Com. v. Horning, G. ( 2022 )

J-S36043-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY RICHARD HORNING JR., :
:
Appellant : No. 709 EDA 2021
Appeal from the Judgment of Sentence Entered March 8, 2021
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001902-2019
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY RICHARD HORNING JR., :
:
Appellant : No. 710 EDA 2021
Appeal from the Judgment of Sentence Entered March 8, 2021
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002714-2019
BEFORE: LAZARUS, J., KING, J., AND COLINS, J.*:
MEMORANDUM BY COLINS, J.: FILED JANUARY 11, 2022
Appellant, Gary Richard Horning, Jr., appeals from the judgments of
sentence entered on March 8, 2021, imposed upon revocation of his parole.
With this appeal, Appellant’s counsel has filed an application to withdraw as
*Retired Senior Judge assigned to the Superior Court.
J-S36043-21
counsel and an Anders brief.1, 2 Upon review, we affirm Appellant’s
judgments of sentence and grant counsel’s application to withdraw.
The trial court set forth the factual procedural history as follows:
Appellant entered guilty pleas in two separate incidents. [At
docket] 1902-2019, Appellant pled guilty to prohibitive offensive
weapon1 and resisting arrest2 which involved his possession of an
electronic incapacitation device which was discovered after the
police responded to a domestic incident involving his ex-girlfriend
at a local delicatessen. [At docket] 2714-2019, he pled guilty to
resisting arrest in a second incident at the same delicatessen
which occurred less than two months later. On both occasions,
alcohol was a factor in Appellant’s behavior.
______
1 18 Pa.C.S. § 908.
2 18 Pa.C.S. § 5104.
On August 9, 2019, Appellant received sentences in both
cases of not less than four months nor more than 23 months in
Lehigh County Jail. He was also ordered to undergo drug and
alcohol testing and enroll in an alcohol treatment program…. Each
sentence was ordered to run concurrently with each other. He was
paroled effective December 16, 2019.
On October 18, 2020, ten months later, Appellant was
charged with offenses including strangulation, terroristic threats,
unlawful restraint, and simple assault.5 These offenses, which
involved domestic violence, resulted in a guilty plea to
strangulation and a sentence of not less than one year nor more
than two years in a state correctional institution.
______
5 See Lehigh County No. CR-3319-2020.
1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
2 On May 13, 2021, this Court consolidated the appeals sua sponte.
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A parole violation detainer was filed after Appellant’s arrest,
and a parole violation hearing was held after his conviction on the
strangulation charge. The parole violation also included failing to
report for drug testing seventeen times, testing positive for
methamphetamine, and being unsuccessfully discharged from
treatment. Appellant conceded that he violated the conditions of
his parole, and he was remanded to serve the balance of his
sentences. The original charges were ordered to run concurrently
with each other, but consecutively to the new conviction. He was
also ordered to serve his sentence in a state correctional
institution, which was the same placement as his sentence for the
strangulation offense.
Trial Court Opinion, 5/17/21, at 1-3 (party designation altered; duplicate
numbers and some footnotes omitted). On April 5, 2021, the trial court denied
Appellant’s post-sentence motions.3 This timely filed appeal followed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.4
In this Court, counsel filed an Anders brief and application to withdraw
as counsel in this appeal. In his Anders brief, counsel identifies the following
issues:
A. Whether the lower court abused its sentencing discretion when,
after the defendant admitted to violating his parole sentence
through the commission of a new offense, and the court
sentenced him to a term of imprisonment in a state correctional
institution for each case and ran them consecutive to the new
sentence?
3 An identical motion was filed at each docket.
4 At Docket 1902-2019, a concise statement of errors or statement in lieu of
a concise statement indicating counsel intended to file an Anders brief does
not appear in the certified record transmitted to this Court. See Pa.R.A.P.
1925(b), (c)(4). However, the trial court opinion, which addressed both
appeals, indicated that Appellant had timely filed a concise statement and
raised the same issue on appeal in both cases. See Trial Court Opinion,
5/17/21, at 3.
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B. May appointed counsel be permitted to withdraw after a
conscientious review of the issues and the facts pursuant to the
Ander’s [sic] case?
Anders Brief at 4 (suggested answers omitted).
Before this Court can consider the merits of these appeals, we must first
determine whether appellate counsel has satisfied all of the requirements that
court-appointed counsel must meet before leave to withdraw may be granted.
Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en
banc); Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)
(en banc).
To withdraw from representing a convicted defendant on direct appeal
on the basis that the appeal is frivolous, counsel must (1) petition the court
for leave to withdraw stating that he has made a conscientious examination
of the record and has determined that the appeal would be frivolous; (2) file
a sufficient Anders brief; and (3) provide a copy of the Anders brief to the
defendant and advise the defendant of his right to retain new counsel or
proceed pro se and to raise any additional points that he deems worthy of the
court’s attention. Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183
(Pa. Super. 2016); Goodwin, 928 A.2d at 290. An Anders brief must comply
with all of the following requirements:
[T]he 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
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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); see also
Dempster, 187 A.3d at 270; Commonwealth v. Zeigler, 112 A.3d 656, 660
(Pa. Super. 2015). If counsel has satisfied the above requirements, it is then
this Court’s duty to conduct its own review of the record and render an
independent judgment as to whether the appeal is wholly frivolous.
Dempster, 187 A.3d at 271; Zeigler, 112 A.3d at 660.
In his application to withdraw, counsel states that he has made a
conscientious examination of the record and determined that there are no
non-frivolous grounds for the appeal. Counsel provided copies of the Anders
brief and application to withdraw to Appellant and sent a letter to Appellant
advising him of his right to retain new counsel or proceed pro se on appeal to
raise any points he deemed worthy of the court’s attention. Counsel’s Anders
brief provides a procedural and factual summary of the case and cites and
discusses the applicable law on which counsel bases his conclusion that there
are no non-frivolous issues that he can raise on Appellant’s behalf. Thus, we
conclude counsel has filed a sufficient Anders brief and adequately complied
with the procedural requirements for withdrawal as counsel in this appeal.
We therefore proceed to conduct an independent review to ascertain
whether the appeal is indeed wholly frivolous. This Court first considers the
issues raised by counsel in the Anders brief and determines whether they are
in fact frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.
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Super. 2018) (en banc); Dempster, 187 A.3d at 272. In addition, if the Court
finds all of those issues frivolous, this Court conducts an examination of the
record to discern if there are any other issues of arguable merit overlooked by
counsel. Yorgey, 188 A.3d at 1197; Dempster, 187 A.3d at 271-72.
The issue identified in the Anders brief challenges the trial court’s
sentence as an abuse of discretion when it ordered Appellant to serve his
original sentences in a state correctional facility consecutive to his newly
imposed sentence. Anders Brief at 4, 7, 12, 14-15. Specifically, Appellant
contends that “his need for rehabilitation and treatment would be better
served by permitting him to finish any term of incarceration in a county facility
which would allow for treatment and, possibly, work release.” Id. at 7.
We agree with counsel that this issue is frivolous. Where parole is
revoked, the court is limited to recommitting the defendant to serve his
existing sentence and does not have the authority to impose a new
penalty. Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super.
2008); Commonwealth v. Galletta, 864 A.2d 532, 538 (Pa. Super. 2004).
The only question in such a case is whether the court erred in revoking parole
and recommitting the defendant to confinement. Kalichak, 943 A.2d at
291; Galletta, 864 A.2d at 539. Thus, “an appeal of a parole revocation is not
an appeal of the discretionary aspects of sentence.” Kalichak, 943 A.2d at
291. Conviction of another crime committed while on parole is a sufficient
basis for revoking parole and recommitting the defendant to serve the
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remainder of his term of imprisonment. Id. Further, a parole violation
sentence must be served consecutively to the recommitment of the defendant.
61 Pa.C.S. § 6138(a)(5).5 Accord Commonwealth v. Ward, 489 A.2d 809,
811 (Pa. Super. 1985) (“A parole violator convicted and sentenced to prison
for another offense must serve his or her ‘back time’ and the new sentence is
to run consecutive (and not concurrent) to the time remaining on the original
sentence.”).
No error in revoking parole and recommitting Appellant to confinement
can be shown here. The record at the hearing established that Appellant
conceded to violating several conditions of his parole and was convicted of
new offenses at docket 3319-2020, which he committed while on parole in the
two instant cases. N.T, 3/8/21 at 4-7. The court merely recommitted
5
If a new sentence is imposed on the parolee, the service of the
balance of the term originally imposed by a Pennsylvania court
shall precede the commencement of the new term imposed in the
following cases:
(i) If a person is paroled from a State correctional institution
and the new sentence imposed on the person is to be served
in the State correctional institution.
(ii) If a person is paroled from a county prison and the new
sentence imposed upon him is to be served in the same
county prison.
(iii) In all other cases, the service of the new term for the
latter crime shall precede commencement of the balance of
the term originally imposed.
61 Pa.C.S. § 6138(a)(5)(i)-(iii).
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Appellant to serve the balance of his existing sentences. Id. at 9; Amended
Order, 3/9/21.
While appeal of a parole revocation is not an appeal of the discretionary
aspects of sentence, even if Appellant could assert such a challenge, it would
be frivolous. A challenge to the discretionary aspects of a sentence is not
appealable as of right. Dempster, 187 A.3d at 272; Commonwealth v.
Radecki, 180 A.3d 441, 467 (Pa. Super. 2018). Rather, an appeal from the
discretionary aspects of a sentence is permitted only if this Court determines
that there is a substantial question that the sentence was not appropriate
under the Sentencing Code. Radecki, 180 A.3d at 467-48; Zeigler, 112 A.3d
at 661.
The fact that the court ordered Appellant’s recommitment be served in
a state correctional facility consecutive to his new sentence at docket 3319-
2020 does not raise a substantial question as to the appropriateness of the
sentence and thus would not be reviewable by this Court. See Radecki, 180
A.3d at 468-70; see Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa.
Super. 2015) (en banc) (“A court’s exercise of discretion in imposing a
sentence concurrently or consecutively does not ordinarily raise a substantial
question.”); Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013)
(stating that a claim that the sentencing court failed to consider appropriately
the defendant’s rehabilitative needs does not raise a substantial question);
Commonwealth v. Brown, 982 A.2d 1017, 1020 (Pa. Super. 2009) (holding
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that a claim that state incarceration was unreasonable because Brown
committed a non-violent offense and was not confrontational during court
proceedings did not present a substantial question).
Based on the foregoing, we agree with counsel that the issue raised by
Appellant is wholly frivolous. In addition, we have reviewed the certified
record and have discovered no additional non-frivolous issues. Therefore, we
grant counsel’s application to withdraw and affirm the judgments of sentence.
Judgments of sentence affirmed. Application to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2022
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