Com. v. Erwin, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTONIO ERWIN
Appellant No. 2275 EDA 2018
Appeal from the Judgment of Sentence Entered July 3, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001972-2011
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED JULY 22, 2019
Appellant, Antonio Erwin, appeals from the judgment of sentence
imposed following revocation of his probation. We affirm and grant counsel's
petition to withdraw.
The trial court opinion sets forth the relevant facts and procedural
history of this case as follows:
On January 9, 2012, [the trial court] sentenced Appellant,
on the charges of Possession With Intent to Distribute and
simple possession of heroin, to an aggregate sentence of
three to six years of incarceration, followed by two years of
probation. Appellant filed a timely notice of appeal. [The]
Superior Court affirmed the judgment of sentence on
September 26, 2012.1
1 399 EDA 2012 [60 A.3d 862 (Pa.Super. 2012)].
On July 3, 2018, Appellant was before the court for a
violation of probation hearing. The court heard testimony
from Appellant's probation agent, Christopher Bachman,
who informed the court that Appellant had absconded from
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probation and had failed to report for approximately two
months prior to being arrested. Agent Bachman also related
to the court that Appellant had an extensive history of
violations for drug use and absconding from supervision
while on the parole phase of his sentence, that the Parole
Board had utilized parole violator centers as well as inpatient
treatment, and that Appellant had attended outpatient
treatment while on probation but stopped attending at the
same time he stopped reporting to probation. Appellant told
the court that he had, been injecting heroin "for a few
years," that he was currently injecting a bundle of heroin
per day, and that he was not sure how many times he had
overdosed. The court inquired into Appellant's history of
drug use, his family relationships, and his work history.
At the conclusion of the hearing, the court revoked
Appellant's probation and resentenced him to a term of six
to twenty-three months of incarceration, with a drug
treatment evaluation2 and immediate parole to a drug
treatment facility upon bed availability.
2 The Forensic Intensive Recovery (FIR) Program was
implemented in response to a federal consent decree
that required the City of Philadelphia to reduce its
inmate population. FIR is a prison deferral initiative
that offers eligible participants substance abuse
treatment in lieu of incarceration.
On August 2, 2018, Appellant filed a Notice of Appeal. On
August 16, 2018, this court ordered Appellant to file a
Concise Statement of [Errors...] pursuant to Pa.R.A.P.
1925(b). On September 18, 2018, the transcribed notes of
testimony became available. On October 5, 2018,
Appellant's court -appointed counsel filed a statement of
intent...pursuant to Pa.R.A.P. 1925(c)(4).
(Trial Court Opinion, filed October 23, 2018, at 1-2) (internal citations to
record and footnote 3 omitted). On December 4, 2018, counsel filed a petition
to withdraw and a brief in this Court pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We denied that petition and
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remanded for counsel to file a revised petition, which counsel filed on May 2,
2019.
As a preliminary matter, counsel seeks to withdraw from representing
Appellant, pursuant to Anders, supra and Commonwealth v. Santiago,
602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel
to: (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 his right to obtain new counsel or file a pro se brief to raise any
additional points the appellant deems worthy of review. Santiago, supra at
173-79, 978 A.2d at 358-61.
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court -appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel's brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
Under Anders, the right to counsel is vindicated by
counsel's examination and assessment of the record and
counsel's references to anything in the record that arguably
supports the appeal.
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Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n 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 178-79, 978 A.2d at 361. Substantial compliance with these
requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super. 2007). After establishing that counsel has met the antecedent
requirements to withdraw, this Court makes an independent review of the
record to confirm that the appeal is wholly frivolous. Commonwealth v.
Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also Commonwealth v.
Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).
Instantly, Appellant's counsel has filed a revised petition to withdraw.
The petition states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant's immediate right to
retain new counsel or to proceed pro se to raise any additional issues Appellant
deems worthy of this Court's attention. In the Anders brief, counsel provides
a summary of the facts and procedural history of the case. Counsel's brief
refers to relevant law that might arguably support Appellant's issue. Counsel
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further states the reasons for his conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the technical requirements
of Anders and Santiago. Appellant has not responded to the Anders brief
pro se or with newly -retained private counsel.
In the Anders brief, counsel raises the following issue on Appellant's
behalf:
WHETHER THE SENTENCE OF 6 TO 23 MONTHS'
INCARCERATION WITH CONDITIONAL PAROLE UPON
COMPLETION OF A DRUG EVALUATION WAS SO HARSH TO
BE CONSIDERED TOO SEVERE A PUNISHMENT?
(Anders Brief at 2).
Appellant argues the imposition of a sentence of incarceration was harsh
and manifestly excessive in light of Appellant's request for immediate parole
on the day of sentencing and outpatient drug therapy, instead of the FIR drug
evaluation and parole to inpatient therapy. Appellant does not contest the
actual length or term of the sentence of six to twenty-three months. His
complaint rests mainly with the eight -week delay before parole, based on the
court's desire to keep Appellant off the streets, away from drugs, and clean
until the FIR drug evaluation and therapy was completed. As presented,
Appellant's claim challenges the discretionary aspects of the sentence. See
Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super. 2002) (stating
claim that sentence is manifestly excessive challenges discretionary aspects
of sentencing).
When reviewing the outcome of a revocation proceeding, this Court is
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limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013) (en
banc) (explaining that, notwithstanding prior decisions which stated our scope
of review in revocation proceedings is limited to validity of proceedings and
legality of sentence, this Court's scope of review on appeal from revocation
sentencing can also include discretionary sentencing challenges).
In the context of probation revocation and resentencing, the Sentencing
Code provides, in pertinent part:
§ 9771. Modification or revocation of order of
probation
(a) General rule.-The court may at any time
terminate continued supervision or lessen or increase the
conditions upon which an order of probation has been
imposed.
(b) Revocation.-The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the court shall be the same as were
available at the time of initial sentencing, due consideration
being given to the time spent serving the order of probation.
(c) Limitation on sentence of total
confinement.-The court shall not impose a sentence of
total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it
is likely that he will commit another crime if he is not
imprisoned; or
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(3) such a sentence is essential to vindicate the
authority of the court.
42 Pa.C.S.A. § 9771(a) -(c). "The reason for revocation of probation need not
necessarily be the commission of or conviction for subsequent criminal
conduct. Rather, this Court has repeatedly acknowledged the very broad
standard that sentencing courts must use in determining whether probation
has been violated." Commonwealth v. Colon, 102 A.3d 1033, 1041
(Pa.Super. 2014), appeal denied, 631 Pa. 710, 109 A.3d 678 (2015).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see [Rule 720]; (3) whether appellant's brief has
a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. §
9781(b).
Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (most internal citations omitted).
This Court must evaluate what constitutes a substantial question on a case -
by -case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007). A
substantial question exists "only when the appellant advances a colorable
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argument that the sentencing judge's actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process." Sierra, supra.
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
sentence is within the statutory limits. Commonwealth v. Mouzon, 571 Pa.
419, 430, 812 A.2d 617, 624 (2002) Bald allegations of excessiveness,
however, do not raise a substantial question to warrant appellate review. Id.
at 435, 812 A.2d at 627.
"In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court, which, absent
an abuse of that discretion, will not be disturbed on appeal." Commonwealth
v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). The Sentencing Guidelines
do not apply to sentences imposed following a revocation of probation.
Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.Super. 2006), appeal
denied, 588 Pa. 788, 906 A.2d 1196 (2006). "[U]pon sentencing following a
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. Coolbaugh, 770 A.2d 788, 792 (Pa.Super.
2001).
Pursuant to Section 9721(b), "the court shall follow the general principle
that the sentence imposed should call for confinement that is consistent with
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the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant." 42 Pa.C.S.A. § 9721(b). "[T]he court shall make as
a part of the record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed." Id.
Nevertheless, the revocation "court need not undertake a lengthy discourse
for its reasons for imposing a sentence" or refer to a specific statute; but, the
record as a whole must reflect that the court considered the facts of the case
and the character of the offender. Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475(2010).
Instantly, Appellant asked for immediate parole when the trial court
imposed the revocation sentence. The transcript includes a lengthy discussion
regarding the delay in FIR drug evaluations and the court's reasons for
confining Appellant until the evaluation was completed. Therefore, we deem
Appellant's issue preserved at the time of sentencing, contrary to the
Commonwealth's contention. Here, the court reasoned:
Appellant's history of parole violations as well as his own
credible testimony about the level of his addiction made
clear that community supervision had thus far been
ineffective in rehabilitating him and that Appellant
presented a significant danger to himself in the form of
potential overdose. Therefore, a sentence of confinement
with parole to an inpatient rehabilitation facility was
appropriate.
In resentencing Appellant, this court was balancing the
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interests of society, Appellant's individual circumstances
and the possibility of rehabilitating Appellant outside of
prison. This court found that due to Appellant's repeated
failure to adhere to the conditions of his supervision that
probation was no longer viable or beneficial and that
Appellant and the Commonwealth would both be better
served if Appellant was held until a bed was available and
he could be securely transported to a rehabilitation facility.
(Trial Court Opinion at 4). The record and relevant law support the court's
decision, particularly in light of Appellant's admitted struggles to participate
in outpatient therapy and remain drug -free while on probation. Thus,
Appellant is not entitled to relief on the ground asserted. Following an
independent review of the record, we agree with counsel that the appeal is
wholly frivolous. See Dempster, supra. Accordingly, we affirm the
revocation sentence and grant counsel's petition to withdraw.
Judgment of sentence affirmed; counsel's petition to withdraw is
granted.
Judgment Entered.
Jseph D. Seletyn,
Prothonotary
Date: 7/22/19
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