro tunc,

5

and in his Rule 

 

5 Although Appellant’s motion to modify his sentence was not timely filed, 

we discern no basis suggesting that the trial court intended to deny his 

request to accept the motion nunc pro tunc. 
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1925(b) statement.6 However, Appellant’s bald claims generally do not 

raise substantial questions warranting further review. See Commonwealth 

v. Haynes, 125 A.3d 800, 807-08 (Pa. Super. 2015), appeal denied, 140 

A.3d 12 (Pa. 2016) 

In any event, we note that:

[t]he imposition of sentence following the revocation of 

probation is vested within the sound discretion of the trial 

court, which, absent an abuse of that discretion, will not be 

disturbed on appeal. An abuse of discretion is more than 

an error in judgment—a sentencing court has not abused 

its discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will.

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (citation 

omitted). 

Instantly, the trial court set forth its reasons for the sentence during 

the following exchange:

THE COURT: [to Appellant: D]o you wish to make a 

statement?

[Appellant]: Sir, I wasn’t on my meds. That’s a very 

big deal with someone with mental health issues. I made 

bad choices because of that. I have nobody to blame but 

myself, but I ask you to look into that, that those things 

had a huge impact on what I did. They wouldn’t have 

happen if I would have been on my meds. I can go times 

without doing anything. And it doesn’t excuse what I did 

but explains why it happened. And I just ask you to give 

me grace and give me another shot. I can do this.

 

6 Additionally, Counsel included in his Anders/Santiago brief an 

abbreviated Pa.R.A.P. 2119(f) statement. 
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THE COURT: Well, looking at the psychological 

evaluation, which I went through in detail, actually even 

before you were brought back, because it was mailed to 

me when you were on your way back, you’re having 

hallucinations, auditory hallucinations, and psychiatrically 

hospitalized seven times. Visual hallucinations, things that 

I wasn’t expecting and things that I don’t believe our 

mental health community in the county or in this area has 

the ability to care for on a local level.

So you did commit new charges. That calls for a total 

confinement sentence. I am going to revoke your 

probation and sentence you to no less than—

[Appellant]: Can I say one more thing, sir? My ex-wife 

passed away in July. I have a daughter who needs me 

right now, and that has been a problem. 

THE COURT: Under your present mental state, you can’t 

care for her. So two to five years consecutive to Clearfield 

with RRRI eligible at 18 months. And I’m going to 

recommend in the order that you be placed in a 

therapeutic community and in the Department of 

Corrections.

[Appellant]: The state doesn’t have the where with all 

[sic], the care for me either at the jail.

THE COURT: Well, at least they’ll keep the community 

safe, which I cannot ensure. You committed new crimes. 

You’re making your excuses.

[Appellant]: I’m not making excuses, sir.

THE COURT: Yes, you are. Don’t say you didn’t. That’s 

what you wanted.

N.T. at 5-7.

In its Pa.R.A.P. 1925(a) opinion, the trial court further explained: 

As the record reflects, [Appellant] received a new 

conviction while on probation in Jefferson County, and 

pursuant to 42 Pa.C.S.[ ] § 9771(c), that fact alone 
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warranted a sentence of total incarceration. His 

conviction, however, was not the only relevant 

consideration.

Aware that [Appellant]’s mental health was an issue, 

the [c]ourt ordered a psychiatric and psychological 

evaluation to help it determine the most appropriate 

sentence in this case, and as Chief Probation Officer [Paul] 

Ruffner observed, it revealed that [Appellant]’s condition 

was more severe than anyone had realized—more severe, 

in fact, than what our local mental health community could 

adequately treat. By his own admission, it had already led 

him to commit theft-related offenses other than that for 

which he was being supervised in this county, though he 

attempted to mitigate his culpability by claiming that he 

committed them “because he was in need of money and 

couldn’t afford his medication [and] was not on his 

medication at the time.” He would not have committed 

them, he claimed, had he been taking his medication.

Even were the [c]ourt to accept that [Appellant]’s then 

untreated mental illness was to blame for his decisions to 

commit the offenses underlying his February 15, 2014 and 

May 6, 2014 arrests, that would not change the fact that 

our local mental health community’s inability to effectively 

treat his illness would make him a continuing threat to our 

citizens. Nor would it change the fact that he was more 

interested in using his diagnosis as an excuse for his 

criminal conduct than in receiving the treatment that 

would alleviate his psychiatric symptoms. While

[Appellant] would doubtlessly disagree with that 

assessment, the proof lay in the fact that he clearly used 

the proceeds of the February arrest for something other 

than the medication he claimed would have curbed his 

criminality. The [c]ourt is less than confident, therefore, 

that he would continue to comply with the limited 

treatment regimen locally available to him if given the 

opportunity. Consequently, the [c]ourt is less than 

confident that the community would be safe were 

[Appellant] not committed to a facility where he could 

receive the necessary mental health services or, even if he 

chose to decline those services, would be unable to further 

victimize society.
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Trial Ct. Op., 12/15/15, at 1-2. 

Thus, we agree with Counsel that there is no record support for 

Appellant’s assertion that the trial court’s statement of reasons for the 

sentence was inadequate. Moreover, the trial court expressly found that 

Appellant was using his mental health condition as an excuse and Jefferson 

County did not have adequate resources to address Appellant’s mental 

health condition while keeping the community safe. In light of the 

foregoing, we discern no basis in the record or the law supporting 

Appellant’s request for relief based on an excessive or manifestly 

unreasonable sentence or an abused its discretion by the trial court. 

Accordingly, having reviewed the claims and arguments set forth in 

Counsel’s Anders/Santiago brief in light of the record, we are constrained 

to agree that this appeal is frivolous. As our independent review reveals no 

other non-frivolous issues, we affirm the judgment of sentence and grant 

Counsel’s petition to withdraw. 

Judgment of sentence affirmed. Counsel’s petition to withdraw 

granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2016