J-S30012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HALSTON ANDRE JENNINGS

Appellant No. 1987 EDA 2014

Appeal from the Judgment of Sentence June 4, 2014

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0000352-2007;

CP-15-CR-0003343-2007

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 14, 2015

Appellant, Halston Andre Jennings, appeals from the judgment of 

sentence entered in the Chester County Court of Common Pleas, following 

revocation of his probation. We affirm and grant counsel’s petition to 

withdraw. 

The relevant facts and procedural history of this appeal are as follows. 

On June 19, 2007, Appellant pled guilty to possession of drug paraphernalia 

at docket CP-15-CR-0000352-2007 (“352-2007”), and the court sentenced 

him to twelve months’ probation. On January 31, 2008, Appellant pled 

guilty to driving under the influence of a controlled substance (“DUI”) and 

firearms not to be carried without a license at docket CP-15-CR-0003343-

2007 (“3343-2007”). That same day, the court sentenced Appellant to 
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seventy-two hours’ to six months’ imprisonment for DUI and a concurrent 

twelve months’ probation for firearms not to be carried without a license, 

both to be served consecutively to Appellant’s separate sentence at docket 

109-2008.1 Appellant’s supervision was set to expire on July 26, 2012. 

While under supervision, Appellant violated his probation on docket 

352-2007. After a hearing on February 15, 2008, the court revoked 

Appellant’s probation and resentenced him to twelve months’ probation, 

consecutive to Appellant’s sentence at docket 109-2008. Appellant’s 

reinstated probation was set to expire on July 26, 2012. On July 12, 2012, 

while Appellant was still under supervision, a petition was filed to find 

Appellant had violated his probation at dockets 352-2007 and 3343-2007. 

Thereafter, on August 9, 2012, the court revoked Appellant’s probation on 

both dockets, and resentenced him to twelve months’ probation at docket 

352-2007, and twelve months’ probation at docket 3343-2007, to be served 

concurrently. Appellant’s reinstated probation at both dockets was set to 

expire on August 1, 2013. 

On May 21, 2013, a petition was filed to find Appellant had again 

violated his probation at dockets 352-2007 and 3343-2007. The petition 

____________________________________________

1 On January 31, 2008, Appellant also pled guilty to firearms not to be 

carried without a license at docket 139-2008, and possession with intent to 

deliver (“PWID”) at docket 109-2008. That same day, the court sentenced 

Appellant at docket 139-2008 to twelve to twenty-four months’ 

imprisonment, and six to twelve months’ imprisonment at docket 109-2008, 

consecutive to docket 139-2008. 
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alleged Appellant had been found in possession of illegal drugs on February 

11, 2013 and April 16, 2013, and that Appellant had been arrested in 

Delaware County on April 16, 2013, and was charged with five counts of 

PWID, five counts of possession of a controlled substance, five counts of 

possession of drug paraphernalia, and five counts of criminal use of a 

communication facility. The court conducted a Gagnon II2 hearing on June 

4, 2014, and revoked Appellant’s probation at dockets 352-2007 and 3343-

2007. At docket 352-2007, the court resentenced Appellant to six to twelve 

months’ imprisonment. At docket 3343-2007, the court resentenced 

Appellant to two and one-half to five years’ imprisonment, consecutive to his 

sentence at docket 352-2007. 

On July 1, 2014, Appellant filed a petition for nunc pro tunc relief in 

which he requested permission to file an otherwise untimely post-sentence 

motion. That same day, Appellant timely filed a notice of appeal. The court 

ordered Appellant on July 3, 2014, to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On August 5, 2014, 

the court entered an order regarding Appellant’s non-compliance with the 

court’s Rule 1925(b) order, and deemed all appellate issues waived. The 

court also concluded Appellant’s contemporaneous filing of a notice of appeal 

with his petition for nunc pro tunc relief divested the court of jurisdiction to 

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2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 

(1973). 
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rule on Appellant’s petition. Thereafter, on August 28, 2014, this Court 

remanded to determine the issue of Appellant’s legal representation on 

appeal. After conducting an evidentiary hearing, the court appointed a 

public defender to represent Appellant on appeal. On October 14, 2014, the 

court again ordered Appellant to file a Rule 1925(b) statement, and 

Appellant’s counsel filed a notice of intent to file an Anders brief. 

Appellant’s counsel subsequently filed a petition to withdraw in this Court on 

March 6, 2015. 

As a preliminary matter, appellate counsel seeks to withdraw her 

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 

159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) 

petition the Court for leave to withdraw, certifying that after a thorough 

review of the record, counsel has concluded the issues to be raised are 

wholly frivolous; 2) file a brief referring to anything in the record that might 

arguably support the appeal; and 3) furnish a copy of the brief to the 

appellant and advise him of his right to obtain new counsel or file a pro se 

brief to raise any additional points the appellant deems worthy of review. 

Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance 

with these requirements is sufficient. Commonwealth v. Wrecks, 934 

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent 

requirements have been met, this Court must then make an independent 
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evaluation of the record to determine whether the appeal is, in fact, wholly 

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 

(Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw 

representation:

Neither Anders nor McClendon[3]requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To 

repeat, what the brief must provide under Anders are 

references to anything in the record that might arguably 

support the appeal.

* * *

Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that 

arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n 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.

____________________________________________

3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
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Id. at 178-79, 978 A.2d at 361. 

Instantly, counsel filed a petition to withdraw. The petition states 

counsel conducted a conscientious examination of the record and determined 

the appeal is wholly frivolous. Counsel notified Appellant of counsel’s 

request to withdraw. Counsel also supplied Appellant with a copy of the 

brief and a letter explaining Appellant’s right to retain new counsel or to 

proceed pro se to raise any additional points that Appellant deems worthy of 

this Court’s attention. (See Letter to Appellant, dated March 2, 2015, 

attached to Petition to Withdraw as Attorney of Record.) In the Anders

brief, counsel provides a summary of the facts and procedural history of the 

case. Counsel’s argument refers to relevant law that might arguably support 

Appellant’s discretionary aspects of sentencing issues raised on appeal. 

Counsel further states the reasons for her conclusion that the appeal is 

wholly frivolous. Therefore, counsel has substantially complied with the 

requirements of Anders and Santiago. 

As Appellant has filed neither a pro se brief nor a brief with privately 

retained counsel, we review this appeal based on the issues raised in the 

Anders brief:

DOES THE IMPOSITION OF A 21⁄2-5 YEAR STATE 

SENTENCE AND A 6-12 MONTH INCARCERATION 

SENTENCE FOR PROBATION VIOLATIONS IN A FIREARM 

CARRIED WITHOUT A LICENSE CASE AND A POSSESSION 

OF PARAPHERNALIA CASE RESPECTIVELY RAISE A 

SUBSTANTIAL QUESTION THAT THE SENTENCING CODE 

WAS VIOLATED BY THE SENTENCING COURT WHICH
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IMPOSED THE SENTENCES AFTER A DECISION THAT 

APPELLANT HAD FAILED TO MEET TERMS OF THE COURT’S 

PROBATION SUPERVISION WHEN CONVICTED OF FOUR 

COUNTS OF POSSESSION WITH INTENT TO DELIVER IN 

DELAWARE COUNTY AND ONE COUNT OF POSSESSION 

WITH INTENT TO DELIVER AND RESISTING ARREST IN 

CHESTER COUNTY? ARE SUCH SENTENCES AN ABUSE OF 

THE SENTENCING COURT’S DISCRETION? 

IF THIS HONORABLE COURT WERE TO FIND THAT NO 

SUBSTANTIAL QUESTION EXISTS, APPELLANT’S CLAIM IS 

WITHOUT MERIT. A FINDING BY THIS HONORABLE 

COURT THAT A SUBSTANTIAL QUESTION EXISTS, BUT THE 

SENTENCING COURT DID NOT ABUSE ITS WIDE 

DISCRETION IN SENTENCING IS ALSO TANTAMOUNT TO A 

FINDING THAT APPELLANT’S CLAIM LACKS MERIT. 

(Anders Brief at 5). 

In his issues combined, Appellant argues his aggregate sentence of 

eight and one-half to seventeen years’ imprisonment, followed by at least 

two years’ probation, is manifestly excessive.4 Specifically, Appellant claims 

his aggregate sentence constitutes too severe a punishment because the 

court imposed consecutive sentences, which he insists raises a substantial 

question. Appellant concludes the court abused its discretion. As presented, 

Appellant challenges the discretionary aspects of his revocation sentence. 

See Commonwealth v. Prisk, 13 A.3d 526 (Pa.Super. 2011) (stating 

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4 Appellant’s aggregate sentence includes the revocation sentences of six to 

twelve months’ imprisonment and two and one-half to five years’ 

imprisonment at dockets 352-2007 and 3343-2007, respectively. Appellant 

mistakenly also counts an unrelated, separate sentence of five and one-half 

to eleven years’ imprisonment imposed at Chester County docket 4245-

2013. 
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generally allegations regarding sentencing court’s imposition of consecutive 

or concurrent sentence challenges discretionary aspects of sentencing); 

Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim 

that sentence is manifestly excessive challenges discretionary aspects of 

sentencing). 

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

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

judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d 

1021 (Pa.Super. 2005). Notwithstanding the stated scope of review 

suggesting only the legality of a sentence is reviewable, an appellant may 

also challenge the discretionary aspects of a sentence imposed following 

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

See also Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) 

(en banc) (discussing scope of review following revocation proceedings 

includes discretionary sentencing claims). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Sierra, supra. Prior to reaching the 

merits of a discretionary sentencing issue: 

[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. 720; (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 
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Sentencing Code, 42 Pa.C.S.A. § 9781(b). 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating a substantial question as to the 

appropriateness of the sentence under the Sentencing Code. 

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 

2119(f). The concise statement must indicate “where the sentence falls in 

relation to the sentencing guidelines and what particular provision of the 

code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 

2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 

2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). “The 

requirement that an appellant separately set forth the reasons relied upon 

for allowance of appeal ‘furthers the purpose evident in the Sentencing Code 

as a whole of limiting any challenges to the trial court’s evaluation of the 

multitude of factors impinging on the sentencing decision to exceptional 

cases.’” Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 

1989) (en banc). 

[O]nly where the appellant’s Rule 2119(f) statement 

sufficiently articulates the manner in which the sentence 

violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code or a particular 

fundamental norm underlying the sentencing process, will 

such a statement be deemed adequate to raise a 
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substantial question so as to permit a grant of allowance of 

appeal of the discretionary aspects of the sentence. See

[Commonwealth v. Koehler, 558 Pa. 334, 370, 737 A.2d 

225, 244 (1999)] (party must articulate why sentence 

raises doubts that sentence was improper under the 

Sentencing Code). 

Mouzon, supra at 435, 812 A.2d at 627. 

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the 

appellant advances a colorable argument that the sentencing judge’s actions 

were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the 

sentencing process.” Sierra, supra at 912-13. A claim that a sentence is 

manifestly excessive might raise a substantial question if the appellant’s 

Rule 2119(f) statement sufficiently articulates the manner in which the 

sentence imposed violates a specific provision of the Sentencing Code or the 

norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d 

at 627. Generally, any challenge to a sentencing court’s imposition of a 

consecutive sentence, rather than a concurrent one, does not raise a 

substantial question. Prisk, supra at 533. 

“In general, 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.” 

Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). A 
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sentence should not be disturbed where it is evident the court was aware of 

the appropriate sentencing considerations and weighed them in a meaningful 

fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000). 

The Sentencing Guidelines do not apply to sentences imposed 

following revocation of probation. Commonwealth v. Ferguson, 893 A.2d 

735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 

(2006). “[U]pon 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. 

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a 

defendant to total confinement after revoking probation if the defendant was 

convicted of another crime, the defendant’s conduct indicates that it is likely 

that he will commit another crime if he is not imprisoned, or such a sentence 

is essential to vindicate the court’s authority. Commonwealth v. Crump, 

995 A.2d 1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 

(2010). 

Instantly, Appellant failed to file a timely post-sentence motion to 

preserve his sentencing challenges. See Commonwealth v. Mann, 820 

A.2d 788 (Pa.Super. 2003) (stating issues that challenge discretionary 

aspects of sentencing are generally waived if they are not raised during 

sentencing proceedings or in post-sentence motion). Furthermore, upon 

review of Appellant’s Rule 2119(f) statement, we observe Appellant failed to 
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meet the minimal requirements under Rule 2119(f). Appellant’s Rule 

2119(f) statement baldly asserts Appellant’s revocation sentences were 

improper without articulating why or indicating which particular provision of 

the sentencing code his revocation sentences violate. See Kiesel, supra. 

Because Appellant failed to file a timely post-sentence motion and his Rule 

2119(f) statement is completely inadequate, Appellant has arguably waived 

his sentencing issues. See Mann, supra; Mouzon, supra. See also 

Commonwealth v. Cannon, 954 A.2d 1222 (Pa.Super. 2008) (reiterating 

inadequate Rule 2119(f) statement constitutes failure to raise substantial 

question as to discretionary aspects of sentence). 

Moreover, even if properly preserved, Appellant’s discretionary aspects 

of sentencing claims concerning consecutive sentencing do not raise 

substantial questions.5 See Mouzon, supra; Prisk, supra. Based upon 

the foregoing, we conclude Appellant’s revocation sentences should remain 

undisturbed. See Hoover, supra. Accordingly, we affirm the judgment of 

sentence and grant counsel’s petition to withdraw. 

Judgment of sentence affirmed; counsel’s petition to withdraw is 

granted. 

____________________________________________

5 See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) 

(explaining Anders requires some further review of issues otherwise waived 

on appeal). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015