J-S73002-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PATRICK MICHAEL MERRICK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1875 MDA 2018

Appeal from the Judgment of Sentence Entered October 3, 2018

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0000185-2017

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 11, 2020

Appellant, Patrick Michael Merrick, appeals from the judgment of 

sentence entered in the Court of Common Pleas of Luzerne County on 

October 3, 2018. In addition, Appellant’s counsel has filed a petition to 

withdraw his representation and a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009). After careful review, we grant counsel’s petition to withdraw and affirm 

Appellant’s judgment of sentence.

The trial court summarized the procedural history of this case as follows:

On September 7, 2017, the court accepted [Appellant’s] guilty 

plea to count one, Retail Theft, 18 Pa. [C.S. §] 3929(A)(1), a 

misdemeanor of the first degree (M-1). [Appellant] was 

immediately sentenced to probation for eighteen (18) months 

which was [o]rdered to run concurrent to any sentence he was 

then currently serving.
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[Appellant’s] probation was supervised by the Pennsylvania 

Board of Probation and Parole. By letter dated September 5, 

2018, his supervising probation agent forwarded to the court a 

document titled “Notice of Charges and Hearing” which alleged 

that he violated the conditions of his probation. Subsequent to 

that, [Appellant] waived his Gagnon I hearing and we scheduled 

a Gagnon II hearing.[1] On October 3, 2018, [Appellant] and his 

counsel appeared before the court. At that hearing, [Appellant]

admitted that he violated the condition which directed that he

refrain from the unlawful possession, use or sale of narcotics and 

other illegal drugs. At the conclusion of the hearing, [w]e then 

resentenced [Appellant] to a term of incarceration in a State 

Correctional Facility for not less than twelve (12) months to no 

more than twenty eight (28) months. [Appellant] was advised of 

his [a]ppellate rights [as] well as his post-sentence rights, and 

was remanded. 

On November 7, 2018, [Appellant’s] counsel filed a Motion 

to reinstate [Appellant’s] [a]ppellate rights. We granted counsel’s 

request by Order dated November 7, 2018. A Notice of Appeal 

was filed on November 8, 2018, and on November 20, 2018, we 

ordered [Appellant] to file a Concise Statement of Errors 

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) and 

requested the Commonwealth to respond thereto. [Appellant’s]

counsel thereafter filed a Concise Statement on December 11,

2018. The Commonwealth has not filed a response. Pursuant to 

Pa.R.A.P. 1925(a), this matter is now ripe for an Opinion from this 

Court.

Trial Court Opinion, 5/24/19, at 1-2 (internal citations omitted). Appellant’s 

counsel filed a petition to withdraw as counsel and an Anders brief on 

October 22, 2019. 

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1 Due process requires that a probationer be given a preliminary (Gagnon I) 

and a final (Gagnon II) hearing prior to revoking probation. 

Commonwealth v. Knoble, 42 A.3d 976, 978 n.1 (Pa. 2012) (citing Gagnon 

v. Scarpelli, 411 U.S. 778 (1973)). The Gagnon decision has become the 

common moniker for both parole and probation revocation proceedings. 

Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa. Super. 2011).
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Before we address Appellant’s question raised on appeal, we must 

resolve appellate counsel’s request to withdraw. Commonwealth v. 

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are 

procedural and briefing requirements imposed upon an attorney who seeks to 

withdraw on appeal. The procedural mandates are that 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. (internal citation omitted).

In this case, counsel has satisfied those directives. Within his petition 

to withdraw, counsel averred that he conducted a conscientious review of the 

record and concluded that the present appeal is wholly frivolous. Counsel 

asserts that he sent Appellant a copy of the Anders brief and petition to 

withdraw, as well as a letter, a copy of which is attached to the petition. In 

the letter, counsel advised Appellant that he could represent himself or retain 

private counsel to represent him. 

We now examine whether the brief satisfies the Supreme Court’s 

dictates in Santiago, which provide that:

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 
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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.

Counsel’s brief is compliant with Santiago. It sets forth the procedural 

history of this case, outlines pertinent case authority, cites to the record, and 

refers to issues of arguable merit. Anders Brief at 7-14. Further, the brief 

sets forth counsel’s conclusion that the appeal is frivolous and the reasons for 

counsel’s conclusion. Id. at 8, 10, 12-13. Satisfied that counsel has met the 

technical requirements of Anders and Santiago, we proceed with our 

independent review of the record and address the issues presented on 

Appellant’s behalf.

Appellant presents the following issue in his Anders Brief: “Whether 

the trial court abused its discretion when it imposed a state sentence of total 

confinement, following revocation of probation, for an aggregate term of 12 

months to 28 months for a technical violation of the conditions of his 

probation?” Anders Brief at 2. Appellant’s issue challenges the discretionary 

aspects of his sentence. We note that “[t]he right to appellate review of the 

discretionary aspects of a sentence is not absolute.” Commonwealth v. 

Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant 

challenges the discretionary aspects of a sentence, the appeal should be 

considered a petition for allowance of appeal. Commonwealth v. W.H.M., 

932 A.2d 155, 163 (Pa. Super. 2007).
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As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. 

Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)):

An appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction by satisfying a four-part test:

[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. 708; (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.A. § 9781(b).

Id. at 170. Whether a particular issue constitutes a substantial question about 

the appropriateness of sentence is a question to be evaluated on a case-bycase basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001).

Here, the first two requirements of the four-part test are met: Appellant 

filed a timely appeal, and Appellant preserved the issue of imposition of an 

excessive sentence in his post-sentence motion. Moury, 992 A.2d at 170. In 

the non-Anders context, the defendant must “preserve the issue in a courtordered Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f) 

statement.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 

2015). Where counsel files an Anders brief, however, this Court has reviewed 

the matter even absent a separate Pa.R.A.P. 2119(f) statement. Zeigler, 112 
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A.3d at 661. Hence, we do not consider counsel’s failure to submit a Rule 

2119(f) statement as precluding review of whether Appellant’s issue is 

frivolous.

Therefore, we next address whether Appellant raises a substantial 

question requiring us to review the discretionary aspects of the sentence 

imposed by the sentencing court. Allowance of appeal will be permitted only 

when the appellate court determines that there is a substantial question that 

the sentence is not appropriate under the Sentencing Code. Commonwealth 

v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A substantial question exists 

where an appellant sets forth a plausible argument that the sentence violates 

a particular provision of the Sentencing Code or is contrary to the fundamental 

norms underlying the sentencing process. Id. This Court has held that “[o]n 

appeal from a revocation proceeding, we find a substantial question is 

presented when a sentence of total confinement, in excess of the original 

sentence, is imposed as a result of a technical violation of parole or probation.” 

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Because 

Appellant has presented a substantial question, we proceed with our analysis. 

When reviewing the outcome of a revocation proceeding, this Court is 

limited to determining the validity of the proceeding, the legality of the 

judgment of sentence imposed, and the discretionary aspects of sentencing. 

Cartrette, 83 A.3d at 1033–1034 (explaining that, notwithstanding prior 

decisions which stated our scope of review in revocation proceedings is limited 
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to validity of proceedings and legality of sentence, this Court’s scope of review 

on appeal from revocation sentencing can also include discretionary 

sentencing challenges). “[T]he revocation of a probation sentence is a matter 

committed to the sound discretion of the trial court and that court’s decision 

will not be disturbed on appeal in the absence of an error of law or an abuse 

of discretion.” Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. 

Super. 2006). 

Additionally, upon sentencing following a revocation of probation, the 

trial court is limited only by the maximum sentence that it could have imposed 

originally at the time of the probationary sentence. Commonwealth v. Fish, 

752 A.2d 921, 923 (Pa. Super. 2000); 42 Pa.C.S. § 9771(b). Once probation 

has been revoked, a sentence of total confinement may be imposed if any of 

the following conditions exist: “(1) the defendant has been convicted of 

another crime; or (2) the conduct of the defendant indicates that it is likely 

that he will commit another crime if he is not imprisoned; or, (3) such a 

sentence is essential to vindicate the authority of the court.” 42 Pa.C.S. 

§ 9771(c)(1-3); Fish, 752 A.2d at 923. 

Furthermore, because sentencing guidelines do not apply to sentences 

imposed following a revocation of probation, we are guided by the provisions 

of 42 Pa.C.S. § 9721, which state the general standards that a court is to 

apply in sentencing a defendant. Commonwealth v. Ferguson, 893 A.2d 

735, 739 (Pa. Super. 2006).
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When imposing a sentence, the sentencing court must 

consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the 

protection of the public, gravity of offense in relation to impact on 

victim and community, and rehabilitative needs of defendant, and 

it must impose an individualized sentence. The sentence should 

be based on the minimum confinement consistent with the gravity 

of the offense, the need for public protection, and the defendant’s 

needs for rehabilitation.

Id. In addition, in all cases where the court “resentences an offender following 

revocation of probation, county intermediate punishment or State 

intermediate punishment or resentences following remand, the court shall 

make as a part of the record, and disclose in open court at the time of 

sentencing, a statement of the reason or reasons for the sentence imposed.” 

42 Pa.C.S. § 9721. Guided by these standards, we must determine whether 

the court abused its discretion by imposing a “manifestly excessive” sentence 

that constitutes “too severe a punishment.” Ferguson, 893 A.2d at 739. 

Moreover, this Court has explained that when the “sentencing court had the 

benefit of a presentence investigation report (‘PSI’), we can assume the 

sentencing court ‘was aware of relevant information regarding defendant’s 

character and weighed those considerations along with mitigating statutory 

factors.’” Moury, 992 A.2d at 171. 

In its Pa.R.A.P. 1925(a) opinion, the trial court provided the following 

explanation for imposition of Appellant’s sentence:

In the instant matter, following the conduct of a hearing, we 

stated on the record that [Appellant’s] sentence of total 

confinement for a period of no less than twelve (12) months was 

warranted to vindicate the authority of the court. In reaching that 

conclusion, we observed that at the time of [Appellant’s] original 
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sentence he was serving a sentence in a State Correctional 

Institut[ion] (SCI) on an unrelated case. We [o]rdered his original 

sentence run concurrently with any sentences that he may have 

then been serving. Thus, part of [Appellant’s] probationary 

sentence was served while he was incarcerated for other offenses.

It was the occasion of his release from incarceration which 

led [Appellant] to violate probation. At the revocation hearing, 

[Appellant] testified that he was released from prison on 

August 24, 2018, after maxing out a sentence in a State Prison. 

By his own admission, [Appellant] was released from prison on 

Friday, but elected to report to probation the following Monday 

where he apparently advised his supervising probation officer that 

he “spent the weekend in a hotel, drinking, using molly (MDMA), 

smoking marijuana and taking pills with strippers.” A urine 

sample from [Appellant] was tested and confirmed his statements 

about using drugs. Given that [Appellant] willfully went to a hotel 

and used a variety of illegal drugs almost immediately after he 

was released from state prison after maxing out that sentence, it 

was clear to the court that . . . he was not sufficiently rehabilitated. 

In light of the foregoing, continuing [Appellant’s] probation was 

not an adequate means to attempt reform and rehabilitate him 

and a period of total confinement was essential to vindicate the 

authority of the court.

Trial Court Opinion, 5/24/19, at 4-5 (internal citations omitted). 

At the time of resentencing, the trial court made the following statement 

regarding Appellant’s sentence:

I will revoke and resentence [Appellant] on the retail theft count 

before me. On that count, the [c]ourt is going to sentence 

[Appellant] to a minimum of 12 months to a maximum of 28 

months to be served in a state correctional institution. I will run 

that concurrent with the other sentence he’s now serving. I’m 

giving you the benefit of running that concurrent since apparently 

you have fessed up and knowing the nature of the offense before 

me but you simply have a bad history of complying with sentences 

as has been previously outlined. Pay all costs as was previously 

ordered on this case. You are to pay the restitution of $640 to 

LensCrafters; undergo appropriate drug and alcohol evaluations 

and comply with all recommended treatment; refrain from drugs 

or alcohol unless prescribed by a physician; don’t frequent places 
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serving alcohol or associate with anyone using drugs or alcohol. 

Again, the [c]ourt feels this sentence is appropriate to uphold the 

integrity of the [c]ourt’s order and given his clear violation of 

those prior orders.

* * *

Just so we are clear, the [c]ourt did feel that a period of 

confinement was warranted in this case in order to vindicate the 

authority of the [c]ourt given [Appellant’s] violation of his

probationary sentence and his continual violation of these type[s] 

of sentences.

* * *

I think [Appellant] needs to serve the sentence that was imposed 

and hopefully get a longer period of supervision and structure and 

to address his substance abuse and other issues. . . . 

N.T., 10/3/18, at 5-7. 

It is undisputed that Appellant violated the terms of his probation by 

conduct indicating that it was likely that he would commit additional crimes if 

he was not imprisoned. N.T., 10/3/18, at 2-7. As a result, the trial court had 

authority to resentence Appellant to total confinement pursuant to 42 Pa.C.S. 

§ 9771(c)(2). Additionally, the trial court had authority to resentence 

Appellant to total confinement pursuant to 42 Pa.C.S. § 9771(c)(3) in order 

to vindicate its authority as a result of Appellant’s probation violation. 

Furthermore, the court had authority to impose any sentence that was 

available to it at Appellant’s original sentencing. Appellant’s sentence 

following probation revocation of twelve to twenty-eight months of 
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incarceration2 was within the purview of sentencing parameters available to 

the trial court when it initially sentenced him. See 18 Pa.C.S. § 1104(1)

(providing maximum sentence of confinement of five years for conviction of 

misdemeanor of the first degree). Thus, the trial court’s resentencing of 

Appellant to a maximum of twenty-eight months was not an abuse of 

discretion. 

In sentencing Appellant, the trial court also considered the factors of 42 

Pa.C.S. § 9721, including Appellant’s rehabilitative needs. The trial court 

stated on the record the factors that led it to impose the probation-revocation 

sentence. Further, because the sentencing court had the benefit of a PSI 

report, there is a presumption that the court was aware of Appellant’s history 

and needs and weighed those factors in sentencing Appellant. N.T., 10/3/18, 

at 6-7; Moury, 992 A.2d at 171. Therefore, the sentence imposed by the trial 

court does not constitute an abuse of discretion, and we agree with counsel 

that Appellant’s assertion that the sentence was unduly harsh and excessive 

is without merit.

We also have independently reviewed the record in order to determine 

whether there are any non-frivolous issues present in this case. 

Commonwealth v. Yorgey, 188 A.3d 1190, 1198-1199 (Pa. Super. 2018) 

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2 No credit for time served was awarded on this probation-revocation 

sentence because Appellant had been awarded credit for time served on a 

separate conviction. N.T., 10/3/18, at 4.
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(en banc). Having concluded that there are no meritorious issues, we grant 

Appellant’s counsel permission to withdraw and affirm the judgment of 

sentence.

Petition to withdraw as counsel granted. Judgment of sentence 

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/11/2020