Com. v. Dapp, C. ( 2017 )


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  • J-S32019-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    CHRISTOPHER DAPP
    Appellant                   No. 27 EDA 2017
    Appeal from the Order Entered October 12, 2016
    In the Court of Common Pleas of Pike County
    Criminal Division at No: CP-52-CR-0000348-2014
    BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD, * JJ.
    MEMORANDUM BY STABILE, J.:                              FILED JULY 17, 2017
    Appellant, Christopher Dapp, appeals from the October 12, 2016 order
    entered in the Court of Common Pleas of Pike County (“trial court”), denying
    his motion for early release from probation. Counsel for Appellant has filed
    a brief in accordance with Anders v. California, 
    368 U.S. 738
     (1969),
    concurrently with an application to withdraw.      Following review, we grant
    counsel’s application for leave to withdraw and affirm the order denying
    Appellant’s motion.
    The trial court summarized the factual and procedural history of the
    matter as follows.
    On December 12, 2014, [Appellant] entered a negotiated
    plea to three (3) counts of Retail Theft.     [Appellant] was
    sentenced on February 5, 2015 and was placed on probation for
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-S32019-17
    a period of one (1) year on each count, to be served consecutive
    for a total aggregate sentence of three (3) years of probation
    supervision. As indicated above, the [trial court’s] sentence was
    entered pursuant to a negotiated guilty plea agreement between
    the Commonwealth and [Appellant].
    [Appellant] filed a Motion for Early Release from probation
    supervision on August 23, 2016.           A hearing was held on
    [Appellant’s] Motion on October 6, 2016. [Appellant] testified
    that he served in the military in the past and had completed six
    (6) years in the reserves. [Appellant] also testified that he was
    seeking to re-enlist in the military for active duty, but the terms
    of his probation supervision would not allow him to do so.
    [Appellant] had completed about one and one-half (1 ½) years
    of his probation supervision at the time of the hearing.
    [The trial court] took the matter under advisement in order
    to review the record in is entirety. On October 12, 2016, [the
    trial court] denied [Appellant’s] Motion for Early Release. On
    November 10, 2016, [Appellant] field a Notice of Appeal as to
    the Order dated October 12, 2016. On November 14, 2016, [the
    trial court] ordered [Appellant] to file a Concise Statement of
    Matters Complained of on Appeal within twenty-one (21) days of
    the date of the Order. [Appellant] filed a Concise Statement of
    Matters Complained of on Appeal on December 5, 2016.
    Trial Court Opinion, 12/27/16, at 1-2. The trial court issued an opinion on
    December 27, 2016. On February 24, 2017, appellate counsel filed, in this
    Court, an Anders brief concomitantly with an application to withdraw. The
    Anders brief raises one issue for review: “Whether the [t]rial [c]ourt abused
    its discretion by denying [Appellant’s] Petition for Early Release from
    Probation and by failing to immediately release [Appellant] from probation
    supervision.” Anders Brief at 6.
    Before we can address the merits of Appellant’s claim, we must first
    address counsel’s application to withdraw.   Commonwealth v. Goodwin,
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    J-S32019-17
    
    928 A.2d 287
    , 290 (Pa. Super. 2007) (en banc).            In order for court-
    appointed counsel to withdraw, 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) file a brief
    referring to anything that arguably might support the appeal but
    which does not resemble a “no-merit” letter or amicus curiae
    brief; and (3) furnish a copy of the brief to the defendant and
    advise the defendant of his or her right to retain new counsel or
    raise any additional points that he or she deems worthy of the
    court’s attention.
    Commonwealth v. Lilley, 
    978 A.2d 995
    , 997 (Pa. Super. 2009) (quoting
    Commonwealth v. Rojas, 
    874 A.2d 638
    , 639 (Pa. Super. 2005)).
    Following review, we conclude counsel has satisfied the procedural
    requirements set forth in Anders.        In the brief, counsel explains her
    conclusion that the issue sought to be raised by Appellant, that the trial
    court abused its discretion when it denied his petition to terminate his
    probation early is wholly frivolous. Further, Counsel sent Appellant a letter,
    along with a copy of the Anders brief, dated February 21, 2017, advising
    Appellant of his right to retain new counsel or act on his own behalf.
    Because we find that counsel has complied with the procedural
    requirements of Anders, we next address whether counsel has satisfied the
    following substantive requirements:
    (1)   provide a summary of the procedural history and facts,
    with citations to the record;
    (2)   refer to anything in the record counsel believes arguably
    supports the appeal;
    (3)   set forth counsel’s conclusion that the appeal is frivolous;
    and
    -3-
    J-S32019-17
    (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).
    In her Anders brief, counsel has included a statement of the case
    including   the procedural history of the case.   Anders Brief at 7.      Thus,
    counsel has complied with the first requirement. The second requirement is
    for counsel to reference anything in the record that she believes arguably
    supports the appeal. See Santiago, 
    978 A.2d at 361
    . Here, counsel raises
    one issue: whether the trial court abused its discretion when it denied his
    petition to terminate his probation early. Anders Brief at 6. Thus, counsel
    has satisfied the second Anders requirement.
    The third substantive requirement of Anders is for counsel to state
    her conclusion that the appeal is frivolous.   Santiago, 
    978 A.2d at 361
    .
    After which, counsel must provide the reasons for concluding that the brief is
    frivolous. 
    Id.
     Counsel’s brief complied with these requirements, thus she
    has satisfied the final prong of the Anders test.     Anders Brief at 9-11.
    Because we find counsel has satisfied the requirements for a petition to
    withdraw under Anders and Santiago, we must address the substantive
    issues raised by Appellant.
    Appellant filed a motion to terminate his probation early in accordance
    with 42 Pa.C.S.A. § 9771(a), which provides that “[t]he court may at any
    time terminate continued supervision or lessen or increase the conditions
    -4-
    J-S32019-17
    upon which an order of probation has been imposed.”           42 Pa.C.S.A. §
    9771(a). An appeal from an order denying a request for early termination of
    probation is a challenge to the underlying sentence.
    Sentencing is a matter vested in the sound discretion of the
    sentencing judge, and a sentence will not be disturbed on appeal
    absent a manifest abuse of discretion. In this context, an abuse
    of discretion is not shown merely by an error in judgment.
    Rather, the appellant must establish, by reference to the record,
    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. Proctor, 
    167 A.3d 261
     (Pa. Super. 2017) (quoting
    Commonwealth v. Gonzalez, 
    109 A.3d 711
    , 731 (Pa. Super 2015)
    (citation omitted)). In the matter sub judice, Appellant entered a negotiated
    plea for a sentence of three years’ probation. The trial court held a hearing
    on Appellant’s request to terminate his probation, and the Commonwealth
    objected to his motion. “[W]hen a plea is entered following negotiations, it
    is even more important that the terms of the agreement be followed.”
    Commonwealth v. Ortiz, 
    854 A.2d 1280
    , 1283 (Pa. Super. 2004) appeal
    denied, 
    863 A.2d 1145
     (Pa. 2004) (citation omitted). Thus, we find that the
    trial court did not abuse its discretion when it denied Appellant’s request for
    early termination of probation.
    Order affirmed. Petition to withdraw granted.
    -5-
    J-S32019-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/17/2017
    -6-
    

Document Info

Docket Number: Com. v. Dapp, C. No. 27 EDA 2017

Filed Date: 7/17/2017

Precedential Status: Precedential

Modified Date: 7/17/2017