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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

JOHN HOWARD LEE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3880 EDA 2016

Appeal from the Judgment of Sentence November 10, 2016

In the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0001315-2011

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

MEMORANDUM BY OTT, J.: FILED NOVEMBER 08, 2018

John Howard Lee appeals from the judgment of sentence imposed 

November 10, 2016, in the Delaware County Court of Common Pleas. Upon 

stipulation to a technical violation of parole, the trial court re-sentenced Lee 

to 380 days full back time, to be aggregated with his existing state sentence 

with parole no sooner than his maximum date. Contemporaneous with this 

appeal, Lee’s counsel has filed a petition to withdraw from representation and 

an Anders brief. See Anders v. California, 386 U.S. 738 (1967); 

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). The sole issue

addressed in the Anders brief is a challenge to the discretionary aspects of 

Lee’s sentence. For the reasons below, we affirm, and grant counsel’s petition 

to withdraw.
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The facts of Lee’s underlying conviction are not pertinent to our 

disposition of his appeal. We briefly note that on May 5, 2011, Lee originally 

entered into a negotiated guilty plea to driving under the influence (“DUI”) 

(highest rate of alcohol/third or subsequence offense) and driving while 

license is suspended/revoked.1 That same day, the court sentenced Lee to an 

aggregate term of 18 to 30 months’ imprisonment, followed by two years’ 

probation. He subsequently violated the terms of his parole and, following a 

Gagnon II2 hearing on November 10, 2016, was sentenced to full back time 

of 380 days. This timely appeal followed.3

When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any of 

the substantive issues raised on appeal. See Commonwealth v. Bennett, 

124 A.3d 327, 330 (Pa. Super. 2015). Here, our review of the record reveals 

counsel has substantially complied with the requirements for withdrawal 

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1

 See 75 P.S. §§ 3802(c) and 1543(b)(1), respectively.

2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3

 On December 15, 2016, the trial court ordered Lee to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

On January 4, 2017, Lee’s counsel filed a statement of his intent to file an

Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4). On April 4, 2018, 

the trial court filed an opinion, stating that because counsel filed a Rule 

1925(c)(4) statement and expressed the intention to file an Anders brief, it 

would “refrain from entering any opinion on the merits” of Lee’s appeal. 

Opinion, 4/4/2018, at unnumbered 2.
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outlined in Anders, supra, and its progeny. Specifically, counsel requested 

permission to withdraw based upon his determination that the appeal is 

“wholly frivolous,”4filed an Anders brief pursuant to the dictates of 

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), furnished a 

copy of the Anders brief to Lee and advised Lee of his right to retain new 

counsel or proceed pro se. See Commonwealth v. Cartrette, 83 A.3d 1030, 

1032 (Pa. Super. 2013) (en banc). Moreover, our review of the record reveals 

no correspondence from Lee responding to the Anders brief. Accordingly, we 

will proceed to examine the record and make an independent determination 

of whether the appeal is wholly frivolous. See Commonwealth v. Flowers, 

113 A.3d 1246, 1248 (Pa. Super. 2015).

The only issue identified in counsel’s Anders brief challenges the 

appropriateness of Lee’s sentence:

At the Gagnon II hearing herein, Mr. Lee stipulated that he 

was in violation of his probation [sic]. The record reflects, 

however, that he has been engaged in various beneficial programs 

while imprisoned. These include drug and alcohol programs such 

as Alcoholics Anonymous meetings, and anger management 

programs.

The Judge nevertheless revoked his parole and resentenced him to serve his full back[t]ime of 380 days.

Counsel believes an issue of arguable merit exists as to 

whether that new sentence is harsh and excessive under the 

circumstances.

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4 See Application to Withdraw Appearance, 6/20/2018, at ¶ 3.
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This issue, however, is frivolous since the [trial court] had 

no discretion to impose any sentence other than full backtime for 

a parole violation. See Commonwealth v. Galletta, 864 A.2d 

532 (Pa. Super. 2004). Moreover, the Court had to take into 

consideration the fact that Mr. Lee violated his parole by 

committing his fourth DUI.

Anders Brief at 5 (record citations omitted).

Our review of a parole revocation hearing and concomitant sentence is 

well-established:

Unlike a probation revocation, a parole revocation does not 

involve the imposition of a new sentence. Commonwealth v. 

Mitchell, 429 Pa.Super. 435, 632 A.2d 934, 936 (1993). Indeed, 

there is no authority for a parole-revocation court to impose a new 

penalty. Id. Rather, the only option for a court that decides to 

revoke parole is to recommit the defendant to serve the alreadyimposed, original sentence. Id. ...

Therefore, the purposes of a court’s parole-revocation 

hearing—the revocation court’s tasks—are to determine whether 

the parolee violated parole and, if so, whether parole remains a 

viable means of rehabilitating the defendant and deterring future 

antisocial conduct, or whether revocation, and thus 

recommitment, are in order. Mitchell, 632 A.2d at 936, 937. ...

Following parole revocation and recommitment, the proper 

issue on appeal is whether the revocation court erred, as a matter 

of law, in deciding to revoke parole and, therefore, to recommit 

the defendant to confinement. Mitchell, 632 A.2d at 936. 

Accordingly, an appeal of a parole revocation is not an 

appeal of the discretionary aspects of sentence. Id.

As such, a defendant appealing recommitment cannot 

contend, for example, that the sentence is harsh and excessive. 

Galletta, 864 A.2d at 539. Such a claim might implicate 

discretionary sentencing but it is improper in a parole-revocation 

appeal. Id. Similarly, it is inappropriate for a parole-revocation 

appellant to challenge the sentence by arguing that the court 

failed to consider mitigating factors or failed to place reasons for 

sentence on the record. Commonwealth v. Shimonvich, 858 

A.2d 132, 135 (Pa. Super. 2004). Challenges of those types again 
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implicate the discretionary aspects of the underlying sentence, not 

the legal propriety of revoking parole. Id.

Commonwealth v. Kalichak, 943 A.2d 285, 290–291 (Pa. Super. 2008) 

(emphasis supplied).

As the Kalichak Court explained, and as acknowledged in the Anders

brief, “the only option for a court that decides to revoke parole is to recommit 

the defendant to serve the already-imposed, original sentence.” Id. at 290. 

As such, Lee’s claim that his re-sentence is harsh and excessive because the 

court ordered him to serve his full back time invokes a challenge to the 

discretionary aspects of sentencing, an issue that is not appropriate in an 

appeal from a parole revocation sentence. See id. at 291. Accordingly, we 

conclude Lee has failed to present any viable claim for our review. 

Because we agree with counsel’s assessment that this appeal is wholly 

frivolous, we affirm the judgment of sentence and grant counsel’s petition to 

withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/8/18