J-S11042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM EDWARD LEWIS,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1468 WDA 2019

Appeal from the Judgment of Sentence Entered July 1, 2019

in the Court of Common Pleas of Blair County 

Criminal Division at No(s): CP-07-CR-0001568-2011, 

CP-07-CR-0002422-2008, CP-07-CR-0002424-2008, 

CP-07-CR-0002438-2008

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2020

William Edward Lewis (“Lewis”) appeals from the judgment of sentence 

imposed following the revocation of his probation. Additionally, Russell J. 

Montgomery, Esquire (“Attorney Montgomery”), has filed a Petition to 

Withdraw as counsel, and a brief pursuant to Anders v. California, 386 U.S. 

738 (1967). We grant counsel’s Petition to Withdraw, and affirm Lewis’s 

judgment of sentence.

Regarding docket No. CP-07-CR-0002424-2008 (“No. 2424-2008”), 

Lewis pled guilty to criminal trespass and terroristic threats on November 7, 

2008. See 18 Pa.C.S.A. §§ 3505(a)(1)(ii), 2706(a)(1). The trial court 
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sentenced Lewis to a term of 3 years of probation for his conviction of criminal 

trespass, and 2 years of probation for the terroristic threats conviction.1

On the same date, Lewis pled guilty, at docket No. CP-07-0002438-2008 

(“No. 2438-2008”), to escape. See 18 Pa.C.S.A. § 5121(a). The trial court 

sentenced Lewis to a term of 1 year of probation.2

Regarding docket No. CP-07-CR-0002422-2008 (“No. 2422-2008”), on 

August 14, 2009, Lewis pled guilty to arson and burglary. See 18 Pa.C.S.A. 

§§ 3301(a)(1)(i), 3502(a). The trial court sentenced Lewis to serve an 

aggregate term of 10 years of probation, concurrently with the probationary 

term he was serving at that time. Lewis was also ordered to comply with 

special conditions and complete treatment requirements, and to pay 

restitution and costs of prosecution.

On September 9, 2011, Lewis pled guilty, at docket No. CP-07-CR0001568-2011 (“No. 1568-2011”), to prohibited offensive weapons, theft 

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1

It is unclear whether the trial court directed these sentences to run 

concurrently with or consecutive to one another, as the Sentencing Order does 

not appear in the certified record. See Commonwealth v. Preston, 904 

A.2d 1, 7 (Pa. Super. 2006) (en banc) (stating that “the responsibility rests 

upon the appellant to ensure that the record certified on appeal is complete 

in the sense that it contains all of the materials necessary for the reviewing 

court to perform its duty.”).

2 Similarly, absent the Sentencing Order on this docket, it is unclear whether 

the trial court directed this probationary term to be served concurrently with 

or consecutive to the sentence imposed at No. 2424-2008.
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from a motor vehicle, and possession of a small amount of marijuana. See

18 Pa.C.S.A. §§ 908(a), 3934; 35 P.S. § 780-113(a)(31). The trial court 

sentenced Lewis to an aggregate term of 2 years of probation. The trial court 

also directed Lewis to comply with all special conditions of probation, and to 

pay costs and fines.

3

The subsequent procedural history of this case is convoluted, and 

includes multiple probation revocations and revocation sentencings.

Ultimately, Lewis appeared before the revocation court for a Gagnon 

II4 hearing on April 18, 2019, based on technical violations of his probation

(i.e., changing his address without permission, failing to maintain regular 

contact with his supervising agent, and use or possession of a narcotic). 

During the hearing, Lewis stipulated that he was in violation of his probation. 

The court deferred sentencing and directed the preparation of a pre-sentence 

investigation report (“PSI”). During the sentencing portion of the Gagnon II

proceedings on July 1, 2019, the revocation court addressed concerns with 

the PSI, and heard sentencing arguments from both the Commonwealth and 

defense counsel. The revocation court also reviewed the Sentencing Order 

with both parties and Lewis’s probation officer before entering it on the record. 

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3 The Sentencing Order does not specify whether this probationary term was 

to be served consecutive to or concurrently with any other probationary term 

he was still serving at that time.

4 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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At No. 2422-2008, the court revoked Lewis’s probation for both the 

burglary and arson convictions, and sentenced him to serve concurrent terms 

of 2 to 4 years in prison. Additionally, the revocation court determined that 

Lewis had already served the maximum sentences for his convictions at Nos. 

2438-2008, 2424-2008, and 1568-2011, and ordered those cases closed. 

However, the court noted that Lewis would remain responsible for any 

remaining costs, fines and restitution originally imposed for his terroristic 

threats conviction at No. 2424-2008.

On July 11, 2019, Lewis filed a Motion for Modification of Sentence, 

asserting that his revocation sentence is excessive because the revocation 

court did not consider the relevant sentencing factors. The revocation court 

conducted a hearing, and subsequently entered a Memorandum Opinion and 

Order denying Lewis’s Motion for Modification of Sentence on September 16, 

2019.
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On September 25, 2019, Lewis filed a Notice of Appeal at each docket,

5

with each Notice identifying all four docket numbers.6 The revocation court 

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5 We observe that Lewis’s Notice of Appeal is facially untimely, as “[a] motion 

to modify a sentence imposed after a revocation [of probation] ... will not toll 

the 30-day appeal period." Pa.R.Crim.P. 908(E); see also id., cmt. 

(explaining that a notice of appeal must be filed within 30 days of the 

imposition of sentence, unless the sentencing judge expressly grants 

reconsideration). However, in its July 1, 2019, Sentencing Order, the 

revocation court expressly stated that Lewis would have 10 days to file a postsentence motion, and an additional 30 days to file an appeal following the 

entry of an order denying the motion. Because the revocation court’s 

misstatement of the appeal period is a “breakdown in the court’s operation,” 

we decline to quash the appeal on this basis. See Commonwealth v. 

Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (declining to quash facially 

untimely appeal because the sentencing court misstated the appeal period 

after imposing a revocation sentence). 

6 On October 17, 2019, this Court entered an Order directing Lewis to show 

cause why his appeal should not be quashed in light of Commonwealth v. 

Walker, 185 A.3d 969, 977 (Pa. 2018) (stating that “when a single order 

resolves issues arising on more than one lower court docket, separate notices 

of appeal must be filed. The failure to do so will result in quashal of the 

appeal.” (citing Pa.R.A.P. 341)). See also Commonwealth v. Creese, 216 

A.3d 1142, 1144 (Pa. Super. 2019) (quashing an appeal, pursuant to Walker,

where the appellant filed a notice of appeal at each docket number, but each 

notice of appeal contained multiple docket numbers). Lewis did not file a 

response, and this Court discharged the show-cause Order. Recently, this 

Court, sitting en banc, held that where separate notices of appeal are filed at 

each of multiple docket numbers, the inclusion of multiple docket numbers on 

each notice of appeal does not invalidate the notices of appeal. See

Commonwealth v. Johnson, 2020 PA Super 164, at *4 (Pa. Super. filed July 

9, 2020) (en banc); Commonwealth v. Larkin, 2020 PA Super 163, at *3 

(Pa. Super. filed July 9, 2020) (en banc). In light of this Court’s decisions in 

Johnson and Larkin, we decline to quash Lewis’s appeal.
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subsequently directed Lewis to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal, and Lewis timely complied.7 

We must first determine whether Attorney Montgomery has complied 

with the dictates of Anders in petitioning to withdraw from representation. 

See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en 

banc) (stating that “[w]hen faced with a purported Anders brief, this Court 

may not review the merits of any possible underlying issues without first 

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to 

Anders, when an attorney believes that an appeal is frivolous and wishes to 

withdraw as counsel, he or she must

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record and 

interviewing the defendant, counsel has determined the appeal 

would be frivolous, (2) file a brief referring to any issues in the 

record of arguable merit, and (3) furnish a copy of the brief to 

defendant and advise him of his right to retain new counsel or to 

raise any additional points that he deems worthy of the court’s 

attention. The determination of whether the appeal is frivolous 

remains with the [appellate] court.

Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012) 

(citations omitted).

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7 By an Order entered December 12, 2019, this Court dismissed Lewis’s appeal 

due to counsel’s failure to file an appellate brief. Counsel subsequently filed 

an Application to Reinstate the Appeal, which this Court granted. On 

December 26, 2019, counsel filed the Petition to Withdraw as Counsel and 

Anders Brief.
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Additionally, the Pennsylvania Supreme Court has determined that a 

proper 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.

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

In the instant case, Attorney Montgomery has complied with the 

requirements of Anders by indicating that he carefully and thoroughly 

reviewed the record, and determined that Lewis’s appeal is wholly frivolous. 

Further, Attorney Montgomery attached to his Petition to Withdraw a copy of 

the letter he sent to Lewis, informing him of Attorney Montgomery’s intention 

to withdraw, and advising him of his right to proceed pro se, retain alternate 

counsel, and file additional claims.8 Finally, Attorney Montgomery’s Anders

Brief meets the standards set forth in Santiago. Because Attorney 

Montgomery has complied with the procedural requirements for withdrawing 

from representation, we will independently review the record to determine 

whether Lewis’s appeal is, in fact, wholly frivolous.

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8 Lewis did not file a pro se appellate brief, nor did he retain alternate counsel 

for this appeal.
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In the Anders Brief, Attorney Montgomery states that Lewis wishes to 

challenge the discretionary aspects of his sentence. Anders Brief at 7. Lewis 

argues that he should have received a sentence of probation, rather than a 

new prison term. Id. at 5.

Lewis challenges the discretionary aspects of his sentence, from which 

there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d 

359, 363 (Pa. Super. 2013). Prior to reaching the merits of a discretionary 

sentencing issue,

[this Court conducts] 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. [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 the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (quotation marks and some 

citations omitted).

Here, Lewis filed a timely appeal and preserved his sentencing claim in 

Motion for Modification of Sentence. Although we note the absence of the 

requisite Pa.R.A.P. 2119(f) statement in the Anders Brief, “[w]here counsel 

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

separate Pa.R.A.P. 2119(f) statement. Hence, we do not consider counsel’s 

failure to submit a Rule 2119(f) statement as precluding review of whether 

[Lewis’s] issue is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 

(Pa. Super. 2015) (citations omitted). Attorney Montgomery states in the 
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Anders Brief that Lewis cannot show that the sentence was inappropriate or 

inconsistent with the fundamental norms underlying the sentencing process. 

Anders Brief at 7.

Nevertheless, we will consider the merits of Lewis’s claim (i.e., that he 

should have been sentenced to another probationary term) as part of our 

independent review. See generally Commonwealth v. Colon, 102 A.3d 

1033, 1043 (Pa. Super. 2014) (concluding that an “[a]ppellant’s claim that 

the trial court sentenced him to a term of total confinement based solely on a 

technical violation raises a substantial question for our review.”). Our 

standard of review is well settled:

The imposition of sentence following the revocation of probation 

is vested within the sound discretion of the trial court, which, 

absent an abuse of that discretion, will not be disturbed on appeal. 

An abuse of discretion is more than an error in judgment—a 

sentencing court has not abused its discretion unless the record 

discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will.

Id.

The reason for this broad discretion and deferential standard 

of appellate review is that the sentencing court is in the best 

position to measure various factors and determine the proper 

penalty for a particular offense based upon an evaluation of the 

individual circumstances before it. Simply stated, the sentencing 

court sentences flesh-and-blood defendants and the nuances of 

sentencing decisions are difficult to gauge from the cold transcript 

used upon appellate review. Moreover, the sentencing court 

enjoys an institutional advantage to appellate review, bringing to 

its decisions an expertise, experience, and judgment that should 

not be lightly disturbed.

The sentencing court’s institutional advantage is, perhaps, 

more pronounced in fashioning a sentence following the revocation 
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of probation, which is qualitatively different than an initial 

sentencing proceeding. At initial sentencing, all of the rules and

procedures designed to inform the court and to cabin its 

discretionary sentencing authority properly are involved and play 

a crucial role. However, it is a different matter when a defendant 

appears before the court for sentencing proceedings following a 

violation of the mercy bestowed upon him in the form of a 

probationary sentence. For example, in such a case, contrary to 

when an initial sentence is imposed, the Sentencing Guidelines do 

not apply, and the revocation court is not cabined by Section 

9721(b)’s requirement that “the sentence imposed should call for 

confinement that is consistent with the protection of the public, the 

gravity of the offense as it relates to the impact on the life of the 

victim and on the community, and the rehabilitative needs of the 

defendant.” 42 Pa.C.S.A. § 9721.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and 

quotation marks omitted).

Upon revocation of probation, a sentencing court may choose from any 

of the sentencing options that existed at the time of the original sentence, 

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of 

total confinement upon revocation requires a finding that either “(1) the 

defendant has been convicted of another crime; or (2) the conduct of the 

defendant indicates that it is likely that he will commit another crime if he is 

no imprisoned; or (3) such a sentence is essential to vindicate the authority 

of the court.” Id. § 9771(c).

Moreover, “[i]n every case in which the court ... resentences an offender 

following revocation of probation, ... the court shall make as part of the record, 

and disclose in open court at the time of sentencing, a statement of the reason 

or reasons for the sentence imposed.” Id. § 9721(b); see also Pa.R.Crim.P. 
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708(D)(2) (providing that “[t]he judge shall state on the record the reasons 

for the sentence imposed.”). However, following the revocation of probation, 

a sentencing court need not undertake a lengthy discourse for its reasons for 

imposing a sentence or specifically reference the statutes in question. See 

Pasture, 107 A.3d at 28 (stating that “since the defendant has previously 

appeared before the sentencing court, the stated reasons for a revocation 

sentence need not be as elaborate as that which is required at initial 

sentencing.”).

During the Gagnon II hearing, Lewis’s counsel acknowledged Lewis’s 

life-long problem with addiction to controlled substances. N.T., 7/1/19, at 14, 

15. Counsel explained that Lewis’s mother had introduced him to cocaine and 

heroin when he was approximately 14 years old. Id. at 14. Additionally, 

counsel pointed out that Lewis had committed technical violations only, and 

had not been charged with new criminal offenses. Id. 

Lewis admitted that he had attempted suicide by taking “all [of his] 

psych medications two weeks after [he] was home.” N.T., 7/1/19, at 7. Lewis 

also acknowledged that his probation had been revoked, and he had been 

resentenced, on multiple other occasions. Id. at 9-10. Lewis additionally

exercised his right to allocution, at which time he stated as follows:

When I came home ... I was out there working. I was not out 

there robbing people like my past and breaking in and hurting 

people[,] you know. In a way[,] I feel like I am a victim. I got 

hooked backed on drugs[,] you know. I am willing to change now. 

I know I said that many times in my life[,] and I just keep going 
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down the wrong path[,] but I am willing to do whatever. Take 

this shot and go in inpatient .... 

Id. at 26.

Prior to imposing the revocation sentence, the revocation court noted 

that, “in the PSI[,] [] [Lewis] had made several assertions that [he] was not 

going to comply with any sort of counseling or treatment[,] and [he] would 

just max out [his] sentences.” Id. at 19. The revocation court also indicated 

that Lewis’s prior record would be a “huge issue in terms of getting State 

[Intermediate Punishment].” Id. at 23, 26. The revocation court stated the 

following on the record:

[T]he problem with supervision is that you have to comply with all 

of the terms. I mean[,] your track record is pretty awful to say

the least. I mean[,] your PSI is full of times that you have been 

revoked and resentenced in the past by other [j]udges[,] who 

tried to reinstate probation in an effort to give you that second 

and third chance....

....

You had a suicide issue, and I know that you struggle with 

drug and alcohol addiction. The state does have things that can 

help you with that, but you have to want to be different. We offer 

you programs, but you have to want to be different.

Id. at 27-28. 

Further, in its Opinion, the revocation court explained the reasons for 

imposing its sentence as follows:

[Lewis] had almost three dozen misconducts in state prison 

when previously incarcerated for a period of eighteen (18) 

months. He engaged in obstructive and insubordinate behavior 

when incarcerated in a Lawrence County Prison. During these 

periods of incarceration, [Lewis] also refused to complete 
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recommended drug treatment plans. Instead, [Lewis] stated that 

he intended to “max out” his sentences. After release from 

incarceration and within twelve (12) days of completing a drug 

and alcohol evaluation for Lawrence County, [Lewis] overdosed on 

his psychiatric medication and was hospitalized. Approximately 

five[-]and[-]a[-]half months later[, Lewis] was reported by his 

[f]ather to be in in-patient detox and using heroin daily. The 

treatment provider for [Lewis] had closed out services, showing 

that the last contact was a “no-show” for a psychological 

evaluation scheduled by Lawrence County. [Lewis’s] family 

reported ongoing concerns with his use of drugs since an overdose 

in June [] 2018. State Parole and Probation was unable to reach 

[Lewis] from July 3, 2018[,] until August 24, 2018, despite daily 

attempts and [Lewis] was declared an absconder. Ultimately, 

[Lewis] was located in February [] 2019. Found on his person at 

the time was a heroin kit, needles, and Narcan. His girlfriend at 

the time of his apprehension indicated that she had to save him 

numerous times from overdosing. 

Further ..., [Lewis] acknowledged a “life-long” addiction 

problem. [Lewis] confirmed his past history of unstable mental 

health, as well. Finally, despite the [d]efense ultimately 

acknowledging in its brief that [Lewis] was not eligible for the drug 

court program in Lawrence County and despite the benefit for the 

information in the PSI, [d]efense [c]ounsel still sought probation.

It is unfortunate that [Lewis’s] prior record did not afford 

him the benefit of a State Intermediate Punishment program. 

However, this [c]ourt believes that [Lewis’s] failure to avail 

himself of programming previously offered and his apparent cooccurring mental health and drug addiction issues required more 

than a probation sentence could provide, particularly in light of his 

dismal performance while on supervision in the past.

Trial Court Opinion, 10/16/19, at 7-8.

The record confirms that the revocation court was provided with 

sufficient information to make a fully informed sentencing decision following 

the revocation of Lewis’s probation, and that the court adequately considered 

the relevant sentencing factors. Moreover, where, as here, “the sentencing 
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judge had the benefit of a [PSI], it will be presumed that he or she was aware 

of the relevant information regarding the defendant’s character and weighed 

those considerations along with mitigating statutory factors.” 

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) 

(citation omitted); see also N.T., 7/1/19, at 4 (wherein the trial court stated 

that it had reviewed the PSI prior to the hearing). Discerning no abuse of 

discretion by the revocation court, we will not disrupt Lewis’s sentence on 

appeal.

Finally, our independent review of the record reveals no additional 

potentially meritorious claims that Lewis could raise on appeal. We therefore 

grant Attorney Montgomery’s Petition to Withdraw, and affirm Lewis’s 

judgment of sentence.

Petition to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/20/2020
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