Com. v. White, A. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
AMAR WHITE
Appellant No. 2515 EDA 2013
Appeal from the Judgment of Sentence July 29, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011687-2011
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 22, 2014
Appellant, Amar White, appeals from the judgment of sentence
entered after his probation was revoked by the Honorable Carolyn H.
Nichols, Court of Common Pleas of Philadelphia County. Additionally,
White’s appointed counsel, the Defender Association of Philadelphia,1 has
filed an application to withdraw as counsel pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 602
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*
Retired Senior Judge assigned to the Superior Court.
1
Karl Baker, Esquire, Owen W. Larrabee, Esquire, and Ellen T. Greenlee,
Esquire of the Defender Association of Philadelphia have all entered
appearances on behalf of White in this Court. However, Victor Rauch,
Esquire, of the Defender Association of Philadelphia has executed most of
the pertinent documents filed pursuant to the petition to withdraw. For ease
of discussion, we will treat the Defender Association of Philadelphia as the
petitioning attorney.
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Pa. 159, 978 A.2d 349 (2009). After careful review, we affirm White’s
judgment of sentence and grant counsel’s petition to withdraw.
White pled guilty to one count of possession of narcotics with intent to
deliver. The trial court sentenced White to a term of incarceration of eleven
and one half months to twenty-three months, to be followed by a two-year
period of probation. The trial court granted White immediate parole
pursuant to time already served.
Four months later, White was brought before Judge Nichols again on
allegations that he had violated his probation. At the hearing, White
admitted that he had a drug problem, and requested that he be permitted to
attend drug treatment. Judge Nichols lifted White’s detainer, but found him
in violation. Judge Nichols imposed a new sentence, which increased the
probationary period to four years.
As noted, the Defender Association of Philadelphia has requested to
withdraw and has submitted an Anders brief in support thereof contending
that Appellant’s appeal is frivolous. The Supreme Court of Pennsylvania has
articulated the procedure to be followed when court-appointed counsel seeks
to withdraw from representing an appellant on direct appeal:
[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
arguably believes 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
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law, and/or statutes on point that have led to the conclusion that
the appeal is frivolous.
Commonwealth v. Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 361
(2009).
We note that the Defender Association of Philadelphia has complied
with the technical requirements of Anders as articulated in Santiago.
Additionally, the Defender Association of Philadelphia confirms that it sent a
copy of the Anders brief to White as well as a letter explaining to White that
he has the right to proceed pro se or the right to retain new counsel. A copy
of the letter is appended to the Defender Association of Philadelphia’s
petition, as required by this Court’s decision in Commonwealth v.
Millisock, 873 A.2d 748 (Pa. Super. 2005), in which we held that “to
facilitate appellate review, … counsel must attach as an exhibit to the
petition to withdraw filed with this Court a copy of the letter sent to
counsel’s client giving notice of the client’s rights.” Id. at 749 (emphasis in
original).
We will now proceed to examine the issue counsel set forth in the
Anders brief.2 Counsel raises only one issue for our review. White
contends that the sentence imposed by the trial court was excessive.
On appeal from a judgment of sentence following the revocation of
probation
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2
White has not filed a response to the Defender Association of Philadelphia’s
petition to withdraw.
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[o]ur review is limited to determining the validity of the
probation revocation proceedings and the authority of the
sentencing court to consider the same sentencing alternatives
that it had at the time of the initial sentencing. 42 Pa.C.S.A. §
9771(b).
Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).
“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) (citation omitted). A court may revoke an order of probation upon
proof of the violation of specified conditions of the probation. See
Commonwealth v. Infante, 585 Pa. 408, 420, 888 A.2d 783, 791 (2005).
“A probation violation is established whenever it is shown that the conduct of
the probationer indicates the probation has proven to have been an
ineffective vehicle to accomplish rehabilitation and not sufficient to deter
against future antisocial conduct.” Id., 585 Pa. at 421, 888 A.2d at 791.
Technical violations are sufficient to trigger revocation. See
Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000).
As noted above, White contends that the addition of time to his
probationary sentence is excessive. This claim raises a challenge to the
discretionary aspects of the sentence imposed. See Commonwealth v.
Hornaman, 920 A.2d 1282, 1284 (Pa. Super. 2007).
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“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274. “First, an appellant must set forth in his brief a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Id.“Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
Id. That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Tirado, 870 A.2d at
365. We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.3 See id. “Our inquiry must focus on
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3
Rule 2119 provides the following, in pertinent part:
…
(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal matter
shall set forth in his brief a concise statement of the reasons relied
(Footnote Continued Next Page)
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the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id.In the present case, White’s appellate brief contains the requisite Rule
2119(f) concise statement, and, as such, is in technical compliance with the
requirements to challenge the discretionary aspects of a sentence. White
argues in his Rule 2119(f) statement that the sentence imposed by the trial
court was “excessive.” Appellant’s Brief at 6. It is well-settled that a generic
claim that a sentence is excessive does not raise a substantial question for
our review. See, e.g., Commonwealth v. Christine, 78 A.3d 1, 10 (Pa.
Super. 2013). Additionally, White fails to point to any sentencing factors the
lower court allegedly failed to take into consideration, or otherwise detail the
manner in which the court purportedly violated the sentencing code.
Accordingly, White fails to raise a substantial question for our review and his
challenge to the discretionary aspects of his sentence is without merit. See
Tirado; McAfee.
_______________________
(Footnote Continued)
upon for allowance of appeal with respect to the discretionary aspects
of a sentence. The statement shall immediately precede the argument
on the merits with respect to the discretionary aspects of sentence.
Pa.R.A.P., Rule 2119(f), 42 PA.CONS.STAT.ANN.
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After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel is
granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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