J-S36029-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GABRIELLE VICTORIA AYALA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 392 MDA 2019

Appeal from the Judgment of Sentence Entered January 30, 2019

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

No(s): CP-28-CR-0000200-2016

BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 24, 2019

Appellant, Gabrielle Victoria Ayala, appeals from the judgment of 

sentence entered on January 30, 2019, in the Franklin County Court of 

Common Pleas following the revocation of her 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 has not filed a response to counsel’s petition to withdraw. 

Following our review, we grant counsel’s petition to withdraw and affirm the 

judgment of sentence.

The trial court summarized the facts and procedural history of this case 

as follows:

On August 10, 2015, the Pennsylvania State Police charged 

[Appellant] with Retail Theft,1 graded as a felony of the third 
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degree. See Police Criminal Complaint. The Public Defender’s 

Office was appointed to represent [Appellant]. After a number of 

continuances, [Appellant] appeared with counsel before the 

issuing authority and waived her right to a preliminary hearing on 

February 2, 2016. See Waiver of Preliminary Hearing, February 2, 

2016.

1 18 Pa.C.S. § 3929(a)(1).

The Commonwealth filed an Information charging 

[Appellant] with Retail Theft (F3) on March 4, 2016. See 

Information, March 4, 2016. [Appellant] entered a plea of not 

guilty in this court on March 9, 2016. Id.

After a number of continuances of trial, the parties appeared 

before the court on August 11, 2016; at that time, [Appellant]

entered into a negotiated plea agreement with the 

Commonwealth. See Order, August 11, 2016, and attached Plea 

Agreement. In exchange for [Appellant’s] plea of guilty to the 

charge as filed, the Commonwealth agreed to, inter alia, a pledto sentence of not less than time-served to twelve (12) months in 

the county jail, followed by twelve (12) months of probation. Id. 

The court accepted [Appellant’s] plea and the agreement with the 

Commonwealth and immediately imposed the agreed-upon 

sentence. See Order of Court, August 11, 2016.

On May 25, 2017, the court found2 [Appellant] in violation 

of . . . parole . . ., and recommitted her to the county jail to serve 

the balance of the sentence; the twelve-month probationary 

period was reinstated at the expiration of the parole sentence. 

See Order of Court, May 25, 2017. [Appellant] was paroled on 

October 6, 2017.

2

 [Appellant] waived her Gagon I & II hearings. See 

Order of Court, May 25, 2017.

On December 4, 2018, the Adult Probation Department filed 

a Notification of Hearing for Violation of Probation, Parole, 

Intermediate Punishment, or Conditions of Suspended Sentence 

(Notification). The Probation Department alleged [Appellant] was 

in violation of the probation period of the sentence due to being 

charged with multiple counts of drug trafficking and related 

offenses in the State of Maryland, being charged with Retail Theft 

(F3) by the Chambersburg Police Department (Franklin County), 

failing to comply with special conditions of probation (drug & 
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alcohol treatment and community service), and failing to pay 

fines/costs/restitution. See Notification, ¶¶ 1–4.

On January 23, 2019, [Appellant] appeared before the court 

in this matter and in three un-related charges of Retail Theft (F3) 

that had been filed3 against [Appellant]. See Transcript of 

Proceedings of Plea Colloquy, January 23, 2019. [Appellant]

entered a negotiated plea agreement with the Commonwealth on 

the new offenses, and sentencing was deferred until January 30, 

2019, for consideration with this violation case. Id., p. 10.

3

 Docket Numbers CP-28-CR-0002216-2018, CP-28-

CR-0002320-2018, and CP-28-CR-0002321-2018.

On January 30, 2019, [Appellant] appeared before this court 

with counsel and knowingly and voluntarily waived her right to a 

Gagon II hearing. See Order of Court, January 30, 2019. 

[Appellant] admitted to failing to live as a law abiding citizen (the 

aforementioned Retail Theft pleas), possessing a controlled 

substance and paraphernalia, and failed to make payments on 

fines/costs/restitution as directed; [Appellant] denied failing to 

comply with special conditions of the sentence. See Transcript of 

Proceedings of Re-sentencing Hearing, January 30, 2019, p. 4. 

The court accepted her waiver, her acknowledgement of being in 

violation of probation, and proceeded to resentencing.

After hearing argument from counsel and [Appellant’s]

statements, the [c]ourt imposed a sentence of not less than 

twenty-four (24) months to not more than eighty-four (84) 

months[1]in the state correctional system.4 [Appellant] filed a 

Post-Sentence Motion seeking modification of sentence on 

February 6, 2019. The Court issued an order determining 

hearing/argument to be unnecessary and directed the 

Commonwealth to file a response by February 22, 2019. See 

Order, February 7, 2019. The Commonwealth timely complied.

4

 The sentences for the new offenses resulted from 

the plea agreement between the parties whereby 

those sentences would be state sentences and be 

consecutive to the sentence herein. See Transcript of 

Proceedings of Plea Colloquy, January 23, 2019, p. 5.

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1

 The court granted “credit for time previously served.” Sentencing order, 

1/30/19.
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However, before this court decided the Post-Sentence 

Motion, [Appellant] filed a Notice of Appeal to the Superior Court.5 

See Notice of Appeal, March 1, 2019. That same day, the court 

directed [Appellant] to file a concise statement of matters 

complained of on appeal. See Order, March 1, 2019. [Appellant]

timely complied on March 19, 2019. See Concise Statement of 

Matters Complained of on Appeal (Concise Statement), March 19, 

2019.

5

 Because the sentence in this case was imposed after 

revocation of probation, [Appellant’s] Post-Sentence 

Motion did not toll the thirty day period to perfect an 

appeal in the Superior Court. See Pa.R.Crim.P. 708.

Trial Court Opinion, 3/25/19, at 1–5.

Before we address any question raised on appeal, we 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 Santiago, 978 A.2d 349, 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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(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. Specifically, counsel requested to withdraw based upon his 

determination that the appeal is wholly frivolous. Petition to Withdraw as 

Counsel, 5/8/19, at ¶ 7. Additionally, counsel sent a letter to Appellant, and 

he attached a copy of the letter to his motion. Counsel informed Appellant 

that he has filed a motion to withdraw and an Anders brief, and he apprised 

Appellant of his immediate right to proceed pro se or with private counsel, in 

light of the motion to withdraw as counsel. Id. at Exhibit A. Thus, Appellant’s 

appellate counsel satisfied the requirements of Anders.

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 

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.
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Santiago, 978 A.2d at 361; Cartrette, 83 A.3d at 1032.

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

history of this case, outlines pertinent case authority, and refers to an issue 

of arguable merit.2 Anders Brief at 7–12. Further, the brief advances 

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

conclusion. Id. at 13–14. Accordingly, we proceed to examine the issue 

counsel identified in the Anders brief, and then we conduct “a full examination 

of all the proceedings, to decide whether the case is wholly frivolous.” 

Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super. 2018) (en 

banc).

Counsel for Appellant has indicated that after review of the certified 

record, there are no meritorious issues. Anders Brief at 8. However, counsel 

set forth one possible issue on Appellant’s behalf:

1. Did the trial court abuse its discretion when it sentenced 

[Appellant] on January 30, 2019 to a sentence of twenty-four (24) 

months to eighty-four (84) months in a State Correctional 

Institution in case no. 200-2016?

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2

 While counsel did not attach a certificate of service to the brief or application 

to withdraw as cousel, the letter to Appellant indicates that the brief and 

withdrawal request were attached. Moreover, we have overlooked counsel’s 

failure to cite to the record in his brief, but remind counsel of his duty to do 

so. See Pa.R.A.P. 2117(a)(4) (Statement of the case shall contain, inter alia,

“an appropriate reference in each instance to the place in the record where 

the evidence substantiating the fact relied on may be found.”); Santiago, 978 

A.2d at 361 (emphasis added) (“in the Anders brief that accompanies . . . 

counsel’s petition to withdraw, counsel must: (1) provide a summary of the 

procedural history and facts, with citations to the record.”).
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Anders Brief at 7.

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

sentence, and it is well settled 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). When an appellant challenges 

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

petition for allowance of appeal. Commonwealth v. Hill, 210 A.3d 1104, 

1116 (Pa. Super. 2019). Moreover, when considering the merits of a

discretionary-aspects-of-sentencing claim, we analyze the sentencing court’s 

decision under an abuse-of-discretion standard. Commonwealth v. Dodge, 

77 A.3d 1263, 1274 (Pa. Super. 2013).3

As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. 

Super. 2010):

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 

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3

 We recognize that the sentencing guidelines do not apply to a revocation 

sentence. 204 Pa. Code § 303.1(b); Commonwealth v. Pasture, 107 A.3d 

21, 27 (Pa. 2014).
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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 a sentence is a question to be evaluated on a case-bycase basis. Hill, 210 A.3d at 1116. 

Herein, Appellant filed a timely appeal and preserved the issue in his 

post-sentence motion. Appellant has included a Pa.R.A.P. 2119(f) statement 

in his brief. Thus, we determine whether Appellant has raised a substantial 

question that the sentence imposed is inappropriate under the Sentencing 

Code. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015).

Appellant asserts that the sentence imposed was manifestly

unreasonable. Anders Brief at 9. Specifically, Appellant posits that a 

reasonable sentence would have been either eighteen to sixty months of 

imprisonment as recommended by Franklin County Adult Probation or nine to 

sixty months as counsel advanced in his argument at re-sentencing. Id. at 9, 

12. While counsel asserts in the Pa.R.A.P. 2119(f) statement that he was 

unable to advance a colorable argument that the sentence imposed was 

inconsistent with a specific provision of the Sentencing Code, Anders Brief at 

10, it is clear he contends that the court failed to consider Appellant’s drug 

addiction, which she alleged was at the root of her criminal conduct, and 

therefore, failed to consider mitigating factors. Id. at 12. We conclude that 

Appellant raised a substantial question that the sentence appealed is not 

appropriate under the Sentencing Code, but we find that the claim lacks merit.
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See Commonwealth v. Caldwell, 117 A.3d 763, 769-770 (Pa. Super. 2015) 

(en banc) (holding that an assertion that a sentence is excessive, in 

conjunction with a claim that the trial court failed to consider mitigating 

factors, raises a substantial question).

At sentencing, defense counsel had ample opportunity to provide the 

court with a background of relevant mitigating factors. N.T., 1/30/19, at 7–

9. Counsel averred that Appellant’s drug addiction “inspire[d] a lot of what’s 

happened here.” Id. at 8. Counsel emphasized that Appellant has children 

who will “inspire her to do better.” Id. at 7. Appellant, herself, addressed 

the court and also emphasized her reliance on drugs and her responsibility to 

her children. Id. at 9–10.

The sentencing judge has broad discretion in determining the proper 

penalty, and this Court accords the sentencing court great deference because 

the sentencing court is in the best position to view a defendant’s character, 

displays of remorse, defiance, or indifference, and the overall effect and 

nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 

2007) (quotations and citations omitted). As we have stated, “In particular, 

the court should refer to the defendant’s prior criminal record, his age, 

personal characteristics and his potential for rehabilitation.” Commonwealth 

v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).
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The trial court reviewed all relevant and available information, and 

informed Appellant of the basis for the sentence. In relevant part, the trial 

court stated:

[By the court:] Ms. Ayala, in imposing sentence, I’ve considered 

the Fulton County Adult Probation Department’s probation 

violation sentence summary sheet and all the attachments there 

to and I’ve considered the comments of counsel. I’ve considered 

your comments today and I’ve considered your prior record as laid 

out by the day. And I think it’s quite relevant to explain some 

things in regards to the [c]ourt’s sentence.

The first of which is your record begins, at least as far as we 

know, from 2009 with the paraphernalia charge out of North 

Hamilton County in Pennsylvania[. T]here’s a DUI out of West

Virginia in 2015, prostitution out of West Virginia in 2015, three 

retail thefts at the felony level in Virginia in 2016; Delaware, two 

counts in 2015; there’s an accident involving damage out of 

Delaware, 2015; another retail theft, felony level, out of this 

County in 2016; retail theft, felony level, out of this County in 

2017; there is a theft conviction out of the State of Maryland from 

2018; and then begins a number of pending theft offenses in the 

State of Maryland, State of West Virginia, Cumberland County, 

Pennsylvania and more out of Virginia that are all pending at some 

level.

What’s interesting to the [c]ourt based upon your 

comments, Ms. Ayala, is that you have a son who’s 9 years old 

and it would appear that your criminal career launched sometime 

around the time you began having children. So it’s a bit 

disingenuous in the [c]ourt’s mind that your children have been 

any kind of incentive for you to reform your conduct to comply 

with the law.

In fact, based on your criminal record, it would appear that 

you care very little for your children. Your repeated violations of 

the law have basically ensured that you will not be available to 

them as a mother and that is as basic [a] violation of human 

decency as you can have.

The mother of a child is basically the child’s last line of 

defense against the world. Sometimes there’s a father, 
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sometimes there’s not, but the mother in almost all cases is the 

last one available to the child. And if she can’t prioritize the child 

in her life and in your case children in your life[,] that’s quite 

frankly, pretty disgusting.

My opinion, Ms. Ayala, is—I fall somewhere between 

w[h]ere the Commonwealth is saying you’re not rehabilitatively 

capable and your attorney who says you absolutely are. It could 

be that your children are incentive for you to bring your behavior 

in conformance with the law. There’s not much evidence of that, 

if any.

The other side of it is, there’s a substantial amount of 

evidence that you’re going to continue to victimize the 

community. Retail theft, unlike other types of theft, has a rippling 

effect. You steal an individual’s car, you victimize that individual 

and maybe their family, it makes it difficult for them to provide 

transportation for themselves and others and their family.

You steal from a store, the store doesn’t just absorb that 

cost. In other words, the store will pass that cost along to 

everyone else who obeys the law and pays for the goods that are 

offered for sale and that results in higher prices. So your 

victimization is not just of the business and having to pay for 

security personnel and security systems and those things, but it 

goes beyond that to all the customers of that business. They now 

suffer because of your conduct. And that includes people in 

Virginia, West Virginia, North Hamilton County, the State of 

Maryland, and Fulton County.

That’s setting aside the fact that you committed similar 

offenses while under supervision for similar conduct. There can 

really be no better evidence that you have not reformed than to 

go out and do the same thing.

N.T., 1/30/19, 11–14.

The trial court set forth its considerations, explained the basis for the 

sentence, and considered the mitigating factors put forth by Appellant. 

Accordingly, we discern no abuse of discretion in the sentence imposed.
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Finally, we have independently reviewed the record in order to 

determine if counsel’s assessment about the frivolous nature of the present 

appeal is correct. Yorgey, 188 A.3d at 1195. After review of the issue raised 

by counsel and our independent review of the record, we conclude that an 

appeal in this matter is frivolous.4 Accordingly, we grant counsel’s petition 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: 09/24/2019

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4

 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 after probation revocation, and the discretionary aspects of 

sentencing. Cartrette, 83 A.3d at 1035–1037.