Com. v. Gilmore, B. ( 2014 )

J-S46019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDEN T. GILMORE
Appellant No. 1916 MDA 2013
Appeal from the Judgment of Sentence September 30, 2013
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001071-2004,
CP-22-CR-0001072-2004, CP-22-CR-0001073-2004,
CP-22-CR-0001083-2004, CP-22-CR-0001394-2004
CP-22-CR-0002044-2044
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 21, 2014
Branden T. Gilmore appeals from his judgment of sentence imposed in
the Court of Common Pleas of Dauphin County after his parole was revoked.
Counsel has filed a petition to withdraw pursuant to Anders, McClendon
and Santiago.1 Upon review, we affirm Gil
[Gilmore] had been on state parole following a period of
incarceration . . . lasting just under five (5) years after pleading
____________________________________________
1
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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guilty [to five counts of robbery2 and one count of escape3].
[Gilmore] had been released for parole on December 3, 2009.
While on parole, [Gilmore] was arrested on October 18, 2011
and charged with two counts of [p]ossession with [i]ntent to
[d]eliver, one count of [c]riminal [u]se of a [c]ommunications
[f]acility, and one count of [u]nlawful [p]ossession of [d]rug
[p]araphernalia. On November 5, 2012, Gilmore entered a plea
of guilty to all charges and, on the same day, was sentenced to a
term of twelve (12) to twenty-
followed by two years of special probation.
On September 30, 2013, [Gilmore] came before [the trial court]
for the purpose of a revocation [of parole] hearing . . . based on
the allegation that his [subsequent] conviction . . . was a
violation of his parole. [Gilmore] was represented by counsel
during his revocation hearing and did not contest that his
conviction qualified as a parole violation. After the
court, the court] found that [Gilmore] had violated his parole
and therefore it should be revoked at all dockets. Gilmore was
years of special probation].
Trial Court Opinion, 2/5/14, at 1-2.
Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005). In order to withdraw pursuant to Anders and McClendon, counsel
must: (1) petition the Court for leave to withdraw, certifying that after a
thorough review of the record, counsel has concluded the issues to be raised
____________________________________________
2
18 Pa.C.S. § 3701(a)(1)(ii).
3
18 Pa.C.S. § 5121(d)(2).
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are wholly frivolous; (2) file a brief referring to anything in the record that
might arguably support the appeal; and (3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points that the appellant deems worthy of
review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.
2001). In Santiago, the Pennsylvania Supreme Court altered the
requirements for withdrawal under Anders to mandate the inclusion of a
statement detailing reasons for concluding the appeal is frivolous.
s that she has made an examination
of the record and concluded the appeal is wholly frivolous. Counsel supplied
proceed pro se, or with newly-retained counsel, and to raise any other issues
he believes might have merit.4 Counsel also has submitted a brief, setting
out in neutral form a single issue of arguable merit. Finally, counsel has
explained, pursuant to the dictates of Santiago, why she believes the issue
to be frivolous. See Anders Brief, at 11-12. Thus, counsel has
substantially complied with the requirements of Anders, McClendon and
Santiago.
Counsel having satisfied the procedural requirements for withdrawal,
this Court must conduct its own review of the proceedings and render an
____________________________________________
4
Gilmore has not submitted any additional issues on appeal.
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independent judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). In her
Anders brief, counsel raises the following issue: Whether Gilmore was
denied due process and whether his right to a prompt hearing was violated
where his revocation hearing was scheduled more than ten months after he
pled guilty to the charges that were the basis for his revocation.
he
party must make a timely
and specific objection at the appropriate stage of the proceedings before the
trial court. Failure to timely object to a basic and fundamental error will
result in waiver of that issue Thompson v. Thompson, 963 A.2d 474,
475-476 (Pa. Super. 2008). This Court has reviewed the transcript of the
revocation hearing that took place before the trial court, and it is clear that
Gilmore did not object to the delay of which he now complains. See
Commonwealth v. Marchesano, 502 A.2d 597 (Pa. Super. 1985), order
vacated on other grounds, Commonwealth v. Marchesano, 544 A.2d
1333 (Pa. 1988). (speedy hearing claims must be raised and preserved at
revocation hearing, or be deemed waived). As such, we would normally
conclude that Gilmore has waived his right to raise this issue on appeal.
However, Anders requires review of issues otherwise waived on appeal.
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009), citing
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Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001).
Accordingly, we will
Whenever a defendant has been sentenced to probation or
intermediate punishment, or placed on parole, the judge shall
not revoke such probation, intermediate punishment, or parole
as allowed by law unless there has been: (1) a hearing held as
speedily as possible at which the defendant is present and
represented by counsel; and (2) a finding of record that the
defendant violated a condition of probation, intermediate
punishment, or parole.
Pa.R.C.P. 708(B)(1)-(2).
require a hearing within a reasonable time. Rule 708 does not
establish a presumptive period in which the Commonwealth must
revoke probation; but instead, the question is whether the delay
was reasonable under the circumstances of the specific case and
whether the appellant was prejudiced by the delay. In
evaluating the reasonableness of a delay, the court examines
three factors: the length of the delay; the reasons for the delay;
and the prejudice resulting to the defendant from the delay.
Commonwealth v. Christmas, 995 A.2d 1259, 1262-63 (Pa. Super.
2010). Additionally, although one specific purpose for requiring a prompt
revocation hearing is to prevent unnecessary restraint of personal liberty, if
a defendant is already incarcerated on the charges that triggered the
probation revocation, he cannot claim the delay in holding his revocation
Id. at 1263-64.
In the instant case, Gilmore pled guilty to the new charges that served
as the basis for the revocation of his parole on December 12, 2012. The
years of special probation. On September 13, 2013, when the revocation
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hearing took place, Gilmore was still incarcerated on those charges.
Therefore, Gilmore was not prejudiced due to the delay of ten months
between the entry of his guilty plea and the revocation hearing.
Judgment of sentence affirmed; petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
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