Com. v. Jones, L. ( 2014 )

J-S59019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LOUSEVEJO JONES
Appellant No. 3095 EDA 2013
Appeal from the Judgment of Sentence October 8, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001021-2011
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2014
Lousevejo Jones appeals from the judgment of sentence imposed in
the Court of Common Pleas of Delaware County after he stipulated to having
violated his parole and was resentenced to serve his full back time of 574
Counsel has petitioned this Court to withdraw his
representation of Jones pursuant to Anders, McClendon and Santiago.1
judgment of sentence.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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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On May 3, 2011, Jones entered a negotiated plea before the Honorable
James F. Nilon, Jr., to one count of resisting arrest. He was sentenced to
time served (tw
was convicted of five new crimes in Philadelphia County, including two
counts of burglary and one count each of criminal trespass, criminal mischief
and aggravated assault. On October 8, 2013, Jones appeared before Judge
Nilon for a Gagnon II hearing, at which time he stipulated to the violation
of his parole. Judge Nilon sentenced him to serve his full back time,
amounting to 574 days, consecutive to his Philadelphia County sentence for
one count of burglary.
Jones filed a timely notice of appeal on November 6, 2013.
Thereafter, Judge Nilon ordered Jones to file a concise statement of errors
counsel filed a statement of intent to file an Anders brief with this Court,
pursuant to Pa.R.A.P. 1925(c)(4).
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
are wholly frivolous; (2) file a brief referring to anything in the record that
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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.
the record and concluded the appeal is wholly frivolous. Counsel supplied
Jones with a copy of
pro se, or with newly-retained counsel, and to raise any other issues he
believes might have merit.2 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 he believes the issue
to be frivolous. See Anders Brief, at 3. Counsel having satisfied the
procedural requirements for withdrawal, we now conduct our own review of
the proceedings and render an independent judgment as to whether the
appeal is, in fact, wholly frivolous. Commonwealth v. Wright, 846 A.2d
730, 736 (Pa. Super. 2004).
____________________________________________
2
Jones has not filed a pro se response or brief.
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In his Anders brief, counsel raises a single point of arguable merit:
that 574 days of imprisonment is excessive under the circumstances.
In Commonwealth v. Mitchell, 632 A.2d 934 (Pa. Super. 1993), this
Court set forth the following, which guides our analysis in the present case:
Clearly, the order revoking parole does not impose a new
sentence; it requires appellant, rather, to serve the balance of a
valid sentence previously imposed. Moreover, such a
recommittal is just that a recommittal and not a sentence.
Further, at a [v]iolation of [p]arole hearing, the court is not free
to give a new sentence. 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.
Therefore, an appellant contesting a revocation of parole need
not comply with the provisions of Pa.R.A.P. 2119(f) by first
articulating a substantial question regarding the discretionary
aspects of sentencing. . . . The sole issue on appeal is whether
the trial court erred,
parole and committing him to a term of total confinement.
Id. at 936 (citations and quotation marks omitted).
Here, there is no question that Jones was convicted of new criminal
offenses; indeed, he stipulated to that fact at his Gagnon II hearing. Those
a sufficient basis upon which to revoke parole. See id. As Judge Nilon had
no choice but to recommit Jones to serve the balance of his sentence, see
id., Jones is entitled to no relief.
Judgment of sentence affirmed. Application to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
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