from the Judgment of Sentence November 22, 2016 In the Court
of Common Pleas of Delaware County Criminal Division at No.:
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA,
J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and
Melissa R. Dempster, appeals from the Judgment of Sentence
entered following the revocation of her probation. On appeal,
Appellant challenges the discretionary aspects of her
sentence, arguing that, in imposing a term of one to two
years' imprisonment, the violation of probation
("VOP") court imposed a harsh and excessive
sentence. Appellant's counsel filed a Petition to
Withdraw as Counsel and a Brief pursuant to Anders v.
California, 386 U.S. 738 (1967), as elucidated by our
Supreme Court in Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). After a full
examination of all the proceedings, we find that this appeal
is frivolous. Accordingly, we affirm Appellant's Judgment
of Sentence and grant counsel's Petition to Withdraw.
October 1, 2015, Appellant entered a negotiated guilty plea
to one count of Retail Theft, graded as a misdemeanor of the
second degree. That same day, the trial court imposed the
negotiated sentence of two years' probation.
serving her probationary sentence under the trial court's
supervision, Appellant (1) failed to report to her probation
officer as directed; (2) overdosed on heroin and was
hospitalized; and (3) failed to pay $796.50 in court costs
and fines. See Request for Bench Warrant, filed
8/3/16. She was arrested and detained for approximately 75
days until her VOP hearing.
November 22, 2016, the trial court, sitting as the VOP court,
conducted a Gagnon II hearing. Appellant, who
participated via video conference and was represented by
counsel, stipulated to the above probation violations. N.T.,
11/22/16, at 3. The VOP court found that Appellant had
violated her probation and imposed the maximum sentence of
one to two years' incarceration. Id. at 7.
See 18 Pa.C.S. § 1104(2) (providing a maximum
term of imprisonment of "[t]wo years in the case of a
misdemeanor of the second degree."). The trial court
reasoned that its sentence would "drive home the
seriousness of [Appellant's] addiction" and provide
access to "state recovery programs" to treat
Appellant's serious heroin addiction after other
treatment options had been ineffective. Id. at
Appellant did not file a Post-Sentence Motion or a Motion to
Reconsider her sentence.
December 20, 2016, Appellant filed a timely Notice of Appeal.
January 6, 2017, the trial court entered an Order pursuant to
Pa.R.A.P. 1925(b) directing Appellant to file a concise
statement of matters complained of on appeal within
twenty-one days. Instead, on January 25, 2017,
Appellant's counsel filed a statement of intent to file
an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). On
February 2, 2017, the VOP court filed a brief Opinion
indicating that it would not opine on any issues given
counsel's intent to file an Anders brief.
See VOP Court Opinion, filed 2/2/17, at 1-2 (citing
Commonwealth v. McBride, 957 A.2d 752, 758 (Pa.
April 18, 2017, counsel for Appellant filed an
Anders Brief and a Petition to Withdraw as Counsel.
Counsel appended a copy of a letter addressed to Appellant
informing Appellant of counsel's Petition to Withdraw and
her right to retain new counsel or proceed pro se.
Appellant did not file a response.
Anders Brief, counsel raised one issue:
Whether the 1 to 2 year term of imprisonment imposed herein
is harsh and excessive under the circumstances?
Anders Brief at 1.
August 18, 2017, this Court certified this case for en
banc review ...