J-S72019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES THOMAS WENGERT, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1088 MDA 2018

Appeal from the Judgment of Sentence Entered June 4, 2018

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

No(s): CP-06-CR-0001992-2017

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 21, 2019

Appellant, Charles Thomas Wengert, Jr., appeals from the judgment of 

sentence imposed on June 4, 2018, in the Berks County Court of Common 

Pleas following the revocation of his probation. Appellant’s counsel has filed a 

petition to withdraw representation and a brief pursuant to Anders v. 

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

349 (Pa. 2009), which govern withdrawal from representation on direct appeal. 

Appellant filed a pro se purported response to counsel’s petition to withdraw

on November 14, 2018.

1

 Following our review, we grant counsel’s petition to 

withdraw and affirm the judgment of sentence.

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1

 Appellant’s pro se “response” curiously seeks “an investor” from the “Berks 

County Medical Marijuana Industry” to “open a bank account for” his son. 
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On March 28, 2017, Appellant was charged with one count each of 

possession of a controlled substance, 35 P.S. § 780-113(a)(16), and 

possession of drug paraphernalia, 35 P.S. § 780-113(a)(32), at Berks County 

Docket Number CP-06-CR-0001992-2017. On May 2, 2017, trial of these 

charges was consolidated with Appellant’s other pending charges at Berks 

County Docket Number CP-06-CR-0001991-2017.2 On September 20, 2017, 

Appellant pled guilty at both docket numbers. At docket number CP-06-CR0001992-2017, Appellant pled guilty to one count of possession of a controlled 

substance, methamphetamine, and the trial court sentenced Appellant to three 

years of probation to be served consecutive to the sentence imposed at docket 

number CP-06-CR-0001991-2017.

3

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Letter to Commonwealth of Pennsylvania and Superior Court of Pennsylvania, 

11/14/18. In addition, by separate letter addressed to the trial court, Appellant 

maintains that “by law [he] is entilted [sic] to be assigned new counsel to [his] 

case. . . .” Letter to trial court, 11/14/18. Appellant is incorrect. Appellant is 

not entitled to different court-appointed counsel; rather, “Appellant is entitled 

only to retain new counsel or to proceed pro se should he choose to do so.” 

Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). 

Appellant’s response offers nothing substantive regarding his case.

2

 Because the instant appeal involves only docket number CP-06-CR-0001992-

2017, the record does not reveal the charges filed at docket number CP-06-

CR-0001991-2017. In his brief, Appellant describes the charges for this docket 

as two counts each of terroristic threats, 18 Pa.C.S. § 2706(a)(1), simple 

assault, 18 Pa.C.S. § 2701(a)(3), harassment, 18 Pa.C.S. § 2709(a)(2), 

harassment, 18 Pa.C.S. § 2709(a)(3), and four counts harassment, 18 Pa.C.S. 

§ 2709(a)(2). Anders Brief at 8 n.3.

3

 Appellant was sentenced to time served of 169 days to twenty-three months 

at docket number CP-06-CR-0001991-2017. N.T., 6/4/18, at 6–7.
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At Appellant’s June 4, 2018 Gagnon II4 hearing,

5

the Commonwealth 

noted that Appellant had been detained for failing to: report, notify change of 

residence, and comply with chemical testing.6 N.T., 6/4/18/ at 2; see Post 

Sentence Motion, 6/14/18, at ¶ 3. Appellant admitted the probation violations, 

the sentencing court revoked Appellant’s probation, and it imposed a sentence 

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4 Gagnon v. Scarpelli, 411 U.S. 778 (1978).

5

 At the hearing, Appellant questioned why the violations affected his 

probationary sentence at docket number CP-06-CR-0001992-2017, in that he 

was not yet serving the probationary sentence. N.T., 6/4/18, at 2–3, 6. 

Rather, at that time, he was on parole for the sentence imposed at docket 

number CP-06-CR-0001991-2017. While this is not raised as an issue on 

appeal, in light of counsel’s motion to withdraw, it is prudent that we comment. 

In Commonwealth v. Ware, 737 A.2d 251 (Pa. Super. 1999), this Court 

explained that the trial court had the authority to revoke the appellant’s 

probation despite the fact that at the time of revocation, the appellant had not 

yet begun to serve the probationary term “and even though the offense upon 

which the revocation of probation was based occurred during the parole period 

and not the probationary period.” Id. at 253. Citing Commonwealth v. 

Wendowski, 420 A.2d 628 (Pa. Super. 1980), we explained that a term of 

probation “may and should be construed for revocation purposes as including 

the term beginning at the time probation is granted. Otherwise, having been 

granted probation[,] a defendant could commit criminal acts with impunity—

as far as revocation of probation is concerned—until he commenced actual 

service of the probationary period.” Ware, 737 A.2d at 254 (quoting 

Wendowski, 420 A.2d at 630). The Ware court emphasized, “[T]he 

expressed intent of the [c]ourt to have [a defendant] under probation 

beginning at a future time does not ‘change his position from the possession 

of a privilege to the enjoyment of a right.’” Ware, 737 A.2d at 254 (quoting 

Burns v. United States, 287 U.S. 216, 222 (1932)). Once the court revoked 

the appellant’s probation, “it had the same sentencing options available that 

existed at the time of the original sentencing.” Ware, 737 A.2d at 254.

6

 The April 17, 2018 detainer filed by Berks County Adult Probation and Parole 

Officer Michael Futrick is not in the record certified to us on appeal.
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of incarceration of eleven and one-half to twenty-three months, this time 

concurrent with the sentence imposed at docket number CP-06-CR-0001991-

2017.

7

 Appellant timely filed a post-sentence motion, which the sentencing

court denied on June 14, 2018. This timely appeal followed. Both Appellant 

and the sentencing court complied with Pa.R.A.P. 1925.

Before we address any question raised on appeal, we first must resolve 

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83 

A.3d 1030 (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. at 1032 (citation omitted).

In addition, our Supreme Court, in Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009), stated that an Anders brief must:

(1) provide a summary of the procedural history and facts, with 

citations to the record;

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7

 At docket number CP-06-CR-0001991-2017, the sentencing court revoked 

Appellant’s parole and “recommitted him to serve the maximum sentence or 

until such time as he can put forward an acceptable parole plan.” N.T., 6/4/18, 

at 10. Thus, Appellant was eligible to be paroled. Id. at 4, 10.
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(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.

Counsel has complied with the requirements for withdrawal outlined in 

Anders and Santiago. Specifically, counsel requested to withdraw based 

upon her determination that the appeal is “wholly frivolous,” and she stated 

her reasons for that conclusion with appropriate support. Petition to Withdraw 

as Counsel, 9/24/18, at ¶¶ 4–5. Additionally, counsel sent a letter to Appellant, 

and she attached a copy of the letter to her motion. Counsel states that she 

informed Appellant that she has filed a motion to withdraw and an Anders

brief, and she apprised Appellant of his rights in light of the motion to withdraw 

as counsel. Thus, Appellant’s appellate counsel has satisfied the requirements 

of Anders and Santiago. We thus conclude that the procedural and briefing 

requirements for withdrawal have been met.

Counsel for Appellant has indicated that after review of the certified 

record, there are no meritorious issues. Anders Brief at 15. However, counsel 

does set forth one possible issue on Appellant’s behalf: “Whether the trial 

court abused its discretion when it imposed a sentence of eleven and one-half 

(11 1/2) to twenty-three (23) months for Appellant’s first technical probation 
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violations at his Gagnon II hearing[?]” Anders Brief at 7. Appellant maintains 

that the sentence imposed “did not meet the governing principles in the 

Sentencing Guidelines,” and it was “manifestly unreasonable even though it 

was within the standard range.” Id. at 15.

This issue presents a challenge to the discretionary aspects of Appellant’s 

sentence. Challenges to the discretionary aspects of sentencing do not entitle 

an appellant to review as of right, and his challenge in this regard is properly 

viewed as a petition for allowance of appeal. 42 Pa.C.S. § 9781(b); 

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987); Commonwealth 

v. Sierra, 752 A.2d 910 (Pa. Super. 2000). An appellant challenging the 

discretionary aspects of his sentence must satisfy a four-part test. We 

evaluate: (1) whether Appellant filed a timely notice of appeal; (2) whether 

Appellant preserved the issue at sentencing or in a motion to reconsider and 

modify sentence; (3) whether Appellant’s brief includes a concise statement of 

the reasons relied upon for allowance of appeal; and (4) whether the concise 

statement raises a substantial question that the sentence is appropriate under 

the Sentencing Code. Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725

(Pa. Super. 2013). An appellant must articulate the reasons the sentencing 

court’s actions violated the Sentencing Code. Commonwealth v. Moury, 992 

A.2d 162 (Pa. Super. 2010); Sierra, 752 A.2d at 912–913.

In the instant case, Appellant filed a timely appeal, and the issue was 

properly preserved in his post-sentence motion. Moreover, the Anders brief 
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contains a concise statement of the reasons relied upon for allowance of appeal 

with respect to the discretionary aspects of a sentence pursuant to Pa.R.A.P. 

2119(f). Thus, we consider whether the concise statement raises a substantial 

question.

Herein, Appellant asserts that his sentence of confinement, which is in 

excess of the original sentence, raises a substantial question. Anders Brief at 

12 (citing Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000)). 

Appellant maintains that the trial court failed to consider the requirements of 

42 Pa.C.S. § 9771(c). Anders Brief at 14. Additionally, he contends that he 

has raised a substantial question by his allegation that the sentence was so 

excessive that it violates the general principles underlying the Sentencing 

Guidelines.8 Id. at 13. In particular, Appellant suggests the sentencing court 

failed to properly weigh the general principles that the sentence imposed is 

consistent with the protection of the public, the gravity of the offense, and 

Appellant’s rehabilitative needs. Id. at 14 (citing 42 Pa.C.S. § 9721(b)). “[T]o 

the extent [Appellant] challenges the sentencing court’s failure to consider 

Section 9721(b) factors,” Appellant raises a substantial question. 

Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016). 

____________________________________________

8

 We note that in revocation proceedings, the sentencing guidelines do not 

apply. Commonwealth v. Pasture, 107 A.3d 21, 27 (2014); 204 Pa. Code. 

§ 303.1(b).
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Additionally, a claim that “a sentence is manifestly excessive such that it 

constitutes too severe a punishment raises a substantial question.” Id. 

Our Supreme Court detailed the sentencing court’s duty upon revocation 

of probation and resentencing, as follows:

At initial sentencing, all of the rules and procedures designed to 

inform the court and to cabin its discretionary sentencing authority 

properly are involved and play a crucial role. However, it is a 

different matter when a defendant reappears before the court for 

sentencing proceedings following a violation of the mercy bestowed 

upon him in the form of a probationary sentence. For example, in 

such a case, contrary to when an initial sentence is imposed, the 

Sentencing Guidelines do not apply, and the revocation court is not 

cabined by Section 9721(b)’s requirement that “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 on the life of the victim and on the community, and the 

rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721. See 

Commonwealth v. Reaves, 592 Pa. 134, 150, 923 A.2d 1119, 

1129 (2007) (citing 204 Pa.Code. § 303.1(b) (Sentencing 

Guidelines do not apply to sentences imposed as result of 

revocation of probation)).

Upon revoking probation, “the sentencing alternatives 

available to the court shall be the same as were available at the 

time of initial sentencing, due consideration being given to the time 

spent serving the order of probation.” 42 Pa.C.S. § 9771(b). Thus, 

upon revoking probation, the trial court is limited only by the 

maximum sentence that it could have imposed originally at the 

time of the probationary sentence, although once probation has 

been revoked, the court shall not impose a sentence of total 

confinement unless it finds that:

(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
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(3) such a sentence is essential to vindicate the 

authority of the court.

42 Pa.C.S. § 9771(c).

Moreover, 42 Pa.C.S. § 9721(b) specifies that in every case 

following the revocation of probation, “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.” See also Pa.R.Crim.P. 708(C)(2) (indicating at the time 

of sentence following the revocation of probation, “the judge shall 

state on the record the reasons for the sentence imposed.”).

However, following revocation, a sentencing court need not 

undertake a lengthy discourse for its reasons for imposing a 

sentence or specifically reference the statutes in question. Simply 

put, since the defendant has previously appeared before the 

sentencing court, the stated reasons for a revocation sentence 

need not be as elaborate as that which is required at initial 

sentencing. The rationale for this is obvious. When sentencing is 

a consequence of the revocation of probation, the trial judge is 

already fully informed as to the facts and circumstances of both 

the crime and the nature of the defendant, particularly where, as 

here, the trial judge had the benefit of a [presentence investigation

(“PSI”)] during the initial sentencing proceedings. See 

[Commonwealth] Walls, 592 Pa. [557] at 574 n.7, 926 A.2d 

[957] at 967 n.7 [(2007)] (“Where PSI exists, we shall continue to 

presume that the sentencing judge was aware of the relevant 

information regarding the defendant’s character and weighed 

those considerations along with mitigating statutory factors.”).

* * *

We emphasize a trial court does not necessarily abuse its discretion 

in imposing a seemingly harsher post-revocation sentence where 

the defendant received a lenient sentence and then failed to adhere 

to the conditions imposed on him. See [Commonwealth v.]

Reaves, 592 Pa. [134] at 138 n.5, 923 A.2d [1119] at 1122 n.5

[(2007)]. In point of fact, where the revocation sentence was 

adequately considered and sufficiently explained on the record by 

the revocation judge, in light of the judge’s experience with the 

defendant and awareness of the circumstances of the probation 

violation, under the appropriate deferential standard of review, the 
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sentence, if within the statutory bounds, is peculiarly within the 

judge’s discretion.

Pasture, 107 A.3d at 27–29 (footnotes omitted).

The sentencing court possessed a multitude of information relevant to 

Appellant and considered all of the factors bearing on Appellant’s sentence. 

The sentencing court explained:

Here, this [c]ourt considered the Appellant’s presentence

investigation report, nature of the offense, Appellant’s allocution, 

Appellant’s rehabilitative needs and the sentencing guidelines

before sentencing the Appellant. See Gagnon II Hearing, Notes

of Testimony (“N.T.”), June 4, 2018. Considering Appellant’s prior 

record score (R-fel) and the sentencing guidelines, a standard 

range sentence for possession of methamphetamine is 12 to 18 

months of incarceration. At Count 1, Possession of a Controlled 

Substance, Methamphetamine, the Appellant was sentenced to 11 

and a half to 23 months of incarceration. This sentence was within 

the guidelines.

Although the Appellant admitted his violation of the 

probation, Appellant failed to provide any specific reasons to why 

he did not follow the terms of his probation. See N.T. This [c]ourt 

took into account the personal problems Appellant was having, 

but made clear that that the main issue in the hearing was 

addressing the Appellant’s probation and parole violation. N.T. at

9-10. Appellant’s counsel averred the violation was technical in 

that no new crime has been committed. However, this [c]ourt 

considered the Appellant’s rehabilitative needs as Appellant failed 

to report and failed to comply with chemical testing. N.T. at 2. 

This [c]ourt also considered the probation officer’s testimony 

regarding Appellant harassing his father, ex-girlfriend, his

girlfriend’s current boyfriend, and most of all, Appellant going 

back to the same place where his drug problems began. N.T. at 

11. When the issue of Appellant’s prior employment history was

addressed, Appellant started listing his prior places of 

employment. However, when this [c]ourt asked the Appellant 

why such information was not reflected in the sentencing

investigation conducted May 23, 2017, Appellant failed to provide 

any justifications. N.T. at 15-16.
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Sentencing Court Opinion, 8/7/18, at unnumbered 2–3.

Upon review, we conclude Appellant’s claim is meritless. Here, equipped 

with a PSI, the sentencing court considered all of the factors Appellant 

identifies as relevant to consideration of his personal circumstances and 

characteristics. Moreover, we have independently reviewed the record in 

order to determine if appellate counsel’s assessment about the frivolous 

nature of the present appeal is correct. See Commonwealth v. Flowers, 

113 A.3d 1246, 1250 (Pa. Super. 2015) (after determining counsel has 

satisfied the technical requirements of Anders and Santiago, this Court must 

conduct an independent review of the record to determine if there are 

additional, non-frivolous issues overlooked by counsel). We conclude that an 

appeal in this matter is frivolous. Accordingly, we grant appellate 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: 2/21/2019