Com. v. Tollerson, L. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LISA TOLLERSON
Appellant No. 2225 EDA 2014
Appeal from the Judgment of Sentence June 27, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0206971-2006
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 26, 2015
Appellant, Lisa Tollerson, appeals from the June 27, 2014 judgment of
sentence of two and one-half to five years’ imprisonment imposed following
the revocation of her probation. Contemporaneous with this appeal,
Appellant’s counsel has filed a petition to withdraw and an Anders Brief,
which states his conclusion that the appeal is wholly frivolous.1 After careful
review, we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
We summarize the relevant procedural background of this case as
follows. On August 28, 2006, Appellant pled guilty to robbery and criminal
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1
Anders v. California, 386 U.S. 738 (1967).
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conspiracy2 at docket number CP-CR-0206971-2006 and received a sentence
of six to 23 months’ house arrest, followed by three years’ probation.
Thereafter, on October 23, 2006, the trial court found Appellant had violated
the conditions of her sentence, vacated her sentence of house arrest,
revoked her probation, and resentenced her to a term of two years of
reporting probation. Appellant appeared before the trial court again on
December 31, 2009 for violating the terms of her sentence, at which time
the trial court revoked her probation and resentenced Appellant to a term of
two years’ probation.
On July 6, 2011, Appellant pled guilty to identify theft3 at docket
number CP-CR-0004559-2011, and the trial court sentenced her to six
months’ probation. At that time, Appellant acknowledged that pleading
guilty to the offense violated her probation at docket number CP-CR-
0206971-2006. N.T., 7/6/11, at 6. The trial court then imposed a sentence
of 11 and ½ to 23 months’ imprisonment, followed by four years’ probation
for Appellant’s violation of probation to run concurrent with the sentence
imposed for identity theft. Id. at 43.
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2
18 Pa.C.S.A. §§ 3701(a)(1)(i) and 903(a)(1), respectively.
3
18 Pa.C.S.A. § 4120(a).
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On January 24, 2014, Appellant was found guilty of simple assault and
possession of an instrument of crime4 at docket number CP-51-CR-0010025-
2013, and a violation of probation hearing was scheduled for June 27, 2014.
At the hearing, the trial court determined Appellant violated her probation on
her sentence at docket number CP-CR-0206971-2006, revoked her
probation, and resentenced her to two and one-half to five years’
imprisonment. Trial Court Order, 6/27/14.5 On July 1, 2014, Appellant filed
a motion to reconsider her sentence, and the trial court denied said motion
on July 24, 2014. On July 28, 2014, Appellant filed a timely notice of
appeal.6
In his Anders Brief, counsel has raised the following issues for our
review.
1. Was there sufficient evidence to support the
finding that [A]ppellant was in violation of her
probation?
2. Was [Appellant] a good candidate for continued
probation?
3. Was [Appellant’s] sentence legal?
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4
18 Pa.C.S.A. §§ 2701(a) and 907(a), respectively.
5
Specifically, the trial court resentenced Appellant to two and one-half to
five years’ imprisonment for her robbery conviction. The trial court imposed
no further penalty on her conviction for criminal conspiracy.
6
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Anders Brief at 3.
“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.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, an Anders brief shall comply with the
requirements set forth by our Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold 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.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client.
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 right to: (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.
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Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
(internal quotation marks and citation omitted). “Once counsel has satisfied
the above requirements, it is then this Court’s duty to conduct its own
review of the trial court’s proceedings and render an independent judgment
as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
In the instant matter, we conclude that counsel’s Anders brief
complies with the requirements of Santiago. First, counsel has provided a
procedural and factual summary of the case with references to the record.
Second, counsel advances relevant portions of the record that arguably
support Appellant’s claims on appeal. Third, counsel concluded “this appeal
[is] wholly frivolous.” Anders Brief at 15. Lastly, counsel has complied with
the requirements set forth in Millisock. As a result, we proceed to conduct
an independent review to ascertain if the appeal is indeed wholly frivolous.
The first issue counsel raises on Appellant’s behalf is the sufficiency of
the evidence to support the finding that Appellant violated the terms of her
probation. Anders Brief at 10. Our standard of review over such
proceedings is well established. “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 of an error of law or
an abuse of discretion.” Commonwealth v. Colon, 102 A.3d 1033, 1041
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(citation omitted), appeal denied, 109 A.3d 678 (Pa. 2015). “The burden of
proof for establishing a violation of probation is a preponderance of the
evidence, lesser than the burden in a criminal trial of proof beyond a
reasonable doubt.” Id. at 1042 (citation omitted).
Instantly, we conclude this issue is without merit. The trial court
explained its finding as follows.
Here, Appellant was serving her July 6, 2011
sentence of eleven and one-half to twenty-three
months[’] incarceration, followed by four years[’]
probation when she was convicted on new charges of
simple assault and possession of an instrument of
crime. Therefore, the [trial] court properly found
that Appellant had directly violated the terms of her
probation.
Trial Court Opinion, 9/12/14, at 4. Moreover, at the hearing, Appellant
acknowledged that such violation occurred. In advocating for a lesser
sentence, Appellant’s counsel addressed the trial court and conceded the
violation as follows. “I mean, there’s no issue here. We know she’s in
direct violation.” N.T., 6/27/14, at 14 (emphasis added). Appellant also
addressed the trial court and acknowledged her conviction, which prompted
the revocation proceedings.
I do accept responsibility for what I did. I accepted
it. I accept it fully. One hundred percent. I
accepted it when I got sentenced [for simple assault
and possession of an instrument of crime]. I
accepted it before that. I said that I was the one in
the wrong on the assault case. I said that. I really
said that. I wanted to say I was working on things.
Id. at 21.
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Accordingly, we conclude there was sufficient evidence that Appellant
violated the terms of her probation, and we agree with counsel that this
issue is wholly frivolous.
The second issue raised on Appellant’s behalf involves the trial court’s
imposition of a sentence of imprisonment. Anders Brief at 12. Specifically,
counsel advances the following question for our review. “Was [Appellant] a
good candidate for continued probation?” Id. Accordingly, this question
implicates the discretionary aspect of Appellant’s sentence.7
It is well settled that, with regard to the
discretionary aspects of sentencing, there is no
automatic right to appeal. [Therefore, b]efore we
reach the merits of this issue, we must engage in a
four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a
concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the
sentence is appropriate under the sentencing code.
The third and fourth of these requirements arise
because Appellant’s attack on his sentence is not an
appeal as of right. Rather, he must petition this
Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there
is a substantial question. [I]f the appeal satisfies
each of these four requirements, we will then
proceed to decide the substantive merits of the case.
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7
See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)
(en banc) (concluding, “review of a discretionary sentencing matter after
revocation proceedings is encompassed by the scope of this Court’s review).
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Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
We conclude Appellant has not met the technical requirements
necessary for this Court to engage in substantive review of her claim.
Appellant has satisfied the first and second requirements by filing a motion
for reconsideration of sentence and a timely notice of appeal. However,
absent from the Anders Brief is “a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence” as required by Rule 2119(f). Pa.R.A.P. 2119(f); see also
Edwards, supra. Accordingly, Appellant has not properly petitioned this
Court to review the discretionary aspect of her sentence, and we are unable
to proceed with a determination of whether such claim would raise a
substantial question. See Edwards, supra at 330.
Lastly, we are asked to evaluate whether Appellant’s sentence was
legal. Anders Brief at 13. “Our standard of review is limited to determining
the … authority of the sentencing court to consider the same sentencing
alternatives that it had at the time of initial sentencing.” Edwards, supra
at 327.
The trial court observed that its sentence was within the statutory
limits in its Rule 1925(a) opinion as follows.
Here, Appellant was serving probation
following her conviction on the charge of robbery and
conspiracy. Appellant was originally sentenced to a
period of six to twenty-three months[’] incarceration
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followed by three years[’] probation. Upon her
fourth revocation and third direct violation, this court
sentenced Appellant to a period of incarceration of
two and one-half to five years, well below the
statutory maximum that could have been imposed
by [the trial court] at Appellant’s original sentencing.
Trial Court Opinion, 9/12/14, at 5. We agree with the trial court that
Appellant’s sentence is legal.
In this case, Appellant’s conviction for robbery was graded as second-
degree felony. Sentencing Order, 8/28/06. Therefore, the maximum term
of imprisonment for which she could be legally sentenced on that offense
was ten years. See 18 Pa.C.S.A. § 1103(2) (“In the case of a felony of the
second degree, for a term which shall be fixed by the court at no more than
ten years[]”). Accordingly, Appellant’s sentence of two and one-half to five
years’ imprisonment is legal.
Based on the foregoing, we conclude Appellant is not entitled to relief,
as all of her issues are wholly frivolous. As such, we affirm the June 27,
2014 judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2015
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