J-S36023-19

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

GENE ALEL WOODS, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 9 MDA 2019

Appeal from the Judgment of Sentence Entered November 29, 2018

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

No(s): CP-06-CR-0004652-2016

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

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

Appellant, Gene Alel Woods, Jr., appeals from the judgment of sentence 

entered on November 29, 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 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.
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On December 13, 2016, Appellant entered a negotiated guilty plea to 

one count of disorderly conduct1 at Berks County Court of Common Pleas 

Docket Number CP-06-CR-0004652-2016 (“Docket 4652 of 2016”), and he 

was sentenced to one year of probation. On April 29, 2017, Reading Police 

Officer Adam L. Babbitt filed a complaint and affidavit charging Appellant with 

several violations of the Pennsylvania Crimes Code, docketed at Berks County 

Court of Common Pleas Docket Number CP-06-CR-2446 of 2017 (“Docket 

2446 of 2017”). On that docket, Appellant pled guilty to count one, 

aggravated assault; count four, resisting arrest; and count five, false 

identification to a law enforcement officer.2 He was sentenced to an aggregate 

term of imprisonment of twenty-one to forty-two months of imprisonment for 

counts one and four, followed by one year of probation for count five.

Thereafter, at Docket 4652 of 2016, the Berks County Office of Adult 

Probation and Parole alleged Appellant violated his probation by failure to 

report as directed, failure to notify change of address, having a new arrest, 

and failure to comply with chemical testing. At the Gagnon II3 hearing, 

Appellant admitted the probation violations. N.T., 11/29/18, at 2. The court 

revoked Appellant’s probation, and in keeping with the recommendation of the 

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1

 18 Pa.C.S. § 5503(a)(1).

2

 18 Pa.C.S. §§ 2702(a)(3), 5104, and 4914(a), respectively.

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (“Gagnon II”).
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Berks County Office of Adult Probation and Parole, imposed a sentence of 

special probation for one year at Docket 4652 of 2016, consecutive to the 

sentence at count five of Docket 2446 of 2017. Order, 11/29/18.

Appellant filed a pro se post-sentence motion on December 10, 2018, 

which the trial court denied the next day, and a timely, counseled notice of 

appeal. The trial court thereafter permitted counsel to withdraw and 

appointed conflict counsel. Conflict counsel then advised that he would be 

filing a petition to withdraw pursuant to Anders and Santiago. In its 

Statement in Lieu of Opinion, the trial court submits that it conducted an 

independent review of the record, and it “concurs with counsel’s determination 

that no meritorious issues exist for direct appeal.” Statement in Lieu of 

Opinion, 2/21/19, at 1.

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).
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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;

(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, 4/16/19, at ¶ 5. Additionally, counsel sent a letter to Appellant, and 

he attached a copy of the letter to his motion.4 Counsel informed Appellant 

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

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4

 Counsel’s initial letter to Appellant dated April 16, 2019, misinformed 

Appellant regarding when he could proceed pro se or with new counsel. 

Counsel’s subsequent clarification to Appellant pursuant to our order of April 

23, 2019, again failed to inform Appellant of his right to immediately proceed. 

See Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016) (clarifying 

that counsel’s letter to client shall inform client that upon counsel’s filing of 

petition to withdraw, client has immediate right to proceed in appeal pro se or 

by privately retained counsel). Following our subsequent order filed June 27, 

2019, counsel successfully informed Appellant by letter dated July 8, 2019, of 

Appellant’s immediate right to proceed pro se or with privately retained 

counsel. Appellant has not responded to counsel’s application to withdraw.
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Appellant of his rights in light of the motion to withdraw as counsel. 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.

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, cites to the record, and 

refers to an issue of arguable merit. Anders Brief at 5–8. Further, the brief 

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

counsel’s conclusion. Id. at 9–11. 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:
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A. Did not the lower court abuse its sentencing discretion by 

ordering Appellant to be placed on one year of probation 

consecutive to another of Appellant’s cases following an informal 

Gagnon II hearing where Appellant admitted a technical violation 

of probation, namely: a new conviction?

Anders Brief at 5.

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. W.H.M., 932 A.2d 155, 

163 (Pa. Super. 2007).

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

Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)):

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 

from is not appropriate under the Sentencing Code, 

42 Pa.C.S.A. § 9781(b).
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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. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001).

Appellant filed a timely appeal and preserved the issue in his postsentence motion. Appellant has not included a statement raising this issue in 

his brief pursuant to Rule 2119(f). However:

[i]n the non-Anders context, the defendant must “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. Where counsel files an 

Anders brief, this Court has reviewed the matter even absent a 

separate Pa.R.A.P. 2119(f) statement. See Commonwealth v. 

Wilson, 396 Pa. Super. 296, 578 A.2d 523 (1990); see also 

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

Hence, we do not consider counsel’s failure to submit a Rule 

2119(f) statement as precluding review of whether Appellant’s 

issue is frivolous.

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015); see also 

Commonwealth v. Bynum-Hamilton, 135 A.3d 179 (Pa. Super 2016) (the 

appellant’s failure to file a separate Rule 2119 statement where counsel has 

sought to withdraw does not preclude review of whether the appellant’s issue 

is frivolous). Thus, we consider whether Appellant has raised a substantial 

question.

“[A]n appeal is permitted only after this Court determines that there is 

a substantial question that the sentence was not appropriate under the 

sentencing code.” Zeigler, 112 A.3d at 661 (quoting Cartrette, 83 A.3d at 

1042). When considering the merits of a discretionary-aspects-of-sentencing 
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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).5

Appellant asserts that the trial court abused its discretion in imposing a 

sentence of probation consecutive, rather than concurrent to the sentence at 

count five of Docket 2446 of 2017. This claim does not raise a substantial 

question. We have stated:

A court’s exercise of discretion in imposing a sentence 

concurrently or consecutively does not ordinarily raise a 

substantial question. Commonwealth v. Mastromarino, 2 A.3d 

581, 587 (Pa. Super. 2010), appeal denied, 609 Pa. 685, 14 A.3d 

825 (2011). Rather, the imposition of consecutive rather than 

concurrent sentences will present a substantial question in only 

“the most extreme circumstances, such as where the aggregate 

sentence is unduly harsh, considering the nature of the crimes and 

the length of imprisonment.” Commonwealth v. Lamonda, 52 

A.3d 365, 372 (Pa. Super. 2012), appeal denied, 621 Pa. 677, 75 

A.3d 1281 (2013).

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en 

banc).

Even if Appellant raised a substantial question, the issue is not 

meritorious. The record reveals that Appellant’s guilty plea in 2016 to 18 

Pa.C.S. § 5503, graded as a third degree misdemeanor, carried a statutory 

maximum penalty of twelve months of imprisonment. The offense gravity 

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5

 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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score was one, and Appellant’s prior record score was five, Guideline Sentence 

Form, 1/27/17, and the standard range minimum was RS–6 ± 3. 204 Pa. 

Code § 303.16(a). Thus, the trial court’s original sentence following 

Appellant’s guilty plea to disorderly conduct of one year of probation was in 

the mitigated range and therefore, lenient.

Upon revocation of probation due to his conviction for aggravated 

assault, resisting arrest, and false identification to law enforcement at Docket 

2446 of 2017, Appellant’s revocation sentence of one year consecutive 

probation does not remotely approach “clearly unreasonable,” as asserted by 

the Commonwealth. Commonwealth’s Brief at 7. Appellant admitted that he 

failed to adhere to the conditions of probation originally imposed upon him, 

and the trial court, upon revocation of the probation, imposed a sentence of 

probation once again, made consecutive to the sentence of Appellant’s new 

crime. N.T., 11/29/18, at 2, 4. There was no abuse of discretion by the trial 

court. Pasture, 107 A.3d at 28 (“We emphasize a trial court does not 

necessarily abuse its discretion in imposing a seemingly harsher postrevocation sentence where the defendant received a lenient sentence and then 

failed to adhere to the conditions imposed on him.”).

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 
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by counsel6 and our independent review of the record, we conclude that an 

appeal in this matter is frivolous.7 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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6

 To the extent Appellant asserts in the body of his brief that prior counsel 

was ineffective, Anders Brief at 10, Appellant acknowledges that claims of 

ineffective assistance of counsel are to be deferred to PCRA review. Id.;

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).

7

 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.