Com. v. Gates, R. ( 2015 )

J-S22032-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAYMOND ANTHONY GATES, JR., :
:
Appellant : No. 1716 WDA 2014
Appeal from the Judgment of Sentence Entered September 9, 2014,
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0001282-2014
and CP-25-CR-0002225-2010
BEFORE: PANELLA, LAZARUS, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 03, 2015
Raymond Anthony Gates, Jr. (Appellant) appeals from the judgment of
sentence imposed after the revocation of his probation/parole and his
sentence imposed after pleading guilty to theft by unlawful taking. Counsel
for Appellant has filed a petition to withdraw as counsel pursuant to Anders
v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We deny counsel’s petition to withdraw, and remand
with instructions.
The history of this case can be summarized as follows. On September
30, 2010, Appellant pled guilty to burglary; and, on November 17, 2010,
Appellant was sentenced to 11.5 to 23 months’ incarceration to be followed
by 3 years’ probation. Appellant was paroled on April 12, 2011. On
December 19, 2012, Appellant’s sentence of parole and probation was
*Retired Senior Judge assigned to the Superior Court.
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revoked and he was sentenced to 11.5 to 23 months’ incarceration, with
credit for 323 days for time served, to be followed by 3 years of probation.
Appellant was paroled on April 6, 2013.
On September 9, 2014, Appellant pled guilty at CP-25-CR-0001282-
2014 (1282 of 2014) to theft by unlawful taking, a third-degree
misdemeanor. He was sentenced to three to twelve months’ incarceration.
On the same day, Appellant’s sentence of parole and probation was revoked,
and he was sentenced to a period of incarceration of fifteen to thirty months
to be served concurrently with his sentence at 1282 of 2014.
On September 19, 2014, Appellant timely filed a post-sentence
motion. In that motion, Appellant asserted that the trial court erred in
failing to give Appellant credit for time served. The trial court denied that
motion, and Appellant timely filed a notice of appeal at both docket
numbers. The trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant
timely complied. In his concise statement, Appellant again raised the issue
of trial court error for failing to apply credit for time served.
Counsel has filed with this Court a petition to withdraw and an Anders
brief. Thus, before we consider the substance of this appeal, we must
address counsel’s compliance with Anders:
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
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the record, counsel finds the appeal to be wholly frivolous.
Counsel must also file an Anders brief setting forth issues that
might arguably support the appeal along with any other issues
necessary for the effective appellate presentation thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant's behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
This Court’s docket reveals a petition for leave to withdraw as counsel
filed by Attorney Emily E. Merski (Attorney Merski). Attorney Merski avers
that she “has performed a thorough review of all available transcripts,
pleadings and other materials” and that she has included with the petition “a
brief on behalf of the Appellant which addresses the issues involved in this
case which question the sufficiency and weight of the evidence and/or the
other issues of arguable merit in this case, if any.” Petition for Leave to
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Withdraw As Counsel, 1/27/2015, at ¶¶ 2-3.1 Counsel has also attached to
the petition a letter addressed to Appellant explaining that she has not
uncovered any meritorious issues to present on appeal.2 Assuming,
arguendo, that despite the aforementioned issues, Attorney Merski has
complied with the technical requirements of Anders, we now consider the
additional requirements set forth in Santiago with respect to the brief itself.
[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
1
Instantly, Appellant pled guilty to theft by unlawful taking, which led to the
revocation of his probation or parole. To the extent Appellant appeals from
the plea to theft by unlawful taking, he has waived his right to challenge the
weight or sufficiency of the evidence. Commonwealth v. Pantalion, 957
A.2d 1267, 1271 (Pa. Super. 2008) (“When an appellant enters a guilty plea,
[he] waives her right to “challenge on appeal all non-jurisdictional defects
except the legality of [his] sentence and the validity of [his] plea.”). To the
extent Appellant is appealing from the revocation of probation or parole, he
may only challenge the validity of the revocation proceedings, the legality of
the sentence, and the discretionary aspects of his sentence. See
Commonwealth v. Ortega, 995 A.2d 879, 883-84 (Pa. Super. 2010) (“The
scope of review in an appeal following a sentence imposed after probation
[or parole] revocation is limited to the validity of the revocation proceedings
and the legality of the sentence imposed following revocation.”); see also
Commonwealth v. Catrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc)
(holding that the scope of review from the revocation of probation or parole
includes the discretionary aspects of the sentence).
2
The certificate of service on the petition to withdraw is concerning. It was
sent to inmate Gregory Dunbar, Jr. at SCI-Camp Hill. Appellant (whose
name is Raymond Gates) is incarcerated at SCI-Forest, where the attached
letter was sent.
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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.
In her Anders brief, Attorney Merski presents one issue which
arguably supports the appeal: “Whether the Appellant’s sentence is
manifestly excessive, clearly unreasonable and inconsistent with the
objectives of the Pennsylvania Sentencing Code.” Anders Brief at 3. In her
statement of reasons the appeal is wholly frivolous pursuant to Santiago,
Attorney Merski avers that this issue, implicating the discretionary aspects of
Appellant’s sentence, is without merit because failing to consider adequately
mitigating factors does not raise a substantial question. Id. at 7.
However, Appellant did not raise this issue either in his post-sentence
motion or orally at sentencing. “[W]hen a court revokes probation [or
parole] and imposes a new sentence, a criminal defendant needs to preserve
challenges to the discretionary aspects of that new sentence either by
objecting during the revocation sentencing or by filing a post-sentence
motion.” Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super.
2008). Accordingly, the only issue presented by Attorney Merski on appeal
was waived prior to the filing of the Anders brief.
Thus, due to counsel’s technical deficiencies in her petition, which
included reviewing issues not available on appeal and potentially sending the
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petition to the incorrect person, as well as her failure to explain why the
issue raised in Appellant’s post-sentence motion, failure to give credit for
time served, is without merit, we cannot say that Attorney Merski has
complied with the requirements set forth in Anders/Santiago. Accordingly,
we “deny the petition to withdraw and remand the case with appropriate
instructions … directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf.” Wrecks, supra.
Petition to withdraw as counsel denied. Case remanded with
instructions. Jurisdiction retained.
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