Com. v. Durand, R. ( 2015 )

J-S26034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD ALLEN DURAND
Appellant No. 1614 MDA 2014
Appeal from the Judgment of Sentence August 27, 2014
in the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002520-2004
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 22, 2015
Appellant Richard Allen Durand (“Appellant”) appeals from the August
27, 2014 judgment of sentence in the Lackawanna County Court of Common
Pleas following the revocation of his probation on an underlying conviction
for aggravated indecent assault, complainant less than 13 years of age.1
Appellant’s counsel has filed an Anders2 brief, together with a petition to
withdraw as counsel. We affirm the judgment of sentence and grant
counsel’s petition to withdraw.
On September 30, 2003, then-18-year-old Appellant engaged in
sexual contact with a 12-year-old victim. On December 17, 2004, Appellant
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1
18 Pa.C.S. § 3125(a)(7).
2
Anders v. California, 386 U.S. 738 (1967).
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pleaded guilty to aggravated assault, complainant less than 13 years of age.
On June 15, 2006, the trial court sentenced Appellant to 33 to 84 months’
imprisonment followed by 3 years of probation.
Following his period of incarceration, Appellant began probation, which
required that he comply with all conditions of probation. Among Appellant’s
probation conditions was Probation Condition 7, which required him to
attend and complete a sex offender evaluation and comply with all
recommendations and conditions. Appellant attended the evaluation, which
recommended that Appellant attend sex offender specific group treatment,
abide by all the terms of the treatment program, and have no unsupervised
contact with minors. On July 3, 2014, Appellant was unsuccessfully
discharged from his sex offender treatment program for (1) minimal
attendance and participation, (2) showing deception on a July 2, 2014
polygraph, and (3) having unsupervised contact in the woods with two
female minors, one of whom he kissed.3
On August 27, 2014, Appellant stipulated to violating a condition of his
probation. The trial court revoked Appellant’s probation and re-sentenced
him to 18 to 36 months’ imprisonment. Appellant did not file a motion for
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3
Appellant was 29 years old at the time of the meeting in the woods. The
girl he kissed was 14.
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reconsideration of the new sentence, but timely appealed on September 19,
2014.4
As previously noted, Appellant’s counsel has filed an application
seeking to withdraw from representation pursuant to Anders v. California
and its Pennsylvania counterpart, Commonwealth v. Santiago.5 Before
addressing the merits of Appellant’s issue presented, we must first pass on
counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa.Super.2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established by our
Supreme Court in Santiago. The brief 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.
Santiago, 978 A.2d at 361. Counsel must also provide a copy of the
Anders brief to the appellant, together with a letter that advises the
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4
Upon order from the trial court, Appellant complied with Pa.R.A.P. 1925(b).
The trial court, however, did not file an opinion pursuant to Pa.R.A.P.
1925(a).
5
978 A.2d 349 (Pa.2009).
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appellant of his or her 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.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super.2007). Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super.2007). “After establishing that the antecedent requirements have
been met, this Court must then make an independent evaluation of the
record to determine whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).
Instantly, counsel filed a petition to withdraw. The petition states
counsel’s determination that an appeal of Appellant’s sentencing is without
merit and no non-frivolous issues exist to be raised on appeal.6 The petition
explains that counsel notified Appellant of the withdrawal request, supplied
him with a copy of the Anders brief, and sent Appellant a letter explaining
his right to proceed pro se or with new, privately-retained counsel to raise
any additional points or arguments that Appellant believed had merit. See
Letter to Appellant, December 30, 2014, attached as Exhibit A to the Petition
to Withdraw as Counsel. In the Anders brief, counsel provides a summary
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6
Although not stated in the petition to withdraw as counsel, the Anders
brief explains counsel made a conscientious examination of the record. See
Appellant’s Brief, p. 11.
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of the facts and procedural history of the case with citations to the record,
refers to evidence of record that might arguably support the issue raised on
appeal, provides citations to relevant case law, and states her conclusion
that the appeal is wholly frivolous and her reasons therefor. Accordingly,
counsel has substantially complied with the requirements of Anders and
Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issue of
arguable merit raised in the Anders brief:
A. Whether the sentence imposed was inappropriately harsh and
excessive and an abuse of discretion for a technical violation of
probation?
Appellant’s Brief, p. 4.
Appellant’s claim raises a challenge to the discretionary aspects of
Appellant’s sentence. See Appellant’s Brief, pp. 9-11. “An appellant wishing
to appeal the discretionary aspects of a probation-revocation sentence has
no absolute right to do so but, rather, must petition this Court for permission
to do so.” Commonwealth v. Kalichak, 943 A.2d 285, 289
(Pa.Super.2008). As this Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, 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, Pa.R.Crim.P. [708];
(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
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sentence appealed from is not appropriate under the Sentencing
Code, 42 [Pa.C.S. § 9781(b)].
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super.2007).
Although Appellant in the present case filed a timely notice of appeal,
and included a concise statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119(f) in his brief, he did not preserve the
issue by requesting reconsideration in open court at sentencing or in a post-
sentence motion. Accordingly, Appellant has waived this claim for review.
Moreover, even if not waived,7, 8
Appellant’s claim lacks merit.
“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. Ahmad, 961 A.2d 884, 888 (Pa.Super.2008). “The
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7
We note that, in light of counsel’s petition to withdraw, we must address
Appellant’s claim regardless of waiver. See Commonwealth v. Lilley, 978
A.2d 995, 998 (Pa.Super.2009) (Anders requires review of issues otherwise
waived on appeal).
8
Had Appellant preserved his claim by requesting reconsideration at
sentencing or filing a post-sentence motion, we would have proceeded to
determine whether he raised a substantial question for review and, if so,
further proceeded to a discussion of the merits of the claim. Pa.R.A.P.
2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).
Appellant’s claim that the sentence of incarceration imposed for technical
violations of probation was unduly harsh raises a substantial question that
would have permitted this Court to review the issue on its merits. See
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super.2000) (a
substantial question is presented when a sentence of total confinement, in
excess of the original sentence, is imposed as a result of a technical violation
of probation).
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Commonwealth establishes a probation violation meriting revocation when it
shows, by a preponderance of the evidence, that the probationer’s conduct
violated the terms and conditions of his probation, and that probation has
proven an ineffective rehabilitation tool incapable of deterring probationer
from future antisocial conduct.” Id. A court’s discretion to impose a more
appropriate sanction should be unfettered “only when it becomes apparent
that the probationary order is not serving this desired end [of
rehabilitation.]” Id. at 888-89.
“Upon revocation the sentencing alternatives available to the court
shall be the same as were available at the time of initial sentencing[.]” 42
Pa.C.S. § 9771(b). “Thus, if the original offense was punishable by total
confinement, such a penalty is available to a revocation court, subject to the
limitation that the court shall not impose total confinement unless it finds
that: (1) the defendant has been convicted of another crime; (2) the
defendant’s conduct indicates a likelihood of future offenses; or (3) such a
sentence is necessary to vindicate the court’s authority.” Kalichak, 943
A.2d at 289. “Sentencing Guidelines do not apply to sentences imposed
following a revocation of probation.” Commonwealth v. Ferguson, 893
A.2d 735, 739 (Pa.Super.2006) (citation omitted). Instead, pursuant to 42
Pa.C.S. § 9721(b), the sentencing court must consider the protection of the
public, the gravity of the offense in relation to the impact on the victim and
the community, and the rehabilitative needs of the defendant. Id.
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Appellant contends that, given the technical nature of his violation, the
sentence he received upon revocation was excessive. See Appellant’s Brief,
p. 11. He is incorrect.
Technical probation violations “can support revocation and a sentence
of incarceration when such violations are flagrant and indicate an inability to
reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.Super.2007);
see also Sierra, 752 A.2d at 912 (failure to keep probation appointments).
Upon revoking Appellant’s probation, the trial court properly sentenced him
to total confinement because – as Appellant stipulated – he flagrantly
violated his probation by having unsupervised contact with two minors, one
of whom he kissed.9 The nature of Appellant’s technical violation indicates
he is likely to commit another crime if not imprisoned.
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9
We note that, because Appellant was not convicted, his admitted
unauthorized contact with minors remains a “technical” violation of the
terms of his probation, as opposed to a “convicted” violation. See 61
Pa.C.S. § 6138(a), (c); see also Goodwine v. Pennsylvania Bd. of Prob.
& Parole, 960 A.2d 184, 186 (Pa.Commw.2008) (noting that, in order for a
to be classified as a convicted violator, a parolee must be convicted of a
crime in a court of record). We further note, however, that in cases
involving child sexual offenders, the violation of a condition prohibiting
unauthorized contact with minors represents a serious “technical” violation
of probation. See Commonwealth v. Schutzues, 54 A.3d 86, 99
(Pa.Super.2012) (recognizing a significant distinction between unauthorized
contact with minors and other technical violation such as missing a meeting
with a probation officer or counselor because the compliance with the
condition to avoid contact with minors—more so than any other—was
designed to ensure that defendant could not sexually assault young girls).
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Moreover, the trial court sentenced Appellant within the statutory
limits for his conviction. Aggravated indecent assault, complainant less than
13 years of age, graded as a felony of the second degree carries a possible
sentence of up to 10 years’ incarceration. 18 Pa.C.S. §§ 1103, 3125(c).
Appellant’s probation revocation sentence of 18 to 36 months’ incarceration,
together with the previously-served 33 to 84 months’ incarceration,
amounted to a sentence of 51 to 120 months’ incarceration for the crime.
This sentence was within statutory limits and, thus, legal. Therefore, we find
no abuse of discretion.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2015
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