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March 19, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Cataldo, J.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 189 WDA 2025
• Precedential Status: Non-Precedential

• Judges: McLaughlin

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.4K)

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Lead Opinion

                        by McLaughlin

J-A23030-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON ALLEN CATALDO :
:
Appellant : No. 189 WDA 2025

Appeal from the Judgment of Sentence Entered January 31, 2025
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000814-2019

BEFORE: PANELLA, P.J.E., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED: March 19, 2026

Jason Allen Cataldo appeals from the judgment of sentence following

the revocation of his probation for technical violations.1 Cataldo’s counsel has

filed an Anders2 brief and a petition to withdraw as counsel. Following this

Court’s recent decision in Commonwealth v. Seals, ___ A.3d ___, 2026 PA

Super 29, 2025 WL 4234323 (Pa.Super. filed Feb. 17, 2026) (en banc), and

because Cataldo’s sentence exceeded the 30-day maximum sentence

authorized by 42 Pa.C.S.A. § 9771(c)(2)(ii) for a second technical violation,

---

1 A “technical violation” is “[a] violation of the specific terms and conditions of

a defendant’s probation, other than by the commission of a new crime of which
the defendant is convicted or found guilty by a judge or jury or to which the
defendant pleads guilty or nolo contendere in a court of record.” 42 Pa.C.S.A.
§ 9774.1(k).

2 Anders v. California, 386 U.S. 738 (1967).
J-A23030-25

we deny counsel’s petition, vacate Cataldo’s judgment of sentence, and

remand for resentencing.

In July 2019, Cataldo entered a guilty plea to criminal trespass.3 He was

ordered to be placed in the Erie County Treatment Court program for 10 years.

Cataldo’s probation was later revoked for failure to submit to a drug and

alcohol screening, on February 10, 2021, and he was resentenced to 11½ to

23 months’ incarceration followed by two years of probation.

On January 31, 2025, a second revocation of probation hearing was

held. At the hearing, Cataldo admitted to several violations of his probation,

including traveling outside of Erie County without his probation officer’s

permission, failing to complete drug and alcohol treatment, and failing to

report to his probation officer. See N.T., 1/31/25, 7-9. The court found

Cataldo in technical violation, revoked his probation, and resentenced him to

11½ to 23 months’ incarceration followed by two years of probation. He was

given a credit of 480 days for time served.

Cataldo filed a pro se notice of appeal, on February 11, 2025, but failed

to state the date of the order being appealed. This Court issued a rule to show

cause directing Cataldo, through his counsel, to clarify the order from which

he was appealing. Cataldo replied that he was appealing from the judgment

of sentence imposed on January 31, 2025. See Response to Order, filed

3/28/25, at ¶¶ 12, 13. Accordingly, the appeal is properly before us.

---

3 18 Pa.C.S.A. § 3503(a)(1)(ii).

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J-A23030-25

Before we address Cataldo’s claim, we must first determine whether

counsel has satisfied the procedural requirements to withdraw from the

representation when filing an Anders brief. 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”). To withdraw pursuant to Anders, counsel must:

1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel
has determined that the appeal would be frivolous; 2)
furnish a copy of the brief to the defendant; and 3) advise
the defendant that he or she has the right to retain private
counsel or raise additional arguments that the defendant
deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc). In the Anders brief, counsel seeking to withdraw 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).

If counsel meets all the above requirements, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

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J-A23030-25

is in fact wholly frivolous.” Id. at 355 n.5 (quoting Commonwealth v.

McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).

Here, counsel has complied with the above technical requirements. In

her Anders brief, counsel provided a summary of the procedural history and

facts of the case with citations to the record. Further, counsel’s brief includes

one issue that could arguably support the appeal, and counsel’s assessment

of why that issue is frivolous, with citations to the record and relevant legal

authority. In addition, counsel served Cataldo with a copy of the Anders brief

and advised him of his right to proceed pro se or retain a private attorney to

raise any additional points he deemed worthy of this Court’s review. Petition

to Withdraw, 6/16/25, at ¶ 5. Cataldo has not responded to counsel’s petition

to withdraw.4 We now proceed “to make a full examination of the proceedings

and make an independent judgment to decide whether the appeal is in fact

wholly frivolous.” Santiago, 978 A.2d at 355 n.5 (citation omitted).

Counsel’s Anders brief raises a challenge to the discretionary aspects

of the sentence and presents the following issue: “Whether the re-sentence of

the trial court is manifestly excessive, unreasonable and inconsistent with the

objectives of the Sentencing Guidelines?” Anders Br. at 5 (unpaginated).

---

4 On July 14, 2025, Cataldo filed a pro se document styled as “APPLICATION

FOR LEAVE TO APPEAL INTERLOCUTORY ORDER PURSUANT TO PA.R.A.P. 311
AND REQUEST FOR EMERGENCY RELIEF and “MOTION TO VACATE SENTENCE
DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, MISREPRESENTATION, AND
VIOLATIONS OF DUE PROCESS.” This document did not address the January
31, 2025 revocation order at issue in this appeal. This Court forwarded the
document to Cataldo’s counsel on July 15, 2025.

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J-A23030-25

Counsel concluded in her brief that this claim was meritless because the

court adequately considered the relevant sentencing factors under the

Sentencing Code when it sentenced Cataldo for violating his probation. Id. at

13 (unpaginated).

However, following the filing of counsel’s brief, this Court issued an en

banc decision in Seals in which we held that “a claim that the trial court failed

to adhere to [42 Pa.C.S.A. §] 9771(c) when resentencing a probationer to a

period of total confinement implicates the legality of the sentence, not its

discretionary aspects.” Seals, 2025 WL 4234323, at *11. Section 9771,

entitled “Modification or revocation of order of probation,” and discussed

below, is applicable here. In accordance with Seals, we find that Cataldo’s

sentencing claim implicates the legality of his sentence and is therefore

unwaivable. We thus address the merits of the issue.

“[T]he determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Atanasio, 997 A.2d 1181,

1183 (Pa.Super. 2010) (citation omitted).

In June 2024, substantial revisions to subsection (c) of section 9771

became effective. Seals, 2025 WL 4234323, at *5. The revisions

“substantially limited the court’s resentencing authority under subsection (c)”

and set forth a presumption against total confinement for technical violations

of probation. Id. at *6. The amended statute provides, in relevant part:

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J-A23030-25

(c) Limitation on sentence of total confinement.--There is a
presumption against total confinement for technical
violations of probation. The following shall apply:

(1) The court may impose a sentence of total confinement
upon revocation only if:

---

(iii) the court finds by a preponderance of the evidence that
the defendant committed a technical violation and any of
the following apply:

---

(E) The defendant absconded and cannot be safely diverted
from total confinement through less restrictive means.

(F) The technical violation involved an intentional and
unexcused failure to adhere to recommended programming
or conditions on three or more separate occasions and the
defendant cannot be safely diverted from total confinement
through less restrictive means. For purposes of this clause,
multiple technical violations stemming from the same
episode of events shall not constitute separate technical
violations.

(2) If a court imposes a sentence of total confinement
following a revocation, the basis of which is for one or more
technical violations under paragraph (1)(ii) or (iii), the court
shall consider the employment status of the defendant. The
defendant shall be sentenced as follows:

(i) For a first technical violation, a maximum period of 14
days.

(ii) For a second technical violation, a maximum
period of 30 days.

(iii) For a third or subsequent technical violation, the court
may impose any sentencing alternatives available at the
time of initial sentencing.

42 Pa.C.S.A. § 9771(c) (emphasis added).

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J-A23030-25

The revisions to subsection (c) thus “prohibit[] the court from imposing

a sentence of total confinement for a technical violation of probation, subject

to delineated exceptions, and imposes specific, relatively short maximum

sentences for a period of confinement imposed for a first or second technical

violation.” Seals, 2025 WL 4234323, at *7.

Here, the court revoked Cataldo’s probation for technical violations on

February 10, 2021 and January 31, 2025. Because Cataldo had two technical

violations, section 9771(c)(2)(ii) mandated a sentence of a maximum period

of 30 days of total confinement. Cataldo’s sentence of 11½ to 23 months of

total confinement is greater than the maximum authorized sentence for a

second technical probation violation. The court thus exceeded the statutory

authority to impose a sentence in excess of 30 days for a second technical

violation, and Cataldo’s sentence is illegal. Seals, 2025 WL 4234323, at *19.

We acknowledge that when an Anders brief has been filed and we

disagree with counsel that an appeal is frivolous, we would ordinarily remand

for counsel to file an advocate’s brief. See Commonwealth v. Wrecks, 931

A.2d 717, 721 (Pa.Super. 2007). However, where, as here, the issue

implicates the legality of the sentence, we may raise the issue sua sponte and

correct the illegality. See, e.g., Commonwealth v. Wolfe, 140 A.3d 651,

654 (Pa. 2016); Commonwealth v. Hankerson, 118 A.3d 415, 421 n.2, 422

(Pa.Super. 2015). Accordingly, we vacate Cataldo’s judgment of sentence and

remand for resentencing consistent with section 9771(c)(2).

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J-A23030-25

Judgment of sentence vacated. Case remanded with instructions.

Counsel’s petition to withdraw denied. Jurisdiction relinquished.

DATE: 3/19/2026

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