Com. v. Smith, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHAD EUGENE SMITH
Appellant No. 1284 MDA 2018
Appeal from the Judgment of Sentence imposed July 3, 2018
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-XX-XXXXXXX-2016
BEFORE: STABILE, J., DUBOW, J., and STEVENS,* P.J.E.
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2019
Appellant, Chad Eugene Smith, appeals from the judgment of sentence
imposed on July 3, 2018 in the Court of Common Pleas of Dauphin County
following revocation of his parole.1 Appellant claims the trial court abused
its discretion in recommitting Appellant to serve back time that Appellant
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The trial court’s sentencing order applied to two separate dockets.
Appellant’s notice of appeal included only one docket number, No. 3341 CR
2016. Appellant suggests he “mistakenly forgot to include” the second
docket in his notice of appeal, which was filed on July 31, 2018. Anders
Brief at 8 n. 1. Because Appellant filed the appeal from Docket No. 3341 of
2016 only, we limit our discussion to the proceedings on that docket. We
note in passing that a separate notice of appeal would have been required
for the second docket. See Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018) (failure to file separate notices of appeal requires quashal of appeals
filed after the date of the Walker decision, i.e., June 1, 2018).
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considers excessive and unreasonable. Appellant’s counsel has filed a
petition to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967), and a brief in support. Upon review, we grant counsel’s petition to
withdraw and affirm Appellant’s judgment of sentence.
On September 20, 2016, Appellant entered a guilty plea to one count
of driving under the influence. 75 Pa.C.S.A. § 3802(d)(3). The trial court
imposed a sentence of three days to six months in the Dauphin County
Prison. By order entered September 22, 2016, the court directed that
Appellant be paroled on September 23, 2016, after completion of the
mandatory sentence of 48 hours’ incarceration.
Following a July 3, 2018 revocation hearing, which was Appellant’s
second revocation proceeding, the court revoked Appellant’s parole and
sentenced him to serve his back time of five months and twenty-seven days.
Appellant filed two post-sentence motions seeking modification of his
sentence. The court subsequently entered amended orders on July 12 and
July 24, 2018. However, those amended orders did not change Appellant’s
back time sentence on Docket 3341 CR 2016, although the July 24, 2018
order did make the sentence concurrent with sentences imposed on other
dockets.
Appellant filed a timely notice of appeal on July 31, 2018. The trial
court ordered a Rule 1925(b) statement of errors complained of on appeal.
Counsel filed a notice of intent to file an Anders brief in lieu of a Rule
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1925(b) statement. The trial court then notified this Court that, absent a
request from this Court, no Rule 1925(a) opinion would be issued in light of
the anticipated Anders brief.
Appellant presents one issue for this Court’s consideration:
Did the trial court abuse its discretion in re-sentencing Appellant
to his back time of fourteen (14) months at Docket 4276 CR
2016 and five (5) months, twenty-seven (27) days at Docket
3341 CR 2016 there the sentence was excessive and
unreasonable?
Anders Brief at 5.
Before addressing the merits of Appellant’s issue, we must first
address counsel’s request to withdraw. Commonwealth v. Washington,
63 A.3d 797, 800 (Pa. Super. 2013); see also Commonwealth v. Rojas,
874 A.2d 638, 639 (Pa. Super. 2005) (“faced with a purported Anders brief,
this Court may not review the merits of the underlying issues without first
passing on the request to withdraw”) (citation omitted). 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) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)). In addition, counsel must attach to the petition to withdraw a copy
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of the letter sent to the client advising him of his rights. Commonwealth
v. Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005). Our review confirms
that counsel has complied with the procedural requirements of Anders, as
outlined in Cartrette and Millisock.
We also review counsel’s Anders brief for compliance with the
requirements set forth in Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). In Santiago, our Supreme Court explained:
[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 361. Based on our review, we conclude that counsel’s Anders brief
substantially complies with Santiago. With regard to the first requirement,
we note that counsel has provided a summary of the procedural history and
facts. Although the summary does not include pinpoint citations to the
record, we do not consider that an impediment to our review or to a finding
of compliance in light of the fact “Appellant is not contesting the basis of the
parole violations, but instead contends that the sentence imposed was
excessive and constituted an abuse of discretion.” Anders Brief at 12.
Further, we find that the brief complies with the remaining three
requirements of Anders, as refined by Santiago. Therefore, we proceed to
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examine the issue raised in the Anders brief and to conduct “a full
examination of all the proceedings, to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa. Super.
2018) (en banc). In Yorgey, we acknowledged that while “the Anders
Court did not delineate the exact meaning of ‘full examination of all the
proceedings,’ the Pennsylvania Supreme Court recognized in Santiago,
supra, that only ‘complete frivolity . . . supports counsel’s request to
withdraw and a court’s order granting the request.’” Id. at 1197 (quoting
Santiago, 978 A.2d at 358). Moreover, “Anders not only requires counsel
to conduct an exhaustive examination of the record, but also ‘places the
responsibility on the reviewing court to make an independent determination
of the merits of the appeal.’” Id. (quoting Santiago, 978 A.2d at 358).
Counsel’s Anders brief raises the issue of whether the trial court
abused its discretion by resentencing Appellant to his back time of five
months and twenty-seven days. Anders Brief at 5. Although counsel
questions whether the court abused its discretion, and has complied with the
requirements of Pa.R.A.P. 2119(f), this Court has recognized:
[T]here is no authority for a parole-revocation court to impose a
new penalty. [Commonwealth v. Mitchell, 632 A.2d 934, 936
(Pa. Super. 2003).] Rather, the only option for a court that
decides to revoke parole is to recommit the defendant to serve
the already-imposed, original sentence. [Commonwealth v.
Mitchell, 632 A.2d 934, 936 (Pa. Super. 2003).] At some point
thereafter, the defendant may again be paroled. Id.
....
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Following parole revocation and recommitment, the proper issue
on appeal is whether the revocation court erred, as a matter of
law, in deciding to revoke parole and, therefore, to recommit the
defendant to confinement. Mitchell, 632 A.2d at 936.
Accordingly, an appeal of a parole revocation is not an appeal of
the discretionary aspects of sentence. Id.
As such, a defendant appealing recommitment cannot contend,
for example, that the sentence is harsh and excessive.
[Commonwealth v. Galletta, 864 A.2d 532, 539 (Pa. Super.
2004).] Such a claim might implicate discretionary sentencing
but it is improper in a parole-revocation appeal. Id.
Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)
(footnoted omitted).
As noted above, “Appellant is not contesting the basis of the parole
violations, but instead contends that the sentence imposed was excessive
and constituted an abuse of discretion.” Anders Brief at 12. Although
Appellant attempts to challenge the discretionary aspects of his sentence,
this is not a proper attack on a parole revocation. As this Court stated in
Kalichak, “[T]he only option for a court that decides to revoke parole is to
recommit the defendant to serve the already-imposed original sentence.”
Kalichak, 943 A.2d at 290 (citing Mitchell, 632 A.2d at 936).
We have conducted our independent examination of the proceedings,
as required by Santiago. Based on that examination, we agree that this
appeal is wholly frivolous. Therefore, we grant counsel’s petition to
withdraw and affirm Appellant’s judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2019
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