J-S81013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

GARY LEE ROSE

Appellant No. 1024 MDA 2018

Appeal from the Judgment of Sentence imposed May 29, 2018

In the Court of Common Pleas of Lycoming County

Criminal Division at No: CP-41-CR-0001072-2012

BEFORE: STABILE, J., DUBOW, J., and STEVENS,* P.J.E.

MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2019

Appellant, Gary Lee Rose, appeals from a judgment of sentence of six 

to twenty-four months’ imprisonment in a state correctional institution 

imposed following revocation of his probation for theft by deception.

1

Appellant's counsel has filed a petition to withdraw, alleging that this appeal 

is wholly frivolous, as well as a brief pursuant to Anders v. California, 386 

U.S. 738 (1967). We grant counsel leave to withdraw and affirm Appellant’s 

judgment of sentence. 

The trial court summarized the history of this case as follows:

[A]ppellant stole checks from his mother. He wrote several checks 

out to himself and his paramour wrote several checks out to 

herself. The Commonwealth charged the appellant with numerous 

____________________________________________

* Former Justice specially assigned to the Superior Court. 

1 18 Pa.C.S.A. § 3922.
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counts of forgery, theft by deception and receiving stolen 

property. On November 2, 2012, the appellant pled guilty to a 

consolidated count of theft by deception, graded as a 

misdemeanor of the first degree, and the court sentenced him to 

two years’ probation under the supervision of the Pennsylvania 

Board of Probation and Parole (PBPP) consecutive to all of the 

sentences the appellant was serving.2

The appellant was charged with a new criminal offense of bad 

checks. To keep the appellant on the street while his new charge 

was pending, the appellant was placed on a GPS monitor on 

August 4, 2017, as part of his conditions of his supervision. The 

appellant, however, failed to properly charge his GPS unit as 

instructed. To ensure that the appellant was properly charging 

his monitor, on November 15, 2017, his probation officer, Agent 

Joshua Kreiger, directed the appellant to report daily to charge his 

monitor in the lobby of the PBPP district office. Agent Kreiger 

advised the appellant of this requirement in person and in writing 

on form PBPP 348, which the appellant signed . . . The appellant 

reported as directed on November 16, 2017, but did not report 

thereafter. On November 29, 2017, Agent Kreiger called the 

appellant and told him to report on November 30, 2017 at 9:00 

a.m. to charge his GPS monitor. Not only did the appellant fail to 

report as directed, he cut off his GPS unit. On December 1, 2017, 

Agent Kreiger recovered the cut GPS unit in the parking lot of Van 

Campen Motors. Agent Kreiger attempted to contact the appellant 

at his residence, but he was not there and his paramour did not 

know where he was. On December 6, 2017, the court issued a 

bench warrant for the appellant’s arrest for absconding from 

supervision. The appellant was arrested on the bench warrant on 

or about January 24, 2018. 

The appellant’s final probation violation hearing was held on May 

29, 2018. Following that hearing, the court found that the 

appellant violated several conditions of his supervision. The court 

revoked the appellant’s probation and resentenced him to serve 

____________________________________________

2 Due to Appellant’s other sentences, his sentence of probation in the present 

case was not set to commence until December 6, 2018. Nevertheless, the 

trial court had the power to revoke his probation for a violation that occurred 

after he was sentenced but before his probation commenced. 

Commonwealth v. Ware, 737 A.2d 251, 253-54 (Pa. Super. 1999).
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six to twenty-four months' incarceration in a state correctional 

institution. 

On June 7, 2018, the appellant, who remained represented by 

counsel, filed a pro se motion to modify sentence and postsentence motion. In accordance with [Pa.R.Crim.P.] 576, the 

court directed the clerk of courts to forward the motion to the 

district attorney and the appellant’s counsel, and no action was 

taken on the appellant’s pro se filing. Counsel did not file any 

motions challenging the appellant’s sentence.

On June 22, 2018, the appellant filed a notice of appeal. The sole 

issue asserted in this appeal is that the trial court abused its 

discretion when imposing a probation violation resentencing of 6-

24 months’ incarceration in SCI Camp Hill. The appellant averred 

that the court should have imposed a county sentence of 6-12 

months’ [imprisonment] as specified in his letter to the court 

dated June 4, 2018.

Pa.R.A.P. 1925(a) Opinion, 9/28/18, at 1-3. The trial court reasoned that a 

state sentence was appropriate because “it made no sense to impose a county 

sentence in this case . . . The appellant was on state parole at the time and 

was not scheduled to begin his probation until December 2018. The appellant 

was facing the possibility of additional time in a state correctional institution 

for violating his state parole.” Id. at 4. Moreover, Appellant claimed during 

his revocation hearing that he suffered from paranoid schizophrenia. The 

court responded that he could receive treatment for mental health issues in 

state prison but not in county prison. Id. at 4-5.

On November 5, 2018, counsel for Appellant filed an Anders brief in 

this Court. On November 19, 2018, counsel filed a petition for leave to 

withdraw as counsel. The Anders brief raised two issues:
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I. Did the trial court abuse its discretion when imposing a resentence of six (6) to twenty-four months’ (24) incarceration in a 

state correctional institution?

II. Should an application to withdraw as counsel be granted where 

counsel has investigated the possible grounds of appeal and finds 

the appeal frivolous?

Anders Brief at 4.

Preliminarily, we note that Appellant’s pro se post-sentence motion was 

a legal nullity that did not toll the thirty-day appeal period because he was 

represented by counsel at the time of filing. Commonwealth v. Ali, 10 A.3d 

282, 293 (Pa. 2012). Appellant also filed his notice of appeal pro se even 

though trial counsel was representing him at that time. This misstep is not 

fatal to Appellant's appeal, because “this Court is required to docket a pro se

notice of appeal despite Appellant being represented by counsel[.]” 

Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016).

When, as here, counsel files an Anders brief, we may not review the 

merits of the underlying issues without first examining counsel's petition to 

withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 

2007) (en banc). Counsel must satisfy three procedural requirements when 

seeking leave to withdraw: she must (1) petition the court for leave to 

withdraw stating that, after making a conscientious examination of the record, 

she has determined that the appeal would be frivolous; (2) provide a copy of 

the brief to the defendant; and (3) advise the defendant that he has the right 

to retain private counsel, proceed pro se or raise additional arguments that 
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the defendant considers worthy of the court’s addition. Commonwealth v. 

Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

Here, counsel’s petition to withdraw enclosed her letter to Appellant 

advising that she was seeking permission to withdraw and providing Appellant 

with copies of the petition to withdraw and her Anders brief. Counsel asserted 

in her petition that she reviewed the record and concluded that the appeal is 

frivolous. Finally, her letter to Appellant notified him of his right to retain new 

counsel, proceed pro se, or raise any additional points he deemed worthy of 

this Court's attention. Accordingly, counsel satisfied Anders’ procedural 

requirements.

Next, we address whether counsel’s Anders brief complies with the 

substantive requirements of Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2007), which held 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. Id. at 361. The Anders 

brief must also 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. Id.

Here, counsel included a statement of the case, including its procedural 

history. Anders Brief at 5-7. Counsel also stated that she carefully reviewed 
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the record but could not find any meritorious issues. Lastly, she explained 

that the appeal was frivolous. Appellant insisted that his sentence of 6-24 

months’ imprisonment in state prison was excessive. Counsel pointed out that 

it was well within the trial court’s discretion to revoke Appellant’s probation 

for violating conditions of probationary supervision and to sentence him to 

state prison so that he could obtain treatment for his mental health condition. 

Thus, counsel satisfied the substantive requirements for a petition to 

withdraw.

We turn to the substantive issue raised in the Anders brief: whether 

Appellant’s sentence of 6-24 months’ imprisonment in state prison was 

excessive. We hold that this sentence was a proper exercise of the trial court’s 

discretion, since it was well within the five-year maximum for theft by 

deception and afforded Appellant the mental health treatment that he claimed 

to need. 

Aside from this issue, we must review the record for any other 

potentially non-frivolous issues. Commonwealth v. Dempster, 187 A.3d 

266, 271 (Pa. Super. 2018) (en banc). Having carefully reviewed the record, 

we find no other potentially non-frivolous issues. We therefore grant counsel’s 

petition to withdraw and affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/2019