J-S63043-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA,

Appellee

v.

VINCENT ANDREW WILSON,

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 

 No. 1738 EDA 2019

Appeal from the Judgment of Sentence Entered May 15, 2019

in the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0002582-2017

BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 17, 2020

Vincent Andrew Wilson (Appellant) appeals from the May 15, 2019

judgment of sentence entered following the revocation of his parole.

Appellant’s counsel has filed a petition to withdraw and a brief 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.

We glean the following facts from the record. On April 12, 2017, a 

criminal complaint was filed against Appellant, charging him with receiving 

stolen property, unauthorized use of a motor vehicle,1 and possession of 

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1 This charge was subsequently withdrawn.
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marijuana. On May 11, 2017, Appellant entered into a negotiated guilty plea 

and agreed to plead guilty to receiving stolen property in exchange for a 

sentence of 6 to 23 months of incarceration and the payment of restitution. 

Appellant was sentenced accordingly on the same day.2 Appellant was 

paroled to an address in the state of Delaware in October 2017. N.T., 

5/15/2019, at 6. He was arrested at least two times in Delaware after his 

release. Id. at 7.

Thus, on February 9, 2018, a bench warrant was issued for Appellant 

for violating several terms of his parole in the instant case. A Gagnon I3

hearing was held on April 2, 2018. On May 15, 2019,4 a Gagnon II hearing 

was held, where Appellant stipulated to the parole violations. N.T., 

5/15/2019, at 4. The revocation court revoked Appellant’s parole and 

sentenced him to his full backtime of 390 days of incarceration. Id. at 7.

Appellant did not file a post-sentence motion, and timely filed a notice 

of appeal. The revocation court ordered Appellant to file a Pa.R.A.P. 1925(b) 

statement, and in lieu thereof, on July 2, 2019, counsel for Appellant filed a 

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2 Appellant received credit for time served from April 12, 2017, to the date 

of sentencing. Thus, his maximum sentence would expire on March 12, 

2019.

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (outlining the procedure for 

the revocation of probation and parole).

4 Although the record is not entirely clear as to why there was such a long 

delay between hearings, it appears the delay was related to the fact that 

Appellant was serving a sentence in the state of Delaware.
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statement of intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4). The 

revocation court declined to file a responsive opinion, citing counsel’s notice 

of intent to file an Anders brief. See Revocation Court Opinion, 7/8/2019.

Appellant’s counsel filed both an Anders brief and a petition to 

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

of this matter.

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 nonfrivolous 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). Our Supreme Court has clarified portions of the Anders

procedure:
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[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.

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

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

technical requirements set forth above.5 Therefore, we now have the 

responsibility “to conduct a simple review of the record to ascertain if there 

appear on its face to be arguably meritorious issues that counsel, 

intentionally or not, missed or misstated.” Commonwealth v. Dempster, 

187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

We begin with the issue set forth by counsel, which counsel avers may 

arguably support an appeal: “[w]hether the term of full backtime imposed 

herein, instead of a sentence of time served, is harsh and excessive under 

the circumstances due to its adverse impact on his sentence in the state of 

Delaware involving treatment for his serious drug addiction.” Anders Brief

at 3 (capitalization altered). Because this issue involves a challenge to the 

discretionary aspects of Appellant’s sentence, we bear in mind the following.

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5 Appellant has not filed a response to counsel’s petition.
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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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014) 

(some citations omitted).

Here, Appellant timely filed a notice of appeal. However, our review of 

the record reveals that Appellant did not properly preserve this issue at 

sentencing or by filing a post-sentence motion. Accordingly, Appellant has 

not preserved this issue for our review, and he is not entitled to relief. See 

Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010) (stating 

that an appellant waives for appeal issues challenging the discretionary 

aspects of his sentence where he does not raise them at sentencing or in a 

post-sentence motion).

We now conduct a “simple review of the record,” Dempster, 187 A.3d 

at 272, and in doing so point out that the instant case involves the 

revocation of parole, which we consider mindful of the following.
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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 already-imposed, 

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. 

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)

(internal citations omitted).

Instantly, Appellant stipulated to the violations of his parole. N.T., 

5/15/2019, at 4. Moreover, at the Gagnon II hearing, the revocation court 

pointed out that Appellant was convicted of new crimes in Delaware, which is 

a legally sufficient justification to recommit Appellant. See Kalichak, supra. 

Thus, any challenge to the revocation of parole or recommitment to serve 

backtime is without merit.
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Based upon the foregoing, we agree with counsel that a challenge to 

the discretionary aspects of Appellant’s sentence is frivolous. Additionally, 

“[a]fter conducting a full examination of all the proceedings as required 

pursuant to Anders, we discern no non-frivolous issues to be raised on 

appeal.” Dempster, 187 A.3d at 273. 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: 1/17/20