J-S70015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

SHAWN MILLER

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 882 MDA 2017

Appeal from the Judgment of Sentence May 4, 2017

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0000120-2015

BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 28, 2017

Appellant, Shawn Miller, appeals from the judgment of sentence 

entered in the Luzerne County Court of Common Pleas, following revocation 

of his probation. We affirm and grant counsel’s petition to withdraw. 

The relevant facts and procedural history of this case are as follows. 

On May 18, 2015, Appellant pled guilty to illegal dumping of 

methamphetamine waste at docket number CP-40-CR-0000120-2015; and 

on September 30, 2015, Appellant pled guilty to theft by unlawful taking at 

docket number CP-40-CR-0000840-2015.1 The court sentenced Appellant 

on December 9, 2015, to fifteen (15) to thirty (30) months’ imprisonment 

plus two (2) years’ probation at docket number 120-2015, to run

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1 18 Pa.C.S.A. §§ 3313(a), 3921(a), respectively. 
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concurrently with a sentence of eight (8) to sixteen (16) months’

imprisonment plus twelve (12) months’ probation at docket number 840-

2015. 

The court held a revocation of probation hearing on May 4, 2017. At 

the hearing, Appellant admitted he had violated his probation at both 

dockets by possessing drug paraphernalia. The court resentenced Appellant 

to two (2) to four (4) years’ imprisonment at docket number 120-2015, and 

one (1) year of probation at docket number 840-2015. On May 12, 2017, 

Appellant filed a pro se motion for reconsideration and a pro se notice of 

appeal; and Appellant’s counsel also filed a motion for reconsideration. The 

court denied Appellant’s counseled motion for reconsideration on May 15, 

2017, and counsel timely filed a notice of appeal on Appellant’s behalf that 

same day. On May 26, 2017, the court ordered Appellant to file a concise 

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

and Appellant timely complied. This Court dismissed Appellant’s pro se 

notice of appeal as duplicative on June 22, 2017. Counsel filed a motion to 

withdraw and an Anders brief on August 28, 2017. 

As a preliminary matter, appellate counsel seeks to withdraw his 

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 

159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) 

petition the Court for leave to withdraw, certifying that after a thorough 
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review of the record, counsel has concluded the issues to be raised are 

wholly frivolous; 2) file a brief referring to anything in the record that might 

arguably support the appeal; and 3) furnish a copy of the brief to the 

appellant and advise him of his right to obtain new counsel or file a pro se 

brief to raise any additional points the appellant deems worthy of review. 

Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance 

with these requirements is sufficient. Commonwealth v. Wrecks, 934 

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent 

requirements have been met, this Court must then make an independent 

evaluation of the record to determine whether the appeal is, in fact, wholly 

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 

(Pa.Super. 1997)). 

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw 

representation: 

Neither Anders nor McClendon[2]requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To 

repeat, what the brief must provide under Anders are 

references to anything in the record that might arguably 

support the appeal. 

* * *

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2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
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Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that 

arguably supports the appeal. 

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held: 

[I]n 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. 

Id. at 178-79, 978 A.2d at 361. 

Instantly, appellate counsel filed a petition for leave to withdraw. The 

petition states counsel performed a conscientious review of the record and 

concluded the appeal is wholly frivolous. Counsel also supplied Appellant 

with a copy of the withdrawal petition, the brief, and a letter explaining 

Appellant’s right to proceed pro se or with new privately-retained counsel to 

raise any additional points Appellant deems worthy of this Court’s attention. 

In his Anders brief, counsel provides a summary of the facts and procedural 

history of the case. Counsel refers to facts in the record that might arguably 

support the issue raised on appeal and offers citations to relevant law. The 

brief also provides counsel’s reasons for concluding that the appeal is 

frivolous. Thus, counsel has substantially complied with the requirements of 

Anders and Santiago. 
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Appellant has filed neither a pro se brief nor a counseled brief with 

new privately-retained counsel; we will review the issue raised in the 

Anders brief:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN 

SENTENCING APPELLANT.

(Anders Brief at 5). 

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, and the discretionary aspects of sentencing. 

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013) 

(en banc) (explaining that, notwithstanding prior decisions which stated our 

scope of review in revocation proceedings is limited to validity of 

proceedings and legality of sentence, appellate review of revocation 

sentence can also include discretionary sentencing challenges). 

Appellant argues the court failed to consider as mitigating factors his 

drug addiction and the fact that he turned himself in to the authorities. 

Appellant complains the court abused its discretion when it resentenced 

Appellant following revocation of probation. As presented, Appellant’s issue 

challenges the discretionary aspects of his sentence.3 See Commonwealth 

v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (explaining claim that sentence is 

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3 Appellant preserved this claim in his motion for reconsideration of sentence 

and counsel included a statement pursuant to Pa.R.A.P. 2119(f) in his 

Anders brief. 
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manifestly excessive challenges discretionary aspects of sentencing); 

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal 

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating allegation court ignored 

mitigating factors challenges discretionary aspects of sentencing). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating that there is a substantial 

question as to the appropriateness of the sentence under the Sentencing 

Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); 

Pa.R.A.P. 2119(f). This Court must evaluate what constitutes a substantial 

question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825 

(Pa.Super. 2007). A substantial question exists “only when the appellant 

advances a colorable argument that the sentencing judge’s actions were 

either: (1) inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). 

A claim of excessiveness can raise a substantial question as to the 

appropriateness of a sentence under the Sentencing Code, even if the 

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at 

624. Bald allegations of excessiveness, however, do not raise a substantial 

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather, 

a substantial question exists “only where the appellant’s Rule 2119(f) 
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statement sufficiently articulates the manner in which the sentence violates 

either a specific provision of the sentencing scheme set forth in the 

Sentencing Code or a particular fundamental norm underlying the sentencing

process....” Id. See, e.g., Cartrette, supra (indicating claim that 

revocation court ignored appropriate sentencing factors raises substantial 

question). An allegation that the sentencing court failed to consider a 

specific mitigating factor, however, does not necessarily raise a substantial 

question. Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) 

(holding claim that sentencing court ignored appellant’s rehabilitative needs 

failed to raise substantial question). 

In the context of probation revocation and resentencing, the 

Sentencing Code provides, in pertinent part: 

§ 9771. Modification or revocation of order of 

probation

(a) General rule.—The court may at any time 

terminate continued supervision or lessen or increase the 

conditions upon which an order of probation has been 

imposed. 

(b) Revocation.—The court may revoke an order of 

probation upon proof of the violation of specified conditions 

of the probation. Upon revocation the sentencing 

alternatives available to the court shall be the same as 

were available at the time of initial sentencing, due 

consideration being given to the time spent serving the 

order of probation.

(c) Limitation on sentence of total 

confinement.—The court shall not impose a sentence of 

total confinement upon revocation unless it finds that:
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(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 not 

imprisoned; or 

(3) such a sentence is essential to vindicate the 

authority of the court. 

* * *

42 Pa.C.S.A. § 9771(a)-(c). “The reason for revocation of probation need 

not necessarily be the commission of or conviction for subsequent criminal 

conduct. Rather, this Court has repeatedly acknowledged the very broad 

standard that sentencing courts must use in determining whether probation 

has been violated.” Commonwealth v. Colon, 102 A.3d 1033, 1041 

(Pa.Super. 2014), appeal denied, 631 Pa. 710, 109 A.3d 678 (2015). 

“[T]he revocation of a probation sentence is a matter committed to the 

sound discretion of the trial court and that court’s decision will not be 

disturbed on appeal in the absence of an error of law or an abuse of 

discretion.” Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super. 

2006). See also Commonwealth v. Hoover, 909 A.2d 321, 322 

(Pa.Super. 2006). Following the revocation of probation, the court may 

impose a sentence of total confinement if any of the following conditions 

exist: the defendant has been convicted of another crime; the conduct of the 

defendant indicates it is likely he will commit another crime if he is not 

imprisoned; or, such a sentence is essential to vindicate the authority of the 
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court. See 42 Pa.C.S.A. § 9771(c). The Sentencing Guidelines do not apply 

to sentences imposed following a revocation of probation. Commonwealth 

v. Ferguson, 893 A.2d 735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 

788, 906 A.2d 1196 (2006). The record as a whole can be used to evaluate 

the sentencing court’s consideration of the facts of the case and the 

defendant’s character. Commonwealth v. Crump, 995 A.2d 1280, 1283 

(Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). See 

also Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013) 

(explaining where revocation court presided over defendant’s no contest plea 

hearing and original sentencing, as well as his probation revocation hearing 

and sentencing, court had sufficient information to evaluate circumstances of 

offense and character of defendant when sentencing following revocation). 

Instantly, Appellant’s complaint that the sentencing court did not 

adequately consider specific mitigating factors (his history of drug abuse and 

that he turned himself in to the authorities) and his bald claim of sentence 

excessiveness arguably do not raise substantial questions meriting review. 

See Mouzon, supra. Nevertheless, we observe the court initially sentenced 

Appellant on December 9, 2015, to an aggregate sentence of fifteen to thirty 

months’ incarceration plus two years’ probation for both docket numbers. 

Appellant violated his probation by possessing drug paraphernalia, which he 

admitted at the revocation hearing on May 4, 2017. When the court revoked

Appellant’s probation, defense counsel asked the court to consider a 
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sentence lower than a state sentence. The court rejected defense counsel’s 

request, explaining parole and probation had not worked for Appellant,

considering his criminal record of eighteen prior revocations and twenty-one 

guilty pleas. The court indicated it had given Appellant a chance to reform

that Appellant simply did not take. The court resentenced Appellant to two 

(2) to four (4) years’ imprisonment at docket number 120-2015, and one (1) 

year of probation at docket number 840-2015. The judge who presided over 

Appellant’s probation revocation hearing was the same jurist who had 

presided over Appellant’s initial bench trial and sentencing, so the court had 

sufficient information to evaluate the circumstances of Appellant’s case as 

well as his character. See Carrillo-Diaz, supra. The record confirms the 

court imposed a sentence of total confinement consistent with Section 

9771(c). See 42 Pa.C.S.A. § 9771(c). See also Commonwealth v. 

Malovich, 903 A.2d 1247 (Pa.Super. 2006) (holding record evidenced that 

court imposed sentence of total confinement following revocation of 

appellant’s probation to vindicate court’s authority, where appellant had not 

complied with previous judicial efforts such as drug court, had not “been 

putting anything into” court-imposed rehabilitation efforts, and it was 

important for appellant to appreciate seriousness of his actions; record as 

whole reflected court’s reasons for sentencing as well as court’s 

consideration of circumstances of appellant’s case and character); 

Commonwealth v. Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (holding 
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appellant’s continued drug use as well as his resistance to treatment and 

supervision, was sufficient for court to determine appellant would likely 

commit another crime if not incarcerated); Commonwealth v. Aldinger, 

436 A.2d 1196 (1981) (explaining sentence of total confinement was proper 

where record reflected appellant had violated probation by using drugs; 

court considered circumstances giving rise to revocation proceeding and 

appellant’s character). 

Moreover, in its opinion, the trial court correctly analyzed and 

discussed Appellant’s issue as follows:

At the resentencing hearing, a colloquy was conducted and 

the Pre–Sentence Investigation (PSI) was discussed. The 

Commonwealth argued that [Appellant] should be 

sentenced to a state sentence. The Commonwealth further 

asserted that [Appellant] has an extensive record and

anything less than state sentence would be less than he 

already had received in the first instance. 

[Appellant’s counsel] contends that [Appellant] had turned 

himself in and is taking full responsibility for both of the 

revocations by admitting to them. [Appellant’s counsel] 

further asserted that [Appellant] has taken responsibility 

for his actions and this change in his attitude and behavior 

is important and should be considered. 

The record further establishes the following sentencing 

factors that were reviewed and considered:

THE COURT: Your Pre-Sentence Investigation is 

just filled with treatment option after treatment 

option, IPP, parole, inpatient, outpatient, DRC and 

the majority of these do involve drug use. There’s 

no doubt, you’re fortunate you’re still alive because 

the majority of these involved crimes that involve 

drugs. ... My fear is that the Pre-Sentence 

investigation from [two years] ago...has very serious 
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charges. Driving while you’re drunk, heroin needles 

in the car, high speed chases with the police, risking 

catastrophe by covering yourself in gasoline, in an 

apartment when the police come in and find you. 

It’s frightening when we read so many residences 

that you broke into...people’s homes you broke into. 

You’ve had so many treatments throughout the 

course of this. You’ve had revocations of parole. 

You violated [your] parole when you got arrested 

and tested positive for valium, for methadone. You 

were arrested for driving with false ID, and having 

four syringes, a spoon and heroin. The list goes on 

and on and for the majority of these, you’re on 

parole or probation while it’s still happening. You 

have to get serious about it, sir, because you’re 

living on borrowed time because this is your whole 

life...page after page. 

Here, the Sentencing Court has clearly and expressly 

complied with the requirements of 42 Pa.C.S. § 9721(b) by 

imposing a sentence 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. The record 

demonstrates a complete review of [Appellant’s] past, the

crimes committed and the impact on society. 

Accordingly, no meritorious issues for appeal exist with 

regard to [Appellant’s] alleged [errors] complained of on 

appeal. 

(Trial Court Opinion, filed June 23, 2017, at 5-6) (internal citations omitted). 

Following our independent review of the record, we conclude the appeal is 

wholly frivolous. See Palm, supra. Accordingly, we affirm the judgment of 

sentence and grant counsel’s petition to withdraw. 

Judgment of sentence affirmed; counsel’s petition to withdraw is 

granted. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2017