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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA 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

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- 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

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- 0000352

- 2007 (“352

- 2007”), and t he 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

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- 0003343

- 2007 (“3343

- 2007”). That same day, the court sentenced Appellant toJ

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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 sen tence 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 rese ntenced 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 f ind 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’ prob ation 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 App ellant 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.J

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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 cou nts 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 II 2 hearing on June 4, 2014, and revoked Appellant’s probation at docke ts 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 doc ket 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 Appella nt 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 appella te 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

____________________________________________ 2 Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).J

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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 withd raw 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
argu ably 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 independentJ

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evaluatio n 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 addre ssed 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 supp orts 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 Commonwealt

h v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981).J

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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 ap peal 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 p oints 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 th e 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 IM POSITION OF A 21⁄2

- 5 YEAR STATE SENTENCE AND A 6

- 12 MONTH INCARCERATI ON SENTENCE FOR PROBATI ON VIOLATIONS IN A F IREARM CARRIED WITHOUT A LI CENSE CASE AND A POS SESSION OF PARAPHERNALIA CAS E RESPECTIVELY RAISE A SUBSTANTIAL QUESTION THAT THE SENTENCING CODE WA S VIOLATED BY THE SE NTENCING COURT WHICHJ

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- IMPOSED THE SENTENCE S AFTER A DECISION T HAT APPELLANT HAD FAILED TO MEET TERMS OF THE COURT’S PROBATION SUPERVISIO N WHEN CONVICTED OF FOUR COUNTS OF POSSESSION WITH INTENT TO DELIV ER IN DELAWARE COUNTY AND ONE COUNT OF POSSESSION WITH INTENT TO DELIV ER AND RESISTING ARR EST IN CHESTER COUNTY? ARE SUCH SENTENCES AN AB USE OF THE SENTENCING COURT ’S DISCRETION? IF THIS HONORABLE CO URT WERE TO FIND THA T NO SUBSTANTIAL QUESTION EXISTS, APPELLANT’S CLAIM IS WITHOUT MERIT . A FINDING BY THIS HONORABLE COURT THAT A SUBSTAN TIAL QUESTION EXISTS , BUT THE SENTENCING COURT DID NOT ABUSE ITS WIDE DISCRETION IN SENTEN CING IS ALSO TANTAMO UNT TO A FINDING THAT APPELLA NT’S CLAIM LACKS MER IT. ( Anders Brief at 5). In his issues c ombined, 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 pu nishment 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 C ommonwealth v. Prisk , 13 A.3d 526 (Pa.Super. 2011) (stating

____________________________________________ 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

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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 Commonw ealth 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 a ppeal 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 is sue 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 theJ

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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 reli ed 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.’” Commonwealt h 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 Se ntencing Code or a particular fundamental norm underlying the sentencing process, will such a statement be deemed adequate to raise aJ

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- substantial question so as to permit a grant of allowance of appeal of the discretionary aspects of the sentence. See [ Co mmonwealth 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 eithe r: (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 ques tion 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. G enerally, 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 probatio n 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). AJ

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sentence should not be disturbed where it is evident th e 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 proba tion. 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 impos ed 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 de fendant’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 toJ

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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) (reiterat ing 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 sentenc ing 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 cou nsel’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).J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/14/2015