Com. v. Tolbert, T. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TETHELMA WILLIM TOLBERT, :
:
Appellant : No. 103 EDA 2019
Appeal from the Judgment of Sentence Entered November 28, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000044-2017
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TETHELMA WILLIM TOLBERT, :
:
Appellant : No. 109 EDA 2019
Appeal from the Judgment of Sentence Entered November 28, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005507-2017
BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 27, 2019
Tethelma Willim Tolbert (Appellant) appeals from the judgment of
sentence entered on November 28, 2018, following the revocation of her
probation and parole at two separate docket numbers.1 Appellant’s counsel
1 Appellant filed two separate notices of appeal. Because these cases are
interrelated and the issue identified in each appal is identical, we consolidate
(Footnote Continued Next Page)
*Retired Senior Judge assigned to the Superior Court.
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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). Upon review, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
We provide the following background. At Docket 44 of 2017, Appellant
pleaded guilty to terroristic threats and was sentenced to time served to 23
months of incarceration, followed by one year of probation. At Docket 5507
of 2017, Appellant pleaded nolo contendere to disorderly conduct and was
sentenced to time served to 12 months of incarceration.
On November 28 2018, Appellant appeared for a Gagnon II2 hearing
regarding potential revocation of her probation and parole at Docket 44 of
2017 and her parole at Docket 5507 of 2017. The alleged violations were
Appellant’s new conviction and a technical violation for failure to make
(Footnote Continued) _______________________
the appeals. See Pa.R.A.P. 513 (“Where there is more than one appeal from
the same order, or where the same question is involved in two or more
appeals in different cases, the appellate court may, in its discretion, order
them to be argued together in all particulars as if but a single appeal.”).
2
When a parolee or probationer is detained pending a revocation
hearing, due process requires a determination at a pre-
revocation hearing, a Gagnon I hearing, that probable cause
exists to believe that a violation has been committed. Where a
finding of probable cause is made, a second, more
comprehensive hearing, a Gagnon II hearing, is required before
a final revocation decision can be made.
Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super. 2001) (citations
omitted).
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meaningful payments towards her costs and fines. The trial court revoked
Appellant’s probation and parole at Docket 44 of 2017, and, consistent with
the recommendation of the Office of Adult Probation and Parole, sentenced
her to back time of 500 days of incarceration, with parole after three
months, followed by one year of probation. The trial court also revoked
Appellant’s parole at Docket 5507 of 2017 and sentenced her to back time of
236 days of incarceration, with parole after three months, to be served
concurrent with the period of incarceration imposed at Docket 44 of 2017.
Appellant did not file a post-sentence motion. This timely-filed appeal
followed.3 In this Court, Appellant’s counsel filed both an Anders brief and
a petition to withdraw as counsel. Accordingly, the following principles guide
our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of 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
3 Counsel filed a statement of intent to file an Anders brief, consistent with
Pa.R.A.P. 1925(c)(4). In response, the trial court transmitted the record to
this Court in lieu of a substantive Pa.R.A.P. 1925(a) opinion.
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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 …. 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 and unnecessary capitalization omitted). Our Supreme Court has
clarified portions of the Anders procedure as follows.
[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.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has complied substantially with the
technical requirements set forth above.4 We first consider the issue raised
by counsel, and then have the responsibility “to conduct a simple review of
the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
4 Appellant has not filed a response to counsel’s motion.
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Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
The sole issue arguably supporting an appeal cited by Appellant’s
counsel is whether the trial court abused its discretion in sentencing
Appellant to an excessive aggregate sentence of incarceration for her parole
violations.5 Specifically, Appellant contends that she should have been
sentenced to immediate parole in light of her anxiety and need to care for
her children. Anders Brief at 3, 7. We agree with counsel that such a claim
is frivolous, but for different reasons.
A discretionary-aspects-of-sentencing claim is not a cognizable claim
following a parole revocation because an “order revoking parole does not
impose a new sentence; it requires appellant, rather, to serve the balance of
a valid sentence previously imposed.” Commonwealth v. Mitchell, 632
A.2d 934, 936 (Pa. Super. 1993) (citation omitted). “The power of the court
after a finding of violation of parole in cases not under the control of the
State Board of Parole is to recommit to jail[.] There is no authority for
giving a new sentence with a minimum and maximum.” Id. (citations and
quotation marks omitted).
Accordingly, an appeal of a parole revocation is not an appeal of
the discretionary aspects of sentence.
5 Appellant does not challenge her probation violation sentence of one year
of probation. Rather, she is only concerned with her sentences of
incarceration, which resulted from her parole violations.
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As such, a defendant appealing recommitment cannot contend,
for example, that the sentence is harsh and excessive. Such a
claim might implicate discretionary sentencing but it is improper
in a parole-revocation appeal. Similarly, it is inappropriate for
a parole-revocation appellant to challenge the sentence by
arguing that the court failed to consider mitigating factors or
failed to place reasons for sentence on the record. Challenges of
those types again implicate the discretionary aspects of the
underlying sentence, not the legal propriety of revoking parole.
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008)
(citations omitted).
Because Appellant’s purported attack on the discretionary aspects of
her parole revocation sentence is not a cognizable claim, it is wholly
frivolous. See id. at 292-93. The sole issue that Appellant could potentially
raise regarding her parole revocation sentence “is whether the trial court
erred, as a matter of law, in revoking [her] parole and committing [her] to a
term of total confinement. In order to support a revocation of parole, the
Commonwealth need only show, by a preponderance of the evidence, that a
parolee violated [her] parole.” Mitchell, 632 A.2d at 936.
While the record before us does not contain details of Appellant’s new
conviction, the Gagnon II hearing transcript confirms that Appellant was
convicted in a new case and sentenced to a term of incarceration of time
served to 23 months. See N.T., 11/28/2018, at 6. The trial court revoked
Appellant’s parole based upon this new conviction and a technical violation.
Because a new conviction is sufficient grounds for the trial court to revoke
parole and recommit Appellant, any claim challenging her parole revocation
is likewise wholly frivolous. Kalichak, 943 A.2d at 293.
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Based upon the foregoing, we agree with counsel that a challenge to
Appellant’s sentences of incarceration following her parole revocations is
frivolous. Moreover, we have conducted “a simple review of the record” and
have found no “arguably meritorious issues that counsel, intentionally or
not, missed or misstated.” Dempster, 187 A.3d at 272. Accordingly, we
affirm the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/19
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