J

- S36019

- 19

J

- S36020

- 19
NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

CYNTHIA MARIE VILLANUEVA

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1863 MDA 2018 Appeal from the Judgment of Sentence Entered November 2, 2018 In the Court of Common Pleas of Lycoming County Criminal Division at

No(s): CP

- 41

- CR

- 0001403

- 2016

COMMONWEALTH OF PENNSYLVANIA

v.

CYNTHIA M. VILLAN UE VA

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1864 MDA 2018 Appeal from the Judgment of Sentence Entered November 2, 2018 In the Court of Common Pleas of Lycoming County Criminal Division at

No(s): CP

- 41

- CR

- 0001893

- 2016

COMMONWEALTH OF PENNSYLVANIA

v.

CYNTHIA MARIE VILLAN UE VA

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1865 MDA 2018 Appeal from the Judgment of Sentence Entered November 2, 2018 In the Court of Common Pleas of Lycoming County Criminal Division at

No(s): CP

- 41

- CR

- 0002119

- 2015J

- S36 019

- 19

J

- S36020

- 19

- 2

- BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI * , J. MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 08, 2019 In these related cases, Appellant Cynthia Marie Villan ue va appeals from the judgment s of sentence entered November 2, 2018 , following the revocation of her parole and probation

. Appellant ’ s counsel has filed motion s to withdraw and brief s pu rsuant to Anders v. California , 386 U.S. 738 (1967) , and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). After careful review, we affirm the judgment s of sentence and grant counsel ’ s motion s to withdraw. The trial court set forth the following factual and procedural history: By way of background, in [criminal docket number] 2119

- 2015, Appellant was charged with retail theft and receiving stolen property, both misdemeanors of the second degree , for taking $120 worth of merchandise from J.C.Penney on October 27, 2015. On December 28, 2015, Appellant entered a guilty plea to retail theft and was sentenced to 18 months ’ probation. 1

1 Appellant was already serving a sentence of 12 months’ probation fo r retail theft in case 1920

- 2015.
In [criminal docket number] 1403

- 2016 , on August 2, 2 016 , Appellant was charged with retail theft, a felony of the third degree ; false identification to law enforcement , a misdemeanor of the third degree; and possession of a small amount of marijuana, an ungraded misdemeanor for taking $353.40 worth of merchandise from Wal

- Mart, providing a false name to law enforcement officials, and possessi ng 1.2 gr ams of marijuana on July 28, 201 6. On September 1 2 , 2016, Appellant pl ed guilty to these charges.
In [criminal docket number] 1893

- 2016, on October 11, 2016, Appellant was charged with retail theft, a felony of the third

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

- S36 019

- 19

J

- S36020

- 19

- 3

- degree, for taking $39.85 worth of mer chandis e f rom Family Dollar on August 26, 2016. On December 7, 2016, Appellant pled guilty to retail theft in case 1893

- 2016 and the court sentenced her to 18 months ’ probation. The court also sentenced Appellant to a consecutive term of 18 months ’ probation for retail theft in case 1403

- 2016

. The aggregate sentenc e of 36 months ’ probation was to be served consecutive to any sentence Appellant was currently serving. As one of the conditions of Appellant ’ s probation, the court directed Appellant to attend and complete the Drug Court Program. The court also found th at Appellant violated the conditions of her probation in case 2119

- 2015 by committing these new offenses; however, rather than revoke Appellant ’ s probation, the court ordered Appellant to complete the D rug C ourt P rogram. 2

2 As a result of the new offenses committed in 2016, the probationary sentence in 1920

- 2015 was revoked on December 7, 2016 and Appellant was sentenced to 100 days to 2 4 months’ less one day of incarceration at the county pr ison . As Appellant had at least 100 days of credit toward this s entence, she was immediately paroled. Unfortunately, Appellant did not successfully complete the Drug Court Program. Despite escalating sanctions, she continued to violate the condition s of the program. On March 21, 2018, she was removed from the prog ram. On June 21, 2018, the court found that Appellant violat ed the conditions of her probation (and her parole in case 1920

- 2015) by being removed from the Drug Court Program. The court sent Appellant for an evaluation to determine if she was appropriate for the State Intermediate Punishment (SIP) Program. New criminal charges were filed against Appellant after she was sent for the evaluation, 3 so she was either removed from the SIP Program or removed from consideration for the SIP Program and returned to Lycoming County for sentencing.

3 See CP

- 41

- CR

- 0001442

- 2018 and CP

- 41

- CR

- 0001522

- 2018. On November 2, 2018, the court revoked Appellant ’ s probation and resentenced her to 3 to 7 years ’ incarceration in a state correctional institution for retail theft, a felony of the thirdJ

- S36 019

- 19

J

- S36020

- 19

- 4

- degree, under Information 1403

- 2016 ; a concurrent term of 3 to 7 years ’ incarceration for retail theft ; a felony of the third degree, under I nformation 1893

- 2016; an d a concurrent term of 1 to 2 years ’ incarceration for retail theft, a misdemeanor of the second degree, under Information 2119

- 2015. [Although Appellant was on parole at case number 1920

- 2015, her parole expired on August 18, 2018, and the trial court too k no action under that number following the November 2, 2018 hearing .] On November 13, 2018, Appellant filed a post sentence motion , in which she asserted that her sentence was excessive and unreasonable, and a notice of appeal. The court summarily denie d the post sentence motion on November 28, 2018. The court did not order Appellant to file a concise statement of errors complained of on appeal ... . Trial Court Opinion, 3/15/19, at 1

– 3. On February 28, 201 9 , this Court sua sponte consolidated the ap peals at docket numbers 1863 MDA 2018 and 1864 MDA 2018. Order, 2/28/1 9

. Upon our review, we have consolidated said appeals with the appeal at docket number 18 6 5 MDA 2018. Before we reach the merits of the appeal, we address two order s to show cause, filed on February 28, 2019. Therein, this Court asked Appellant to show cause why her appeal should not be quashed for failing to comply with Commonwealth v. Walker , 185 A.3d 969 , 971 (Pa. 2018) (holding that

“ where a single order resolve s issues arising on more than one docket, separate notices of appeal must be filed for each case ” and finding failure to comply will result in quashal of the appeal ). In response to the orders to show

cause , Appellant averred that she filed an identical no tice of appeal to each docket and each notice listed the three dockets from which she was appealing ;J

- S36 019

- 19

J

- S36020

- 19

- 5

- thus, her only error was a failure to individualize the caption on each notice of appeal. 1 Memorandum s to Show Cause, 3/7/19.
T his Court recently filed its decision in C ommonwealth v. Creese , __ A.3d __, __, 2019 PA Super 241, *2 (Pa. Super. filed August 14, 2019) . In that case, this Court found that an appellant that filed four identical notices of appeal at each docket did not comply with Walker because each notice of appeal contained all the docket numbers from which the appeals were taken. Creese , __A.3d at __. 2019 PA Super at *2

. Specifically, the Court found that Walker requires that each notice of appeal contain only one docket number. Id

. Thus, despite filing a separate notice of appeal at each docket, we are constrained to find that Appellant has f a iled to satisfy Walker and its
progeny. Although Appellant failed to comply with the dictates of Walker and Creese , we find that error is du e to a breakdown in the court system

. Indeed,

a fter a review of the certified record, we note that when Appellant was sentenced, the trial court informed her that i f she wanted to “ file an appeal of this sentence ,” that appeal must be filed with in thirty days. N.T. (Sentencing), 11/2/18, at 26 (emphases added). The trial court further stated, “ Any appeal has to be filed within 30 days of this date. It’s limited to

_________________ __________ ______ ____ _______ 1 In this case, although Appellant filed identical notices of appeal at each docket, each notice was filed with the appealed from docket highlighted to indicate the docket from which the appeal was taken.J

- S36 019

- 19

J

- S36020

- 19

- 6

- what you can file an appeal on. You may also file a ten

- day post

- sentence motion but your appeal still has to be filed within 30 days.” Id (emphases added)

. In making th ese statement s , the trial court essentially told Appellant that there was one order from which she could appeal , despite the fact that she was being sentenced at three separ ate dockets , 1863 EDA 2018, 1864 EDA 2018, and 1865 EDA 2018

. 2 The trial court’s inaccurate statement that Appellant could file a single appeal from the sentence s at three different dockets constitutes a breakdown of court operations such that the resulta nt defect in the notices of appeal may be overlooked. See Commonwealth v. Stansbury , __A.3d__, 2019 PA Super 274, (Pa. Super. filed September 5, 2019) (finding that appellant’s failure to comply with Walker would be overlooked where a breakdown in the cou rt system occurred where trial court misinformed the appellant that they may file “a written notice of appeal” although appellant was se ntenced at two criminal dockets )

. We thus decline to quash Appellant ’ s appeal s for failure to comply with the dictates of Walker

. In these related and consolidated appeals, w e must address the motion s to withdraw filed by Appellant ’ s counsel before we reach the merits of the appeal s . Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa. Super.

_________________ __________ ______ ____ _______ 2 We note that the certified records for these appeals contain only one copy of the sentencing hearing, which occurred on November 2, 2018 , despite the fact th at Appellant was sentenced at three different dockets. There is also only one written sentencing order, which lists the above three docket numbers, as well as criminal docket number 1920

- 2015, in the caption.J

- S36 019

- 19

J

- S36020

- 19

- 7

- 2013) ( en banc ). Before being permitted to withdraw from representation, counsel must satisfy certain procedural and substantive requirements: Counsel must: 1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel h as 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 the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court ’ s attention. Id . (citing Common wealth v. Lilley , 978 A.2d 995, 997 (Pa. Super. 2009) )

. Herein, counsel ’ s motion s to withd raw state that she has conducted a careful and thorough review of the record, Appellant ’ s file, and applicable case law and has determined the issue is meritless. Moti on s to Withdraw, 5/1/19, at 2. Counsel also attached a copy of the letter s she sent to Appellant, in which counsel advised Appellant that she could retain private counsel or
p roceed pro se . Id . at exhibit A. Finally, we note that counsel attached a copy of the Anders brief s to her letter s ; thus, we find the procedural mandates for withdraw a l have been satisfied. Moving to the substantive dictates for withdrawal , counsel ’ s Anders brief s must meet the following dictates: in 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 anyth ing 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 conclusi on that the appeal is frivolous.J

- S36 019

- 19

J

- S36020

- 19

- 8

- Cartrette , 83 A.3d at 1032 (citing Santiago , 978 A.2d at 361))

. In the
instant case, counsel has filed Anders brief s that contain the history and facts of the case, make references to the facts which support Appellant ’ s appeal, and set forth counsel ’ s conclusion that the appeal is of no merit , as well as the reasoning behind that conclusion. Appellant has not filed any response.
Accor dingly, we find counsel has complied with the procedural and substantive requirements of Anders and Santiago ; thus, we turn to the merits of the appeal s . In support of these appeal s , counsel has identified the following single issue Appellant believes entitles her to relief: Whether the probation violation sentence of the court was unreasonable and excessive a) when you consider the sentencing code as a whole; b) when the sentence was greater than that requested [by] the probation office; c) when the co urt did not consider additional drug treatment options; d) when the court did not consider a county sentence; and e) when the court did not give weight to the positive things Appellant ha d done on probation. Anders Brief s at 11. Because Appellant argues that the trial court imposed an excessive and unreasonable sentence, that argument implicates the discretionary aspect of Appellant ’ s sentence. Commonwealth v. Roberts , 133 A.3d 759, 774 (Pa. Super. 2016). On appeal, th e scope of review in an appeal foll owing a sentence imposed after probation revocation is limited to the valid ity of the revocation proceedings , the legality of the sentence imposed following revocation , and the discretionary aspects of sentencing

. Cartrette , 83 A.3d at 1033

– 34;J

- S36 019

- 19

J

- S36020

- 19

- 9

- Commonweal th v. Ortega , 995 A.2d 879, 883

– 84 (Pa. Super. 2010)

. The right to appeal the discretionary aspects of a sentence is not automatic. Cartrette , 83 A.3d at 1042

. A party must include a Pa.R.A.P. 2119(f)
statement se tting forth the reasons relied upon for allowance of appeal. Commonwealth v. Zeigler , 112 A.3d 656, 661 (Pa. Super. 2015). An

a ppellant must persuade this Court that “ there exists a substantial question that the sentence is inappropriate under the sentencing code. ” Commonwealth v. Kalichak , 943 A.2d 285, 289 (Pa. Super. 2008). In the instant case, App ellant included a Pa.R.A.P. 2119(f) statement in both briefs . In the statements , Appellant avers that her sentence was unreasonable and excessive under the sentencing code as a whole becaus e the court sentenced her for more time than the probation office requested and because the sentencing court failed to consider additiona l drug treatment options, a county sentence, and all the positive things Appellant had done on probation. Anders Brief s at 7

. An excessiveness claim alone does not raise a substantial question; however, an excessiveness claim in conjunction with an assertion that the sentencing court did not consider mitigating factor s may present a substantial question. Zeigler , 112 A. 3d at 662. Here , Appellant asserts that the trial court’s sentence is excessive and that the trial court failed to consider her rehabilitative needs and good behavior while on probation; thus, we find Appellant has raised a substantial question. Our stand ard of review is well settled. We have explained:J

- S36 019

- 19

J

- S36020

- 19

- 10

- The 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 abus e 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 . Simmons

, 56 A.3d 1280, 1283

– 84 (Pa. Super. 2012). Commonwealth v. Colon , 102 A.3d 1033, 1043 (Pa. Super. 2014). “ Upon revocation the sentencing alternatives available to the court shall be the same as were available at the t ime of initial sentencing...

. ” 42 Pa.C.S § 9771(b). The Lycoming County Adult Probation Office recommended that Appellant’s probation should be revoked and she should be sentenced to an aggregate term of two

- and

- one - half years to six years of incarceration. N.T., 11/2/19, at 15. 3 T he court se ntenced Appellant to three to sev en years of incarceration at docket number 140

- 20 16, for retail theft, which was graded

as a third degree felony. Order, 11/2/18. She was also sentenced to three to seven years of incarceration at docket num ber 1893

- 2016, also graded as

a third degree felony conviction for retail theft. Id . Finally, the court sentenced her to one to two years of incarceration at docket number 2119

- 2015, which was a second

- degree misdemeanor, for retail theft

. Id . The

_________________ __________ ______ ____ _______ 3 Specifically, the probation office recommen ded Appellant receive two to five years of incarceration at docket numbers 140 3

- 2016 and 1893

- 2016, to be served concurrently , and a term of incarce ration of six to twelve months of incarceration at 2119

- 2015, to be served consecutively. N.T., 11/2/18, at 15.J

- S36 019

- 19

J

- S36020

- 19

- 11

- court ordered the sentences to run concurrently ; thus, Appellant ’ s aggregate sentence was three to seven years of incarceration. Upon review, we discern no abuse of discretion in the trial court ’ s decision to impose a sentence of three to seven years of incarceration following revocation of Appellant ’ s probation. Preliminarily, we note that the maximum sentence for a third degree felony is seven years of incarceration and the maximum sentence for a second degree misdemeanor is one to two years of incarce rat i on . T hus , Appellant was sentenced within the statutory limits. See 1 8 Pa.C.S. §§ 1103( 3 ), 1104(2). Moreover, Appellant’s argument that the sentencing court abused its discretion because Appellant ’ s sentence is above the recommendation of the parole office does not merit relief

. See Commonwealth v. Schueg , 582 A.2d 1339, 1341 (Pa. Super. 1990) ( noting that the trial judge has broad discretion in the formulation of a proper sentence, and the court may not delegate that authority to any person or
grou p)

. To the extent Appell ant argues that the trial court’s sentence was excessive and unreasonable because the trial court did not consider additional drug treatment option s , a review of the record s in th ese case s , and particularly the sentencing transcr ipt dated November 2, 2018, makes clear that Appe llant had been given numerous opportunities to receive treatment for her drug use. Indeed, Appellant had previously been placed in the Drug Court Program but was removed for numerous violation s. N.T., 11/2 /18, at 3. In addition to theJ

- S36 019

- 19

J

- S36020

- 19

- 12

- Drug Court Program, Appellant was provided structured intensive outpatient counseling and had a certified recovery specialist assigned to her. Id . at 7. Appellant also was o ffered continued counseling, medication, and the opportunity to seek in

- patient drug treatment, which she refused. Id . at 9

– 10. Given the above, the trial court did not abuse its discretion in failing to consider other drug treatment option s . Similarly, Appe llant ’ s argument that the trial court ’s sentence was unreasonable and excessive because the court failed to consider county incarceration is equally flawed . A s the trial court noted in its opinion, Appellant received short periods of county incarceration as Drug

- Court

- Program sanctions, and Appellant was sentenced to 100 days to twenty

- four months of county incarceration after an earlier probation revocation. Trial Court Opinion, 3/15/1 9 , at 7. Despite serving time in county incarceration, Appellant
cont inued to violate the conditions of both her parole and probation following her release

. Id . The trial court did not abuse its discretion by failing to consider county incarceration following her repeated failures to comply with the terms of her probation

. Finally , Appellant argues that her sentence was excessive because the trial court failed to consider the positive things Appellant had done on probation. As the trial court stated in its opinion, Appellant ’ s record on probation is abysmal. Trial Cour t Opinion, 3/15/1 9 , at 8. Indeed, despite being placed in the Drug Court Program, the State Intermediate PunishmentJ

- S36 019

- 19

J

- S36020

- 19

- 13

- program, and being afforded a host of other opportunities, Appellant continued to violate her probation. W hen asked if she had anything to say on her behalf, Appellant admitted , “ Instead of using the resources that I had in my corner I turned to the same people and things that brought me into trouble with the law in the first place, so I accept my accountability and any consequences that come my way. ” N.T., 11/2/18, at 20. Given the paucity of evidence of any positive action Appellant took while on probation, the trial court did not abuse its discretion. Appellant ’ s issue does not merit relief. Further , this Court has conducted an inde pendent review of the record s and finds that no non

- frivolous issues exist. See Commonwealth v. Vilsaint , 893 A.2d 753, 755 (Pa. Super. 2006) (“ Part and parcel of Anders is our Court's duty to review the record to insure no issues of arguable merit have b een missed or misstated. ”) Judgment s of sentence a ffirmed. Motion s to withdraw as counsel granted.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/8/2019