Com. v. Gillmen, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHANE MICHAEL GILLMEN,
Appellant No. 1253 WDA 2015
Appeal from the Judgment of Sentence July 1, 2015
in the Court of Common Pleas of Jefferson County
Criminal Division at Nos.: CP-33-CR-0000008-2015
CP-33-CR-0000118-2015
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 10, 2016
Appellant, Shane Michael Gillmen, appeals from the judgment of
sentence imposed July 1, 2015, following revocation of his probation.
Appellant’s counsel seeks to withdraw from representation pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), alleging that the appeal is wholly
frivolous. We affirm the judgment of sentence and grant counsel’s request
to withdraw.
We take the following facts from the trial court’s opinion and our
independent review of the certified record. On May 6, 2015, Appellant
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*
Retired Senior Judge assigned to the Superior Court.
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pleaded guilty to one count of corruption of minors,1 a misdemeanor of the
first degree, and was sentenced to two years of probation.
On May 20, 2015, after a Gagnon II2 hearing, during which Appellant
admitted to violating the conditions of his probation by having contact with
his victim, the trial court ordered that Appellant’s probation remain intact.
(See Order, 5/22/15). On June 3, 2015, at a second Gagnon II hearing,
Appellant again admitted to violating his probation. The trial court ordered
that he remain in Jefferson County Jail pending completion of a Pre-
Sentence Investigation Report (PSI). On June 17, 2015, with the benefit of
the PSI, the trial court revoked Appellant’s probation and sentenced him to
not less than eleven and one-half months’ nor more than twenty-three
months’ incarceration in Jefferson County Jail, followed by three years of
probation, a split sentence.
On July 1, 2015, after a third Gagnon II hearing, during which
Appellant again admitted to having contact with his victim’s family, the trial
court revoked his split-sentence and sentenced him to serve a term of
imprisonment of not less than two and one-half nor more than five years in
a state correctional facility. On July 30, 2015, counsel filed a motion seeking
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1
18 Pa.C.S.A. § 6301(a)(1)(i).
2
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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permission to file a request for reconsideration of sentence nunc pro tunc,
which the court denied that same day.
Appellant also filed a timely notice of appeal on July 30, 2015. He filed
his statement of errors complained of on appeal on August 11, 2015,
pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). The trial court
entered its opinion on September 25, 2015. See Pa.R.A.P. 1925(a).
On March 3, 2016, we entered a memorandum remanding this case
back to the trial court for Appellant’s counsel to file either a properly
developed merits brief or a petition to withdraw in compliance with Anders
and Santiago. On April 28, 2016, Appellant’s counsel filed a motion to
withdraw from representation, explaining that after reviewing the record in
this case, and considering Appellant’s allegations, there “is no merit
whatsoever to any of the issues raised or which could be raised by
[A]ppellant, and that continued prosecution of the instant appeal is wholly
frivolous.” (Motion to Withdraw, 4/28/16, at unnumbered pages 1-2).
Counsel’s motion further avers that he filed an Anders brief and
served a “complete copy of that brief and the present motion to withdraw . .
. on [A]ppellant on December 23, 2015, along with a letter advising him of
his right to retain new counsel or raise with this Honorable Court any points
which he deems worthy of consideration.” (Id. at unnumbered page 2; see
letter to Appellant, 12/23/15).
Before reaching the merits of the issue raised in the Anders brief, we
address counsel’s motion to withdraw. See Commonwealth v. Garang, 9
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A.3d 237, 240 (Pa. Super. 2010) (“When presented with an Anders brief,
this Court may not review the merits of the underlying issues without first
passing on the request to withdraw.”) (citations omitted).
To withdraw pursuant to Anders, counsel must: 1) petition the court
for leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; 2) file a
brief referring to anything in the record that might arguably support the
appeal; and 3) furnish a copy of the brief to the appellant and advise him of
the right to obtain new counsel or file a pro se brief to raise any additional
points that the appellant deems worthy of review. See id. Thereafter, this
Court independently reviews the record and issues. See id.Here, on review, we conclude that counsel has substantially complied
with Anders, supra, and Santiago, supra (holding counsel must state
reasons for concluding that appeal is frivolous). Counsel has also
substantially complied with Commonwealth v. Millisock, 873 A.2d 748,
752 (Pa. Super. 2005), by providing a copy of the notice letter advising
Appellant of his rights. Therefore, we will undertake our own independent
review of the appeal to determine if it is wholly frivolous.
In the Anders brief, Appellant’s counsel presents one issue that might
arguably support an appeal:
(1) Whether the trial court abused its discretion when it revoked
Appellant’s split-sentence and re-sentenced him to serve a
sentence of incarceration in a State Correctional Institution for a
minimum of two and one-half (2 ½) years to a maximum of five
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(5) years with credit for time served for [A]ppellant’s violation of
probation/parole/supervision[?]
(Anders Brief, at 4).
Appellant’s issue challenges the discretionary aspects of his sentence
imposed following the revocation of his probation. This Court has recognized
that its scope of review includes the discretionary aspects of a sentence
following revocation of probation, yet there is no automatic right to appeal
such sentence. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa. Super. 2013) (en banc); Commonwealth v. Pass, 914 A.2d 442, 445-
46 (Pa. Super. 2006). However, an appeal is more appropriately considered
a petition for allowance of appeal, which may be considered on its merits if
an appellant preserves his issue by raising it during the sentencing hearing
or in a post-sentence motion, and complies with the requirements of
Pa.R.A.P. 2119(f), by setting forth “a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of his
sentence . . . [and] show[ing] that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.” Pass,
supra at 446 (citation omitted); see id. at 446 n.8.
Notably, “[t]o preserve an attack on the discretionary aspects of
sentence, an appellant must raise his issues at sentencing or in a post-
sentence motion. Issues not presented to the sentencing court are waived
and cannot be raised for the first time on appeal.” Commonwealth v.
Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citations omitted)
(finding challenge to discretionary aspect of sentence following revocation of
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probation waived where appellant did not file post-sentence motion or raise
issue before court at sentencing hearing); see also Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”).
Here the trial court imposed Appellant’s sentence on July 1, 2015,
hence the deadline for filing a timely post-sentence motion was July 11,
2015. See Pa.R.Crim.P. 720(A)(1) (“[A] written post-sentence motion shall
be filed no later than [ten] days after imposition of sentence.”). On July 30,
2015, Appellant filed a request for permission to file his motion to reconsider
sentence nunc pro tunc, which the trial court denied. Accordingly, he did not
file a timely post-sentence motion challenging the discretionary aspects of
his sentence, and thus has waived his claim. See Malovich, supra at
1251; Pa.R.A.P. 302(a). “Nonetheless, Anders requires that we examine
the issues to determine their merit. Therefore, in order to rule upon
counsel’s request to withdraw, we must examine the merits of the issue
Appellant seeks to raise.” Commonwealth v. Hernandez, 783 A.2d 784,
787 (Pa. Super. 2001); see Commonwealth v. Lilley, 978 A.2d 995, 998
(Pa. Super. 2009) (“Nevertheless, in light of [c]ounsel’s petition to withdraw,
we address [a]ppellant’s contention.”) (citation omitted).
Our standard of review of an appeal from a sentence imposed
following the revocation of probation is well-settled: “Revocation of a
probation 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
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of an error of law or an abuse of discretion.” Commonwealth v. Colon,
102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa.
2015) (citation omitted). Additionally, “upon 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.”
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal
quotation marks and citations omitted).
Here, the record reveals that during his Gagnon II hearing on July 1,
2015, Appellant admitted that he violated his probation several times by
contacting his victim and her family. (See N.T. Hearing, 7/01/15, at 3).
The trial court then re-sentenced Appellant to a term of not less than two
and one-half nor more than five years of incarceration. (See id. at 5). In
its opinion, the trial court explained that it considered that this was the third
time Appellant had violated his probation by having contact with his victim,
and that he had been warned by the court and probation officer about his
contact. (See Trial Ct. Op., at 1-2). The court also noted that “[i]n addition
to considering the circumstances and continuing nature of [Appellant’s]
violations, [it] was also in possession of the [PSI] it had ordered on June 3,
2015[,] and was thus fully cognizant of all relevant sentencing
considerations, including [Appellant’s] personal history.” (Id. at 2).
Furthermore, we note that the sentence imposed was below the maximum
sentence that the court could have imposed at Appellant’s initial sentencing.
See Infante, supra at 365.
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Therefore, upon review, we discern no error of law or abuse of
discretion. See Colon, supra at 1041; Infante, supra at 365.
Accordingly, Appellant’s issue does not merit relief. Furthermore, after our
independent review of the record as required by Anders and Santiago, we
conclude that no non-frivolous issues exist.
Motion to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2016
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