Com. v. Hall, R. ( 2015 )


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  • J-S64021-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    RICHARD JOSEPH HALL
    Appellant                  No. 43 MDA 2015
    Appeal from the Judgment of Sentence of November 24, 2014
    In the Court of Common Pleas of Luzerne County
    Criminal Division at No.: CP-40-CR-0002627-2009
    BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*
    MEMORANDUM BY WECHT, J.:                          FILED DECEMBER 14, 2015
    Richard Joseph Hall appeals his November 24, 2014 judgment of
    sentence, which was imposed after Hall’s probation was revoked.          Hall’s
    counsel has filed with this Court a petition to withdraw as counsel, together
    with an Anders brief.1           We find that Hall’s counsel has satisfied the
    Anders/Santiago requirements and that Hall has no non-frivolous issues to
    pursue on appeal. Consequently, we grant counsel’s petition to withdraw as
    counsel, and we affirm Hall’s judgment of sentence.
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    1
    See Anders v. California, 
    386 U.S. 738
     (1967); Commonwealth v.
    McClendon, 
    434 A.2d 1185
     (Pa. 1981), abrogated in part by
    Commonwealth v. Santiago, 
    978 A.2d 349
     (Pa. 2009).
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    Initially, Hall pleaded guilty to burglary.2 On May 24, 2010, the trial
    court    sentenced      Hall   to    twelve    months   to   twenty-four   months’
    imprisonment, plus three consecutive years of probation.           Once Hall was
    credited for time served, his calculated minimum release date was December
    10, 2010. His maximum release date was December 10, 2011. As part of
    his sentence, Hall also was to complete a drug and alcohol treatment
    program, and follow all rules and regulations.
    Hall subsequently was paroled on May 5, 2011.           On December 20,
    2011, Hall reached his maximum date with state parole and began serving
    his three-year special probation sentence.          Among the conditions of his
    special probation was that he was to live at a specified and approved
    residence and that he must avoid drugs and alcohol.
    On December 16, 2013, Hall failed a breathalyzer test administered by
    his probation officer. Again on January 9, 2014, Hall failed a breathalyzer
    test and , this time, admitted to consuming alcohol. He was arrested and
    taken to Luzerne County Prison.            Hall waived his Gagnon I preliminary
    revocation hearing.3      At his Gagnon II revocation hearing, the trial court
    revoked Hall’s special probation and resentenced Hall to county probation for
    ____________________________________________
    2
    18 Pa.C.S. § 3502(a). The Commonwealth withdrew Hall’s lesser
    charges of theft by unlawful taking, 18 Pa.C.S. § 3921, and criminal
    mischief, 18 Pa.C.S. § 3304, pursuant to a plea agreement.
    3
    See Gagnon v. Scarpelli, 
    411 U.S. 778
     (1973).
    -2-
    J-S64021-15
    the remainder of his supervision term. He was ordered to report for a drug
    and      alcohol   evaluation,   complete    the   treatment,   and   follow   all
    recommendations for aftercare. In addition, Hall was to report for a Secure
    Continuous Remote Alcohol Monitor [“SCRAM”] bracelet to be worn at all
    times.
    On March 10, 2014, a bench warrant was issued for Hall for his failure
    to appear at a scheduled hearing. On June 12, 2014, Hall was in custody
    and present for his hearing.      The trial court ordered Hall to be released,
    pending the verification of his new address. He was ordered to continue to
    comply with his alcohol and drug treatment. Because he had not yet done
    so, he also was ordered to report to the probation office immediately upon
    release to be fitted for his SCRAM bracelet.
    On July 23, 2014, another arrest warrant was issued for Hall because
    he failed to appear for a revocation hearing after Hall’s probation officer
    reported him for two technical violations.         Hall apparently violated the
    condition that he reside at an approved residence and failed to get his
    SCRAM bracelet.
    On October 30, 2014, at a probation revocation hearing, Hall admitted
    that he was not living at his approved residence.           Notes of Testimony
    (“N.T.”), 10/30/2014, at 5.       The court found that he had violated that
    condition of his probation. The court reserved ruling on the second violation
    of his failure to appear for his SCRAM bracelet, pursuant to Hall’s allegations
    that he had paperwork indicating that he could not be fitted for the bracelet
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    until he paid $300. Id. at 6-7. A hearing was scheduled for November 24,
    2014 to determine whether Hall violated the condition of the SCRAM
    bracelet.    The   trial    court   also   requested   an   updated   pre-sentence
    investigation (“PSI”) report at this time. Id. at 8.
    On November 24, 2014, after hearing testimony regarding the SCRAM
    bracelet, the trial court found that Hall had violated that condition of his
    probation as well.         The court then resentenced Hall on his burglary
    conviction. The judge stated that the standard sentencing guideline range
    for Hall’s charge, with a prior record score of five and an offense gravity
    score of six, was twenty-one to twenty-seven months. N.T., 11/24/2014, at
    7.   The court observed that Hall initially was sentenced to a term in the
    mitigated range. Id. at 7. The trial court noted that a state facility would
    be the best place for Hall to receive the rehabilitation that he needed. Id. at
    9.   The trial court then sentenced Hall to twelve to thirty-six months in a
    state correctional institution. Hall was given credit for his time served and
    was ordered to submit to a drug and alcohol assessment. Id. at 10.
    On December 19, 2014, Hall filed a notice of appeal. The trial court
    ordered Hall to file a concise statement of errors complained of on appeal
    pursuant to Pa.R.A.P. 1925(b). On January 15, 2015, counsel for Hall timely
    complied. In his 1925(b) statement, counsel for Hall indicated that he had
    reviewed the record, concluded that there were no non-frivolous issues to
    pursue on appeal, and gave notice of his intent to file an Anders brief. On
    January 20, 2015, the court filed a Pa.R.A.P. 1925(a) statement.
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    As noted, Hall’s counsel has filed an Anders brief and a motion to
    withdraw as counsel. Counsel for Hall has identified one issue that arguably
    supports Hall’s appeal, but he ultimately concludes that the issue has no
    discernible merit.     Counsel sets forth that issue as follows: “Whether the
    sentence imposed by the Trial Court [is] harsh and excessive?”        Anders
    Brief for Hall at 1.
    Because counsel for Hall proceeds pursuant to Anders and Santiago,
    this Court first must pass upon counsel’s petition to withdraw before
    reviewing the merits of the issue presented by Hall.       Commonwealth v.
    Goodwin, 
    928 A.2d 287
    , 290 (Pa. Super. 2007) (en banc).               Prior to
    withdrawing as counsel pursuant to Anders, counsel must file a brief that
    meets the requirements established by our Supreme Court in Santiago.
    The brief must provide the following information:
    (1) a summary of the procedural history and facts, with
    citations to the record;
    (2) reference to anything in the record that counsel believes
    arguably supports the appeal;
    (3)    counsel’s conclusion that the appeal is frivolous; and
    (4) 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.
    Santiago, 978 A.2d at 361.
    Counsel also must provide a copy of the Anders brief to his client.
    Attending the brief must be a letter that advises the client of his rights to
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    “(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;
    or (3) raise any points that the appellant deems worthy of the court’s
    attention in addition to the points raised by counsel in the Anders brief.”
    Commonwealth v. Nischan, 
    928 A.2d 349
    , 353 (Pa. Super. 2007); see
    also Commonwealth v. Daniels, 
    999 A.2d 590
    , 594 (Pa. Super. 2010).
    Finally, to facilitate our review of counsel’s satisfaction of his obligations,
    counsel must attach to his petition to withdraw the letter that he transmitted
    to his client.   See Commonwealth v. Millisock, 
    873 A.2d 748
    , 752 (Pa.
    Super. 2005).
    Our review of counsel’s petition to withdraw and the accompanying
    brief demonstrates that counsel has satisfied the Anders requirements.
    Counsel has provided procedural and factual histories of this case, detailing
    the facts and events relevant to this appeal with appropriate citations to the
    record.     Anders Brief for Hall at 2-4.    Counsel also has articulated Hall’s
    position and has analyzed the issue in light of the record with appropriate
    citations to the record and case law.       Id. at 5-7.   Ultimately, counsel has
    concluded that Hall has no non-frivolous bases for challenging his sentence.
    Id. at 7.
    Counsel also sent Hall a letter informing him that he has identified no
    non-frivolous issues to pursue on appeal, that he has filed an application to
    withdraw from Hall’s representation, and that Hall may find new counsel or
    proceed pro se. Counsel has attached the letter to his petition to withdraw,
    as required by Millisock. See Petition to Withdraw as Counsel, 8/6/2015.
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    Accordingly, counsel has complied substantially with Santiago’s technical
    requirements.     See Millisock, 
    873 A.2d at 751
    .        Hall has not filed a
    response with this Court to counsel’s Anders Brief, the letter that counsel
    sent to him, or the motion to withdraw as counsel.
    We now must conduct an independent review of the record to
    determine whether this appeal is, as counsel claims, wholly frivolous, or if
    any non-frivolous issues may remain. Santiago, 978 A.2d at 354 (“[T]he
    court—not counsel—then proceeds, after a full examination of all the
    proceedings, to decide whether the case is wholly frivolous. If it so finds it
    may grant counsel’s request to withdraw[.]”) (quoting Anders, 
    386 U.S. at 744
    ).
    We begin with the issue identified by counsel, whether the trial court
    abused its discretion by imposing a sentence within the guidelines when
    resentencing Hall.    A sentence will not be disturbed on appeal absent a
    manifest abuse of discretion. Commonwealth v. Hoch, 
    936 A.2d 515
    , 517
    (Pa. Super. 2007).       An abuse of discretion is not merely an error of
    judgment. Rather, the appellant must 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.” 
    Id. at 518
    .
    Additionally, the right to challenge the discretionary aspects of
    sentencing is not absolute. Commonwealth v. Moury, 
    992 A.2d 162
    , 169
    (Pa. Super. 2010).
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    An appellant challenging the discretionary aspects of his
    sentence must invoke this Court’s jurisdiction by satisfying a
    four-part test:
    [W]e conduct a four-part analysis to determine: (1)
    whether appellant has filed a timely notice of appeal; (2)
    whether the issue was properly preserved at sentencing or
    in a motion to reconsider and modify sentence; (3)
    whether appellant’s brief has a fatal defect; and (4)
    whether there is a substantial question that the sentence
    appealed from is not appropriate under the Sentencing
    Code.
    
    Id. at 170
     (internal citations omitted).
    Hall has complied with the first part of the test by filing a timely notice
    of appeal. However, Hall has not filed a post-sentence motion. “[W]hen a
    court revokes probation and imposes a new sentence, a criminal defendant
    needs to preserve challenges to the discretionary aspects of that new
    sentence either by objecting during the revocation sentencing or by filing a
    post-sentence motion.” Commonwealth v. Kalichak, 
    943 A.2d 285
    , 289
    (Pa. Super. 2008); see also Commonwealth v. Colon, 
    102 A.3d 1033
     (Pa.
    Super. 2014). Because Hall did not object during the revocation hearing or
    file a post-sentence motion, he has waived this issue.      See Pa.R.A.P. 302
    (“Issues not raised in the lower court are waived and cannot be raised for
    the first time on appeal.”); Commonwealth v. Mann, 
    820 A.2d 788
    , 794
    (Pa. Super 2003).     Likewise, an issue that is waived is frivolous.       See
    Kalichak, 
    943 A.2d at 291
     (holding that when an issue has been waived,
    “pursuing th[e] matter on direct appeal is frivolous”).
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    We have conducted an independent review of the record and conclude
    that counsel’s characterization and analysis of the record are accurate, and
    that there are no non-frivolous challenges to Hall’s judgment of sentence.
    Moreover, our review has revealed no other non-frivolous issues that merit
    consideration.
    Judgment of sentence affirmed.        Counsel’s petition to withdraw
    granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/14/2015
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