Com. v. Ostrander, K. ( 2017 )

J-S87035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KURT OSTRANDER
Appellant No. 2160 MDA 2015
Appeal from the Judgment of Sentence November 16, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004288-2012
CP-06-CR-0005003-2012
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 27, 2017
Kurt Ostrander appeals from the judgment of sentence imposed
following revocation of probation. In addition, Ostrander’s counsel has filed
a petition to withdraw and a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We affirm the judgment of sentence and grant the petition to
withdraw.
On March 6, 2013, Ostrander pled guilty to theft by unlawful taking
and possession of a controlled substance at docket #4288-2012. That same
day, Ostrander pled guilty to possession of a controlled substance at docket
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*
Retired Senior Judge assigned to the Superior Court.
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#5003-2012. On each charge, the court sentenced Ostrander to a
probationary term of two years, all to run concurrently.
Thereafter, Ostrander violated the terms of his probation. At his
Gagnon II1 hearing, Ostrander admitted to violating his probation (failure
to abstain from controlled substances, failure to abstain from alcohol, and
failure to comply with chemical testing). See N.T. Gagnon II Hearing,
7/29/14, at 2-5. The court resentenced him that day on docket #4288-
2012, to two concurrent terms of six months to 729 days’ incarceration, with
credit for time served (80 days) and on docket #5003-2012, to two years’
probation, consecutive to the sentence imposed at #4288-2012.
Ostrander filed a post-sentence motion, which was denied. Ostrander
appealed and the trial court ordered him to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Ostrander filed his
Rule 1925(b) Statement on September 19, 2014.
On July 1, 2016, counsel filed filed an Anders/Santiago brief with this
Court and an application to withdraw as counsel, asserting that Ostrander
has no non-frivolous issues to pursue on appeal. On September 8, 2016,
Ostrander filed a pro se response to counsel’s Anders brief.
Our Supreme Court recently set forth the requirements for counsel’s
brief when seeking to withdraw:
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1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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(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 have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Counsel is required to provide a copy of the Anders brief to
Ostrander, and advise him by letter of his right to “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that
he deems worthy of the court’s attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007).
After our review, we find counsel has substantially complied with these
requirements. See Anders Brief, at 1-5; Application to Withdraw as
Counsel, 7/1/16, at ¶¶ 7-10.2 Counsel has identified one issue on appeal:
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2
We note that counsel’s letter to Ostrander, which is attached to counsel’s
motion to withdraw, states: “Even if my appearance is withdrawn you have
the right to retain new counsel or to yourself raise any issues you wish to
receive the attention of the [S]uperior [C]ourt.” Letter, 6/28/16, ¶ 3.
Though this does not make clear that Ostrander had the right to respond to
counsel’s assertion of frivolity either through new counsel or pro se
regardless of whether counsel is permitted to withdraw, we find counsel’s
imprecise drafting harmless as Ostrander in fact has filed a pro se reply to
counsel’s Anders brief.
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whether the sentencing court had jurisdiction to revoke Ostrander’s
probation and resentence him. Counsel points out that Ostrander was
sentenced to probation in March 2013, and he violated his probation in April
and May 2014 even though he had not yet started serving that probationary
sentence because was still serving another sentence (at docket #4081-
2011). As counsel notes, a court does not have authority to revoke
probation for conduct that occurred before imposition of the probationary
sentence. See Commonwealth v. Carver, 923 A.2d 495 (Pa. Super.
2007). However, that is not the case here, where the court imposed the
probationary sentences prior to Ostrander’s violation.
The case of Commonwealth v. Ware, 737 A.2d 251 (Pa. Super.
1999), is controlling. There, this Court held that the sentencing court had
authority to revoke defendant’s probation, despite the fact that at the time
of revocation of probation defendant had not yet begun to serve the
probationary portion of her split sentence, and even though the offense upon
which revocation of probation was based occurred during the parole period
and not the probationary period. Id. at 253. The Ware Court relied on
Commonwealth v. Wendowski, 420 A.2d 628 (Pa. Super. 1980), which
held that for revocation purposes, the term of probation included the term
beginning at the time probation is granted. “Otherwise, having been
granted probation a defendant could commit criminal acts with impunity - as
far as revocation of probation is concerned - until he commenced actual
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service of the probationary period.” Id. at 630, quoting Wright v. United
States, 315 A.2d 839, 841-42 (D.C. App. 1974)).
If, at any time before the defendant has completed the
maximum period of probation, or before he has begun service of
his probation, he should commit offenses of such nature as to
demonstrate to the court that he is unworthy of probation and
that the granting of the same would not be in subservience to
the ends of justice and the best interests of the public, or the
defendant, the court could revoke or change the order of
probation. A defendant on probation has no contract with the
court. He is still a person convicted of crime, and the expressed
intent of the Court to have him under probation beginning at a
future time does not “change his position from the possession of
a privilege to the enjoyment of a right.” Burns v. United
States, 287 U.S. 216, 222, 53 S.Ct. 154, 156, 77 L.Ed. 266,
269 (1932).
Wendowski, 420 A.2d at 630 (emphasis in original). See also
Commonwealth v. Dickens, 475 A.2d 141 (Pa. Super. 1984) (fact that
appellant had not commenced serving probation when new offense occurred
did not prevent court from revoking its prior order placing appellant on
probation).
Ostrander admitted that he violated the terms of this probation in the
spring of 2014 by failing to refrain from the consumption of alcohol. N.T.
Gagnon II Hearing, 7/29/14, at 3-4; N.T. Gagnon II Hearing, 10/21/15, at
5-6. As a result of this admission, the trial court found Ostrander to be in
violation of the terms of his consecutive probation and resentenced him.
This was proper under Wendowski.
Ostrander states in his Response to Counsel’s Petition to Withdraw and
Anders Brief, that Wendowski applies only to “those rare offenders
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convicted of new criminal charges while serving a “split sentence,” ie., a
sentence for a specific crime in which part of the time is served in
confinement . . . and the rest on probation[.]” Response, 9/10/16, at 1.
There is no support for this argument. In fact, in Wendowski, the
defendant was not serving a split sentence. The fact that the sentence in
Ware was a split sentence is immaterial.3
Our independent review of the record reveals no other non-frivolous
issues. See Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super.
2008). Accordingly, we affirm the judgment of sentence and grant counsel’s
petition for leave to withdraw
Judgment of sentence affirmed; counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2017
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3
Ostrander’s motion for enlargement of time to file additional points of law
and for leave to supplement the certified record is denied.
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