J-S58005-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JASON BARRETT,

Appellant No. 539 MDA 2015

Appeal from the Judgment of Sentence May 28, 2013

in the Court of Common Pleas of Lackawanna County

Criminal Division at Nos.: CP-35-CR-0001433-2012

CP-35-CR-0001629-2009

CP-35-CR-0001945-2009

CP-35-CR-0002395-2009

CP-35-CR-0002929-2009

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 24, 2015

Appellant, Jason Barrett, appeals nunc pro tunc from the judgment of 

sentence imposed after the revocation of his intermediate punishment. 

Counsel has filed a petition to withdraw.1 We affirm Appellant’s judgment of 

sentence and grant counsel’s petition.

We take the following facts from our independent review of the record. 

Between the dates of June 29, 2009 and October 29, 2009, Appellant was 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).
J-S58005-15

- 2 -

arrested three times, and charged with a total of fourteen crimes. On 

September 9, 2010, Appellant pleaded guilty to eleven of those charges, 

including: three counts each of possession with intent to deliver (PWID) and 

possession of a controlled substance, four counts of possession of drug 

paraphernalia, and one count of retail theft.2 In exchange for the plea, the 

Commonwealth nolle prossed the remaining charges. The court imposed 

intermediate punishment by placing Appellant under treatment court 

supervision.

On May 18, 2012, Appellant was arrested for theft by unlawful taking,3

receiving stolen property,4and trespass by motor vehicle.5 Appellant 

pleaded guilty on October 18, 2012, to one count of theft by unlawful taking. 

The court deferred disposition to the treatment court. The remaining two 

charges were nolle prossed pursuant to the plea agreement. On March 28, 

2013, the Commonwealth filed a petition to terminate Appellant’s 

intermediate punishment for his violation of the drug treatment program’s 

terms, and the court terminated him from the program that day. On May 

28, 2013, the court sentenced him to an aggregate term of incarceration of 

____________________________________________

2 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), and 18 Pa.C.S.A. § 3929.

3 18 Pa.C.S.A. § 3921.

4 18 Pa.C.S.A. § 3925.

5 75 Pa.C.S.A. § 3717.
J-S58005-15

- 3 -

not less than seventy-two nor more than one hundred forty-four months in a 

state correctional facility, plus eight years’ probation.

On June 4, 2013, Appellant filed a motion for reconsideration of 

sentence. He filed an amended motion on June 25, 2013, which the court 

denied on July 19, 2013. On August 22, 2013, Appellant filed a notice of 

appeal, which this Court quashed as untimely on October 18, 2013.

On January 27, 2014, Appellant filed a Petition for Post-Conviction 

Collateral Relief,6in which he sought reinstatement of his direct appeal 

rights. The court appointed counsel on February 27, 2014. The 

Commonwealth filed a response on April 14, 2014. On February 25, 2015, 

the court granted the petition without a hearing. Appellant timely filed a 

direct appeal on March 23, 2015.7 Counsel filed an Anders brief and a 

petition to withdraw on July 2, 2015, on the basis that the appeal is wholly 

frivolous.

The standard of review for an Anders brief is well-settled:

Court-appointed counsel who seek to withdraw from 

representing an appellant on direct appeal on the basis that the 

appeal is frivolous must:

(1) petition the court for leave to withdraw 

stating that, after making a conscientious 

____________________________________________

6 42 Pa.C.S.A. §§ 9541-9546.

7 Appellant filed a timely Rule 1925(b) statement of errors complained of on 

appeal on April 8, 2015 pursuant to the court’s order. See Pa.R.A.P. 

1925(b). The court chose not to file an opinion. See Pa.R.A.P. 1925(a).
J-S58005-15

- 4 -

examination of the record, counsel has determined 

that the appeal would be frivolous; (2) file a brief 

referring to anything that arguably might support the 

appeal but which does not resemble a “no-merit” 

letter or amicus curiae brief; and (3) furnish a copy 

of the brief to the defendant and advise the 

defendant of his or her right to retain new counsel or 

raise any additional points that he or she deems 

worthy of the court’s attention.

[T]his Court may not review the merits of the underlying 

issues without first passing on the request to withdraw.

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

and most quotation marks omitted). Further, our Supreme Court ruled in 

Santiago, supra, that Anders briefs must contain “a discussion of 

counsel’s reasons for believing that the client’s appeal is frivolous[.]” 

Santiago, supra at 360.

Instantly, counsel’s Anders brief and petition to withdraw substantially 

comply with the applicable technical requirements and reveal that he has 

made “a conscientious examination of the record [and] determined that the 

appeal would be frivolous[.]” Lilley, supra at 997.8 Additionally, the record 

establishes that counsel served Appellant with a copy of the Anders brief 

and petition to withdraw, and a letter of notice which advised Appellant of 

____________________________________________

8 Counsel inaccurately identifies his petition to withdraw as being filed 

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). (See

Counsel’s Petition to Withdraw, 7/02/15, at 1). However, this appears to be 

merely a scrivener’s error because he has filed the required Anders brief.
J-S58005-15

- 5 -

his right to retain new counsel or to proceed pro se and raise additional 

issues to this Court.9 See id.; (see also Counsel’s Petition to Withdraw, 

7/02/15, Exhibit 1, at 1). Further, the petition and brief cite “to anything 

that arguably might support the appeal[.]” Lilley, supra at 997; (see also 

Anders Brief, at 5-8). As noted by our Supreme Court in Santiago, the 

fact that some of counsel’s statements arguably support the frivolity of the 

appeal does not violate the requirements of Anders. See Santiago, supra

at 360-61.

Having concluded that counsel’s petition and brief substantially comply 

with the technical Anders requirements, we must “conduct [our] own review 

of the trial court’s proceedings and render an independent judgment as to 

whether the appeal is, in fact, wholly frivolous.” Lilley, supra at 998 

(citation omitted).

The Anders brief raises one question for our review: “Did the [t]rial 

[c]ourt impose a sentence that was harsh and excessive and should have 

been run concurrently rather than consecutively?” (Anders Brief, at 4).

We observe first that Appellant’s issue challenges the discretionary 

aspects of his sentence, and “this Court’s scope of review in an appeal from 

a revocation sentencing includes discretionary sentencing challenges. . . . 

Likewise, our abuse of discretion standard of review in revocation sentencing 

____________________________________________

9 Appellant has not filed a response to the petition to withdraw.
J-S58005-15

- 6 -

cases requires us to consider whether a sentencing court exhibited 

prejudice, bias, ill-will or partiality.” Commonwealth v. Cartrette, 83 A.3d 

1030, 1034, 1041 (Pa. Super. 2013) (footnote and citation omitted). 

However, it is well-settled that:

There is no absolute right to appeal when challenging the 

discretionary aspect of a sentence. Rather, an appeal is 

permitted only after this Court determines that there is a 

substantial question that the sentence was not appropriate under 

the sentencing code. In determining whether a substantial 

question exists, this Court does not examine the merits of the 

sentencing claim.

In addition, issues challenging the discretionary aspects of 

a sentence must be raised in a post-sentence motion or by 

presenting the claim to the trial court during the sentencing 

proceedings. Absent such efforts, an objection to a discretionary 

aspect of a sentence is waived. Furthermore, a defendant is 

required to preserve the issue in a court-ordered Pa.R.A.P. 

1925(b) concise statement and a Pa.R.A.P. 2119(f) statement. 

Id. at 1042 (brackets, citations, and quotation marks omitted). 

“We examine an appellant’s Pa.R.A.P. 2119(f) statement to determine 

whether a substantial question exists. Our inquiry must focus on the 

reasons for which the appeal is sought, in contrast to the facts underlying 

the appeal, which are necessary only to decide the appeal on the merits.” 

Commonwealth v. Hill, 66 A.3d 359, 364 (Pa. Super. 2013) (citations 

omitted) (emphases in original).

Here, Appellant has met the procedural requirements of raising his 

issue in his post-sentence motion, preserving this issue in his Rule 1925(b) 

statement, and including a Rule 2119(f) statement in his brief. (See 
J-S58005-15

- 7 -

Amended Petition for Reconsideration of Sentence, 6/25/13, at unnumbered 

pages 2-3; Rule 1925(b) Statement, 4/08/15; Anders Brief, at 6-7). 

However, his statement fails to raise a substantial question where his 

sentence was within the guideline range and he claims excessiveness based 

only on the consecutive nature of the sentence. See Commonwealth v. 

Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal denied, 91 A.3d 161 

(Pa. 2014) (“[B]ald claim of excessiveness due to the consecutive nature of 

a sentence will not raise a substantial question.”) (citations omitted).

Moreover, our own independent review reveals that the court did not 

abuse its discretion when fashioning Appellant’s sentence. The court 

considered the particular circumstances of Appellant’s case, including its 

history with Appellant and his multiple unsuccessful attempts at 

rehabilitation. (See N.T. Sentencing, 5/28/13, at 4-5). Further, “the 

sentencing court [did not] exhibit[] prejudice, bias, ill-will or partiality.” 

Cartrette, supra at 1041 (footnote and citation omitted). Therefore, we 

agree with counsel that Appellant’s issue on appeal is frivolous. See Lilley, 

supra at 998. Additionally, we find no other non-frivolous issues that would 

merit relief. 

Judgment of sentence affirmed. Counsel’s application to withdraw 

granted.
J-S58005-15

- 8 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2015