Com. v. Beer, S., Com. v. Beer, S. No. 1936 WDA 2016

Appellant Storm Cloud Beer was convicted (April 19, 2013) of persons not to possess a firearm at docket 606-2012; that conviction formed the basis for alleged probation violations in three older dockets (11-2007, 498-2006, 494-2006).
On May 3, 2013, after finding probation violations (and taking judicial notice of the new conviction), the revocation court resentenced Beer to terms of confinement on the three prior dockets to be served consecutively to each other and consecutively to the 606-2012 sentence.
Beer did not file post-sentence motions or a direct appeal. He later filed a timely PCRA petition (April 16, 2014) claiming counsel was ineffective for failing to file post-sentence motions and a direct appeal; the PCRA court denied relief after a hearing.
This Court reversed the PCRA denial, reinstated Beer’s direct-appeal rights nunc pro tunc, and Beer then appealed the revocation court’s May 3, 2013 sentence.
Appellate counsel filed an Anders/Santiago brief seeking permission to withdraw, identifying a potential challenge to the discretionary aspects (consecutive vs. concurrent) of the revocation sentence. The Commonwealth did not file a brief.
The Superior Court concluded Beer waived his discretionary-sentencing challenge by failing to object at sentencing or file a post-sentence motion; even if preserved the claim would not present a substantial question. The court affirmed the judgment and granted counsel’s petition to withdraw.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the discretionary aspects of Beer’s revocation sentence (consecutive vs concurrent) are appealable	Beer requested that revocation sentences run concurrent with docket 606-2012 and effectively challenged the court’s sentencing discretion	Commonwealth/revocation court: Beer failed to preserve the claim at sentencing or by post-sentence motion; discretionary decision was within court’s authority	Waived for failure to preserve; appeal frivolous; issue would not raise a substantial question even if preserved
Whether counsel may withdraw under Anders/Santiago	Appellate counsel contends no non-frivolous issues exist after review of record	Court must independently review to confirm frivolousness before permitting withdrawal	Court found Anders brief compliant, conducted independent review, and granted withdrawal

Anders v. California, 386 U.S. 738 (U.S. 1967) (procedural framework for counsel’s motion to withdraw when appeal is frivolous)
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (Anders obligations in Pennsylvania: required contents of counsel’s brief seeking withdrawal)
Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013) (four-part test for appellate review of discretionary-sentencing claims)
Commonwealth v. Kalichak, 943 A.2d 285 (Pa. Super. 2008) (waiver of sentencing claims not preserved at sentencing or in post-sentence motion)
Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) (challenge to consecutive/concurrent sentencing often fails to raise a substantial question)
Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super. 2015) (appellate court must independently evaluate the frivolousness of an Anders appeal)
Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (discussion on limits of appellate relief for discretionary sentencing decisions)