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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CYNTHIA MARIE VILLANUEVA 

Appellant

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 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. VILLANUEVA 

Appellant

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 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 VILLANUEVA 

Appellant

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 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-0002119-2015
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BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 08, 2019

In these related cases, Appellant Cynthia Marie Villanueva appeals from 

the judgments of sentence entered November 2, 2018, following the 

revocation of her parole and probation. Appellant’s counsel has filed motions

to withdraw and briefs pursuant 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 judgments of sentence and grant counsel’s 

motions 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 for retail theft in case 1920-2015.

In [criminal docket number] 1403-2016, on August 2, 2016, 

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 possessing 1.2 grams of marijuana on 

July 28, 2016. On September 12, 2016, Appellant pled 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 

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*

 Retired Senior Judge assigned to the Superior Court.
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degree, for taking $39.85 worth of merchandise from 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 sentence 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 that 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 Drug Court Program.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 24 months’ less one day of incarceration at the county 

prison. As Appellant had at least 100 days of credit toward 

this sentence, she was immediately paroled. 

Unfortunately, Appellant did not successfully complete the 

Drug Court Program. Despite escalating sanctions, she continued 

to violate the conditions of the program. On March 21, 2018, she 

was removed from the program.

On June 21, 2018, the court found that Appellant violated

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 third 
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degree, under Information 1403-2016; a concurrent term of 3 to 

7 years’ incarceration for retail theft; a felony of the third degree, 

under Information 1893-2016; and 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 took 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 

denied 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, 2019, this Court sua 

sponte consolidated the appeals at docket numbers 1863 MDA 2018 and 1864 

MDA 2018. Order, 2/28/19. Upon our review, we have consolidated said 

appeals with the appeal at docket number 1865 MDA 2018. 

Before we reach the merits of the appeal, we address two orders 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 resolves 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 notice of appeal to each 

docket and each notice listed the three dockets from which she was appealing; 
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thus, her only error was a failure to individualize the caption on each notice of 

appeal.1 Memorandums to Show Cause, 3/7/19. 

This Court recently filed its decision in Commonwealth 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 failed to satisfy Walker and its 

progeny.

Although Appellant failed to comply with the dictates of Walker and 

Creese, we find that error is due to a breakdown in the court system. Indeed, 

after a review of the certified record, we note that when Appellant was 

sentenced, the trial court informed her that if she wanted to “file an appeal

of this sentence,” that appeal must be filed within 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 

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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. 
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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 these statements, 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 separate 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 sentences at three different 

dockets constitutes a breakdown of court operations such that the resultant 

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 court system occurred where trial court 

misinformed the appellant that they may file “a written notice of appeal” 

although appellant was sentenced at two criminal dockets). We thus decline 

to quash Appellant’s appeals for failure to comply with the dictates of Walker. 

In these related and consolidated appeals, we must address the motions

to withdraw filed by Appellant’s counsel before we reach the merits of the 

appeals. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 

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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 that 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.
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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 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 the right to retain private counsel or 

raise additional arguments that the defendant deems worthy of 

the court’s attention.

Id. (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009)). 

Herein, counsel’s motions to withdraw 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. Motions to Withdraw, 5/1/19, 

at 2. Counsel also attached a copy of the letters she sent to Appellant, in 

which counsel advised Appellant that she could retain private counsel or 

proceed pro se. Id. at exhibit A. Finally, we note that counsel attached a 

copy of the Anders briefs to her letters; thus, we find the procedural 

mandates for withdrawal have been satisfied. 

Moving to the substantive dictates for withdrawal, counsel’s Anders

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

instant case, counsel has filed Anders briefs 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. 

Accordingly, we find counsel has complied with the procedural and substantive 

requirements of Anders and Santiago; thus, we turn to the merits of the 

appeals.

In support of these appeals, 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 court 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 had done on 

probation.

Anders Briefs 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, the scope of review in an appeal following a sentence 

imposed after probation revocation is limited to the validity 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; 
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Commonwealth 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 setting forth the reasons relied upon for allowance of appeal. 

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015). An 

appellant 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, Appellant 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 because 

the court sentenced her for more time than the probation office requested and 

because the sentencing court failed to consider additional drug treatment 

options, a county sentence, and all the positive things Appellant had done on 

probation. Anders Briefs 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 factors 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 standard of review is well settled. We have explained:
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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 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. 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 time 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 The court sentenced Appellant to three to seven years of 

incarceration at docket number 140-2016, 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 number 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 

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3

 Specifically, the probation office recommended Appellant receive two to five 

years of incarceration at docket numbers 1403-2016 and 1893-2016, to be 

served concurrently, and a term of incarceration of six to twelve months of 

incarceration at 2119-2015, to be served consecutively. N.T., 11/2/18, at 15.
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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 incarceration. Thus, Appellant was sentenced within the statutory 

limits. See 18 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 

group). 

To the extent Appellant argues that the trial court’s sentence was 

excessive and unreasonable because the trial court did not consider additional 

drug treatment options, a review of the records in these cases, and particularly 

the sentencing transcript dated November 2, 2018, makes clear that Appellant 

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 violations. N.T., 11/2/18, at 3. In addition to the 
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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 offered 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 options. 

Similarly, Appellant’s argument that the trial court’s sentence was 

unreasonable and excessive because the court failed to consider county 

incarceration is equally flawed. As 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, 

3/15/19, at 7. Despite serving time in county incarceration, Appellant 

continued 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 Court Opinion, 3/15/19, at 8. Indeed, despite 

being placed in the Drug Court Program, the State Intermediate Punishment 
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program, and being afforded a host of other opportunities, Appellant 

continued to violate her probation. When 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 independent review of the records 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 been 

missed or misstated.”)

Judgments of sentence affirmed. Motions to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/8/2019