Com. v. Lewis, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JODI LOUISE LEWIS,
Appellant No. 581 WDA 2015
Appeal from the Judgment of Sentence March 4, 2015
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000077-2009, CP-33-CR-0000116-
2009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 30, 2015
Appellant, Jodi Louise Lewis, appeals from the judgment of sentence
entered on March 4, 2015, following the revocation of her probation.
Appellate counsel has filed a petition to withdraw his representation and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a
petition to withdraw from representation on direct appeal. After review, we
grant counsel’s petition to withdraw, and we affirm the judgment of
sentence.
The record reflects that on May 20, 2009, at Docket Number CP-33-
CR-77-2009, Appellant pled guilty to one count of theft by unlawful taking,
and at Docket Number CP-33-CR-116-2009, Appellant pled guilty to one
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count of escape. The trial court sentenced Appellant to a minimum term of
four months and fifteen days to a maximum term of two years less one day
in the Jefferson County Jail, followed by one day of probation on the escape
conviction. The Court also sentenced Appellant to a term of two years of
probation for the theft conviction, and this sentence of probation was
ordered to be served consecutively to the sentence imposed for escape.
On September 30, 2009, a bench warrant was issued after the
Jefferson County Adult Probation Department received information that
Appellant was in technical violation of her probation concerning her
residence and because new criminal charges were filed against her in South
Carolina. On December 16, 2009, the trial court revoked Appellant’s
probation at Docket Number CP-33-CR-116-2009 and resentenced her to a
term of sixteen months to sixty months in a state correctional institution
followed by two years of probation. The trial court also revoked Appellant’s
probation at Docket Number CP-33-CR-77-2009 and resentenced Appellant
to a term of two years of probation, which was ordered to be served
concurrent to the probation portion of her sentence at Docket Number CP-
33-CR-116-2009.
On August 7, 2014, a bench warrant was issued after the Jefferson
County Adult Probation Department received information that Appellant was
again in violation of her probation due to her use of controlled substances,
threatening to kill a man in Union County, North Carolina, failing to complete
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a treatment program, and failing to pay outstanding fees resulting from her
previous extradition. On August 12, 2014, Appellant waived her Gagnon I
hearing1 admitting to the violations, and she proceeded to a Gagnon II
hearing. Gagnon Order, 8/12/14. On August 27, 2014, the trial court
directed Appellant to submit a residence plan to the Jefferson County Adult
Probation Department, but inexplicably, no further court action was taken.
On October 7, 2014, the Jefferson County Court issued a detainer as a
result of new criminal charges filed against Appellant in Clearfield County. 2
On February 10, 2015, Appellant pled guilty and was sentenced to time
served of fifty-three days to one year for possession of a controlled
substance in Clearfield County. On March 4, 2015, the Jefferson County
Court of Common Pleas revoked Appellant’s probation at both Jefferson
County docket numbers and resentenced Appellant.3 At Jefferson County
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1
Due process requires a probationer be given a preliminary (Gagnon I)
and a final (Gagnon II) hearing prior to revoking probation.
Commonwealth v. Knoble, 42 A.3d 976, 978 n.1 (Pa. 2012) (citing
Gagnon v. Scarpelli, 411 U.S. 778 (1973)). The Gagnon decision has
become the common moniker for both parole and probation revocation
proceedings. Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa.
Super. 2011).
2
The trial court has the authority to detain a state parolee.
Commonwealth v. Kelly, 931 A.2d 694, 697 (Pa. Super. 2007).
3
The trial court had the authority to revoke Appellant’s probation even
though Appellant had not yet begun to serve the probationary portion of her
split sentence and despite the fact that the offense upon which revocation of
probation was based occurred during the parole period and not the
(Footnote Continued Next Page)
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Docket Number CP-33-CR-116-2009, the trial court resentenced Appellant to
a term of three to seven years of incarceration with credit for time served,4
and at Docket Number CP-33-CR-77-2009, the trial court imposed a
sentence of two and one-half to five years with credit for time served.5 The
sentences were ordered to be served concurrently.
Appellant filed a timely post-sentence motion that was denied on
March 13, 2015. This timely appeal followed. However, before we may
address the question raised on appeal, we first must resolve appellate
counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d
1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal.
The procedural mandates are that 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.
_______________________
(Footnote Continued)
probationary period. Commonwealth v. Ware, 737 A.2d 251, 253 (Pa.
Super. 1999).
4
At Docket Number CP-33-CR-116-2009, the trial court made Appellant
eligible for release pursuant to the Recidivism Risk Reduction Incentive
(“RRRI”) Act, 61 Pa.C.S. §§ 4501-4512, at twenty-seven months.
5
At Docket Number CP-33-CR-77-2009, the trial court made Appellant RRRI
eligible at twenty two-months.
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Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within the petition
to withdraw, counsel averred that he conducted a conscientious examination
of the record, including Appellant’s prior sentence orders, plea colloquy,
post-sentence motions, and all other documents of record. Following that
review, counsel concluded that the present appeal is wholly frivolous.
Counsel sent to Appellant a copy of the Anders brief and petition to
withdraw, as well as a letter, a copy of which is attached to the motion. In
the letter, counsel advised Appellant that she could represent herself or that
she could retain private counsel to represent her.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in 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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. It sets forth the factual
and procedural history of this case and outlines pertinent case authority.
Counsel also raises one potential issue:
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(1) Whether the trial court abused its discretion when it
revoked Appellant’s probation/parole and re-sentenced her
to serve a sentence of incarceration in the State
Correctional Institution aggregating to a minimum of three
(3) years to a maximum of seven (7) years with credit for
time served for appellant’s violations of probation /parole.
Anders Brief at 4.6
Appellant asserts that the sentence imposed after the revocation of
her probation was unreasonably excessive. Anders Brief at 9. Appellant
maintains that her sentence is too severe because her violations were drug
related misdemeanors, and the trial court’s authority could be vindicated
with a lesser sentence. Id. at 7-9. Furthermore, Appellant contends the
court’s reasoning does not “adequately show how the sentence is necessary
to vindicate the [c]ourt’s authority, or how the violations show [s]he is likely
to commit a new offense.” Id. at 10.
Appellant’s claim challenges the discretionary aspects of her sentence.
An appellant wishing to appeal the discretionary aspects of a probation-
revocation sentence has no absolute right to do so but, rather, must petition
this Court for permission to do so. Commonwealth v. Kalichak, 943 A.2d
285, 289 (Pa. Super. 2008); 42 Pa.C.S. § 9781(b). Before this Court may
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6
Appellant appealed the three-to-seven-year sentence at Docket Number
CP-33-CR-116-2009 and the two-and-one-half-to-five-year sentence at
Docket Number CP-33-CR-77-2009. However, in the Anders Brief,
Appellant challenges only the three-to-seven-year sentence at Docket
Number CP-33-CR-116-2009. The ramifications of the decision to forego
challenging the two-and-one-half-to-five-year sentence at Docket Number
CP-33-CR-77-2009 will be addressed below.
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review the merits of a challenge to the discretionary aspects of a sentence,
we must engage in a four-pronged analysis:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [708]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)). See
also Pa.R.Crim.P. 708, Comment (discussing proper preservation of issues
challenging the discretionary aspect of a sentence imposed following a
revocation hearing).
A determination as to whether a “substantial question” exists is made
on a case-by-case basis, and this Court will grant the appeal “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, 912-913
(Pa. Super. 2000). A claim that the sentence is manifestly excessive,
inflicting too severe a punishment, does present a substantial question.
Cartrette, 83 A.3d at 1038.
Appellant has met the four-prong test required prior to our review of
the merits of a discretionary challenge to a sentence: Appellant’s appeal
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was timely filed, Appellant preserved the issue in her post-sentence motion,
Appellant included a statement pursuant to Pa.R.A.P. 2119(f) in her brief,
and Appellant has raised a substantial question. Evans, 901 A.2d at 533;
Cartrette, 83 A.3d at 1038. Thus, we shall address the merits of
Appellant’s claim.
When we consider an appeal from a sentence imposed following the
revocation of probation, our standard of review is well settled:
Our review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the
time of the initial sentencing. 42 Pa.C.S. § 9771(b). See also
Commonwealth v. Gheen, 455 Pa. Super. 299, 688 A.2d
1206, 1207 (1997) (the scope of review in an appeal following a
sentence imposed after probation revocation is limited to the
validity of the revocation proceedings and the legality of the
judgment of sentence). Also, upon sentencing following a
revocation of probation, the trial court is limited only by the
maximum sentence that it could have imposed originally at the
time of the probationary sentence. Id., 688 A.2d at 1207-1208.
Accord Commonwealth v. Ware, 737 A.2d 251, 254 (Pa.
Super. 1999).
Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)
(citing Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000)). It
is also well settled that the revocation of a probationary 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. MacGregor, 912 A.2d at 317. “[A]n abuse of discretion is
more than a mere error of judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that the judgment exercised
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was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-
will.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (internal
quotation marks omitted).
Upon the revocation of probation, the sentencing court has all of the
alternatives available at the time of the initial sentencing. See 42 Pa.C.S. §
9771(b); Commonwealth v. Mazzetti, 44 A.3d 58, 61 (Pa. 2012). Here,
Appellant was resentenced to total confinement. Sentences of total
confinement following the revocation of probation are governed by
42 Pa.C.S. § 9771.
(c) Limitation on sentence of total confinement.--The court
shall not impose a sentence of total confinement upon revocation
[of probation] unless it finds that:
(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. § 9771(c).
It was uncontroverted that Appellant violated the conditions of her
probation by committing and being convicted of new crimes in Clearfield
County. N.T., 3/4/15, at 3. As noted above, following the trial court’s
finding that Appellant violated probation, Appellant was sentenced to a term
of three to seven years of imprisonment on the original conviction, with
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credit for time served. Id. at 8. This sentence was within the range of
potential sentencing alternatives available to the court upon Appellant’s
original conviction. 18 Pa.C.S. § 1103(3) (providing that a person may be
sentenced to imprisonment for a term which shall not exceed seven years in
the case of a felony of the third degree). Thus, the sentencing court did not
impose an illegal sentence following the probation revocation.
Furthermore, we cannot agree with Appellant’s claim that the sentence
was manifestly excessive or unreasonable. At the time of sentencing, the
trial court explained the reasons for the sentence it imposed. The trial court
stated that it had repeatedly shown Appellant leniency and provided her with
opportunities to turn her life around, but instead of availing herself of those
opportunities, she failed to abide by the conditions of her probation and
opted to commit additional crimes. N.T., 3/4/15, at 8-10. The trial court
further explained its rationale in its Pa.R.A.P. 1925(a) opinion as follows:
Pursuant to 42 Pa.C.S.A. § 9771(c), a sentence of total
incarceration is warranted if a defendant has been convicted of
new charges while on probation or if it is deemed to be
necessary to vindicate the authority of the court. Both
considerations contributed to the sentence in this case. More
specifically, [Appellant] was convicted in Clearfield County on a
drug violation while on probation, (Gagnon Transcript,
03/04/2015, p. 3), and despite its earlier leniency, [Appellant]
persisted in flouting the Court’s authority by continuing to violate
the terms and conditions of her probation. (See id. at 7-8, 10).
Under the circumstances, a sentence of 3-7 years is
certainly not unreasonable, either. As the Court noted,
[Appellant] would be RRRI eligible at 27 months and was entitled
to nearly 2 years’ credit [for time served], (id. at 10), which
meant she would be eligible for parole within just a few months
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of the date the Court sentenced her. Anything less would have
effectively resulted in a time served sentence, which would not
have been appropriate. [Appellant’s] conduct was a clear
violation of her probation, and the Court had already shown
mercy to no effect. What [Appellant] needed, therefore, was a
sentence that entailed some period of incarceration - one that
would convey to her that the Court would not continue to look
the other way while she ignored her legal obligations. Her overall
sentence of 3-7 years was designed to do precisely that and, as
such, was not an abuse of discretion.
Trial Court Opinion, 5/20/15, at unnumbered 1-2.
We conclude that the trial court provided a thorough and thoughtful
recitation of its reasons for the imposition of a sentence of incarceration.
Based on that rationale, the sentence of total confinement was appropriately
imposed. Appellant’s previous conduct indicates that it is likely she will
commit another crime if she is not imprisoned, and such a sentence is
essential to vindicate the authority of the court. 42 Pa.C.S. § 9771(c)(1-3);
Fish, 752 A.2d at 923; N.T., 3/4/15, at 8-10. Moreover, Appellant has
failed to establish that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision. Commonwealth v. Mann,
957 A.2d 746, 749 (Pa. Super. 2008). Accordingly, we conclude that the
sentence imposed by the trial court was not manifestly excessive or
unreasonable. As a result, Appellant’s claim lacks merit.
We also have independently reviewed the record in order to determine
if counsel’s assessment about the frivolity of the present appeal is correct.
See Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
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(after determining that counsel has satisfied the technical requirements of
Anders and Santiago, this Court must conduct an independent review of
the record to determine if there are additional, non-frivolous issues
overlooked by counsel). As noted above, while Appellant appealed from the
judgments of sentence imposed at Docket Number CP-33-CR-77-2009 and
Docket Number CP-33-CR-116-2009, in the Anders Brief, she challenged
only the sentence imposed at Docket Number CP-33-CR-116-2009. Anders
Brief at 4. However, for the reasons set forth in our discussion of the
sentence imposed at Docket Number CP-33-CR-116-2009, if Appellant had
pursued a challenge to the judgment of sentence entered at Docket Number
CP-33-CR-77-2009, we would conclude that the appeal was frivolous. The
sentence at Docket Number CP-33-CR-77-2009 was legal, it was not
excessive, and the trial court aptly explained its reasons for the sentence
imposed.
Thus, after review of the issue raised by counsel and our independent
review of the record, we conclude that an appeal in this matter is frivolous.
Accordingly, we grant counsel’s petition to withdraw and affirm the judgment
of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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