Com. v. Tracey, C. ( 2014 )

J-S51033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER MICHAEL TRACEY, :
:
Appellant : No. 445 MDA 2014
Appeal from the Order entered on February 7, 2014
in the Court of Common Pleas of Franklin County,
Criminal Division, No. CP-28-CR-0000153-2013
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2014
denying
his Motion for Immediate Parole after the trial court recommitted him to
serve the balance of his parole sentence. Steven N. Necaster, Esquire,
and an accompanying brief pursuant to Anders v. California, 386 U.S. 738The trial court has set forth the relevant history as follows:
On August 5, 2013, Tracey entered a plea of nolo contendere to:
Receiving Stolen Property, 18 Pa.C.S.A. § 3925(a). On August
14, 2013, the [c]ourt sentenced Tracey as follows: time served
to 23 months in the Franklin County Jail, followed by 12 months
of probation.
The Franklin County Probation Department filed a Motion for a
Hearing on Violation of Probation/Parole on November 13, 2013.
A violation hearing was held on December 4, 2013, where Tracey
was found in violation of his parole for, inter alia, failure to
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secure an appropriate home plan and failure to seek and
maintain employment. On December 24, 2013, Tracey was
recommitted to serve the balance of his sentence unless he was
re-paroled.
Tracey filed a Motion for Immediate Parole on January 29, 2014,
stating that he had an appropriate residence for his home plan,
the home of his girlfriend. In the motion, Tracey alleged that
-paroled was the lack of an
appropriate home plan. A hearing was held on February 7,
s
motion.
Tracey filed a Notice of Appeal on March 7, 2014, along with a
request for transcript. The transcript of the hearing was filed on
March 13, 2014. [The trial court] issued a parole order on March
24, 2014, placing Tracey on parole, effective March 27, 2014.
Under the terms of the parole order, Tracey was required to
maintain a residence at New Hope Shelter, 25 South Potomac
Street, Waynesboro, Pennsylvania 17268. Tracey was also
required to seek and maintain employment.
Trial Court Opinion, 4/30/14, at 2-3.
Anders
Anders Brief at
5. Necaster filed a separate Petition to withdraw as counsel with this Court
on July 14, 2014. Tracey filed neither a pro se brief, nor retained alternate
counsel for this appeal.
Anders brief, this Court
may not review the merits of the underlying issues without first passing on
Commonwealth v. Edwards, 906 A.2d 1225,
1227 (Pa. Super. 2006) (citation, brackets and quotation marks omitted).
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Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw representation, he must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel
has determined the appeal would be frivolous;
(2) file a brief referring to any issues that might arguably
support the appeal, but which does not resemble a no-
merit letter; and
(3) furnish a copy of the brief to the defendant and advise him
of his right to retain new counsel, proceed pro se, or raise
any additional points he
attention.
Commonwealth v. Curry, 931 A.2d 700, 701 (Pa. Super. 2007) (citation
omitted). In Commonwealth v. Santiago, 978 A.3d 349 (Pa. 2009), our
Supreme Court explained that, when petitioning to withdraw under Anders,
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)
and
(4) st
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 3 Anders]
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Edwards, 906 A.2d at 1228(citation omitted).
Here, we conclude that Necaster has substantially complied with each
of the requirements of Anders. See Commonwealth v. Wrecks, 934 A.2d
1287, 1290 (Pa. Super. 2007) (stating that counsel needs to substantially
comply with the requirements of Anders). Necaster indicates that he has
conscientiously examined the record and determined that an appeal would
be frivolous. The record contains a copy of the letter that Necaster sent to
raw, advising him of his right to
proceed pro se or retain alternate counsel, and his right to file additional
claims. Necaster has complied with the procedural requirements for
withdrawing from representation. Therefore, we shall proceed to an
independent evaluation of the record to determine whether this appeal is
wholly frivolous.
Tracey contends that the trial court abused its discretion by not
immediately paroling him, as the primary basis for his continued detention
was the lack of a home plan, and his girlfriend testified that she would
provide him with a residence. Anders Brief at 8-9.
This court first pointed to the fact that Tracey was not
e seek
employment upon his release. [The trial court] drew focus to
the importance of that condition, by noting that Tracey was
required to perform community service for 5 hours every week
that he is not employed at least 20 hours a week. Tracey
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presented no evidence that he was compliant with those terms.
-compliance with
the requirement of an appropriate home plan. The [trial court]
Devina Wi
and [Tracey] himself. [N.T., 2/7/14.]
***
Based on all the testimony presented at the hearing, [the trial
court] found that Tracey did not have an appropriate home plan,
and had not secured employment. Based on his non-compliance
the sole reason for his continued confinement was a lack of a
[the trial court] first dr
obtain proper employment. The [trial court] then discussed
under the terms of his parole. Regarding the home plan, [the
trial court] found the evaluations of the various home plan
options by the Probation Department to be reasonable. It was
Tracey was not entitled to immediate parole.
Trial Court Opinion, 4/30/14, at 3-5. Based on the foregoing, we conclude
Significantly, we also note that Tracey was paroled on March 27, 2014.
See Order 3/24/14 (stating that Tracey is placed on parole effective March
27, 2014, for a period of 17 months 8 days under the supervision of the
immediate parole is moot.
Based upon our rev
Accordingly, Necaster is permitted to withdraw.
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Petition to withdraw as counsel granted; order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
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