Com. v. Jackson, F. ( 2020 )

J-S59033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANCISCO JACKSON :
:
Appellant : No. 1004 EDA 2018
Appeal from the Judgment of Sentence March 9, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010562-2016
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 26, 2020
Francisco Jackson appeals from the judgment of sentence entered
following the revocation of his probation. His counsel filed an Anders1 brief
and a petition to withdraw as counsel. We affirm the judgment of sentence
and grant counsel’s petition to withdraw.
In May 2016, Jackson entered a negotiated guilty plea to one count of
possession with intent to distribute (“PWID”) Xanax and Naloxone.2 Colloquy
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1 Anders v. California, 386 U.S. 738 (1967).
2 “Naloxone is an opioid antagonist that is used to temporarily reverse the
effects of an opioid overdose, namely slowed or stopped breathing.” U.S.
Surgeon General’s Advisory on Naloxone and Opioid Overdose, available at
https://www.hhs.gov/surgeongeneral/priorities/opioids-and-addiction/
naloxone-advisory/index.html (last visited Dec. 19, 2019).
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for Plea of Guilty, filed May 2, 2017.3 The following facts were set forth at the
guilty plea hearing:
On October 6, 2016, Officer John Moison from the narcotics
field unit went to the area of 2312 North Bouvier Street here
in Philadelphia armed with a confidential informant.
That confidential informant went to the location--to that
location. At said location, interacted with the defendant and
engaged in hand-to-hand transaction and returned -- and
turned over four Xanax pills along with cellophane
containing blue and white paper of Suboxone. Those were
placed on a property receipt.
So at some point later that day between the hours of 3:00
and 5:00, Officer Moison went back to that location with the
same confidential informant. That confidential informant
again met with the defendant, purchased 8 Xanax pills at
that point, returned them, and those were placed on a
property receipt.
The very next day on October 7th, Officer Moison went to
that location with backup from the field unit. Officer Moison
called the defendant directly on a number that was provided
to the confidential informant. Officer Moison set up a drug
transaction with the defendant, the defendant exited that
property and was stopped by Officer Cruz. Recovered from
him was an amber pill bottle with 16 Xanax pills, as well as
2 Oxycontin pills and $97.
Officers conducted a search warrant on that location. They
recovered $21 in addition to the $97 that was already
recovered. As well as three more of the Suboxone strips that
were recovered underneath a mattress. All the drugs
matched from both days. All the drugs did test positive for
controlled substances.
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3 The Written Colloquy for Plea stated he was pleading guilty to PWID for
Xanax and Naloxone, and the maximum for the plea was “3YRP.” Colloquy for
Plea of Guilty at 1. He agreed that his lawyer told him the elements of the
crimes charged and that he could go to jail for ten years if convicted. Id. at
2.
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N.T., 5/2/17, at 15-16.
At the sentencing, the Assistant District Attorney stated Jackson pled
guilty to PWID of Xanax, and explained the guideline range was 12 to 18
months:
[ASSISTANT DISTRICT ATTORNEY]: He pled, Your
Honor, to the Xanax and Naloxone. Xanax is a five, not a
seven.
THE COURT: So five, five?
[ASSISTANT DISTRICT ATTORNEY]: Right. So his
guidelines would be 12 to 18, plus or minus 12.
THE COURT: Okay.
N.T., 6/2/17, at 3. The trial court imposed a negotiated sentence of three
years’ probation.
Jackson never reported to probation. N.T., 3/9/18, at 4. In March 2018,
the trial court revoked Jackson’s probation. At the probation revocation
hearing, Jackson’s counsel explained that Jackson’s mother was ill, and he did
not report for fear of being incarcerated and not being able to be with his
mother. N.T., 3/9/18, at 6. Counsel explained that Jackson was working under
the table for a company that cleans and guts houses to support his seven
children. Id. Jackson also spoke, asking that the court give him another
chance. Id. at 7.
When discussing the sentence, defense counsel stated, “[B]ecause its
Xanax PWID, the max is three years[’] incarceration.” Id. at 9. The assistant
district attorney (“ADA”) stated there had been a prior PWID conviction, which
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would increase the maximum sentence. Id. The ADA did not dispute the
characterization of the narcotic involved.
In imposing sentence, the court stated:
Mr. Jackson, unfortunately when you just completely ignore
your sentence you really just don’t get the same sentence
all over again. That’s not how it works.
So you’ve been around the block plenty. Your prior record
score is a five, you got a very sweet deal here. Your
guideline range was for 12 to 18 months on this drug case.
I gave you three years of probation and you don’t even show
up. So honestly, Mr. Jackson, you don’t just get to ignore a
Judge’s sentence and then expect that you’re – there’ll be
no consequence to that. I’m sure you have good reasons,
I’m sorry about your mother’s illness.
Id. at 8. The court sentenced Jackson to six to 12 months’ incarceration
followed by three years’ probation. Jackson filed a timely notice of appeal.
As mentioned above, counsel filed an Anders brief and a petition to
withdraw.
Before we address the merits of Jackson’s appeal, we must first address
counsel’s request to withdraw from representation. See Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc). An Anders brief
that accompanies a request to withdraw 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
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(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel must
also provide a copy of the Anders brief to the appellant, and a letter that
advises the appellant of the right to: “(1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant
deems worthy of the court[’]s attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Orellana, 86 A.3d 877,
880 (Pa.Super. 2014) (quoting Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super. 2007)). If we determine that counsel has satisfied these
requirements, we then conduct “a full examination” of the record “to decide
whether the case is wholly frivolous.” Commonwealth v. Dempsey, 187
A.3d 266, 271 (Pa.Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).
Here, counsel provided a factual and procedural history, with citations
to the record, and referred to things in the record that might arguably support
the appeal. He also set forth his conclusion that the appeal was wholly
frivolous and his reasons for concluding the appeal is frivolous, with citations
to the record and case law. Further, counsel sent a copy of the Anders brief
and petition to withdraw to Jackson and informed him of his right to proceed
pro se or with retained counsel. We thus conclude counsel has complied with
the technical requirements of Anders.
We will now address the issues raised in the Anders brief:
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1. Did the [trial] court err in finding that [Jackson] violated
his probation, thereby justifying the imposition of a new
sentence of incarceration?
2. Was [Jackson’s] sentence legal?
Anders Br. at 3.
We review a judgment of sentence imposed following the revocation of
probation to determine “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.” Commonwealth
v. MacGregor, 912 A.2d 315, 317 (Pa.Super. 2006) (quoting
Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000)).
A trial court may revoke probation “only ‘upon proof of the violation of
specified conditions of the probation.’” Commonwealth v. Foster, 214 A.3d
1240, 1250 (Pa. 2019) (quoting 42 Pa.C.S.A. § 9771(b)) (emphasis deleted).
If the court revokes a defendant’s probation, “it may only resentence the
defendant to a term of incarceration if (1) the defendant was convicted of a
new crime; (2) the defendant’s conduct makes it likely that he or she will
commit a new crime if not incarcerated; or (3) incarceration ‘is essential to
vindicate the authority of the court.’” Id. (quoting 42 Pa.C.S.A. § 9771(c)).
Here, a condition of Jackson’s probation was that he report to his
probation officer. The trial court found that Jackson violated his probation
when he failed to report to probation following his sentencing. Therefore, the
court revoked his probation. Jackson has never claimed that he in fact
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reported. Because Jackson violated a specific condition of his probation, any
challenge to the revocation would be frivolous.
Further, any challenge to the court’s imposition of a term of
incarceration would be frivolous, as the court’s statements on the record show
the court imposed the sentence to vindicate the authority of the court. After
receiving a sentence of probation, Jackson failed to report to his probation
officer. As the court noted “when you just completely ignore your sentence
you really just don't get the same sentence all over again.” N.T., 3/9/18, at
8.
The next issue raised in the Anders brief is whether the court imposed
an illegal sentence. “[U]pon sentencing following a revocation of probation,
the trial court is limited only by the maximum sentence that it could have
imposed originally at the time of the probationary sentence.” MacGregor, 912
A.2d at 317 (quoting Fish, 752 A.2d at 923).
A person convicted of PWID of a “controlled substance or counterfeit
substance classified in Schedule I or II which is a narcotic drug” can be
sentenced to a maximum sentence of 15 years’ imprisonment.” 15 P.S. § 780-
113(f)(1) (footnote omitted). A person convicted of PWID, where the
controlled substance is “[a]ny other controlled substance or counterfeit
substance classified in Schedule I, II, or III,” faces a maximum sentence of
five years’ imprisonment. 35 P.S. § 780-113(f)(2). Where the controlled
substance involved in a PWID conviction is “a controlled substance or
counterfeit substance classified in Schedule IV,” the maximum sentence is
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three years’ imprisonment. 35 P.S. § 780-113(f)(3). Further, “[a]ny person
convicted of a second or subsequent offense under clause (30) of subsection
(a) of section 13 of this act . . . may be imprisoned for a term up to twice the
term otherwise authorized.” 35 P.S. § 780-115(a) (footnote omitted).
The Commonwealth claims that the narcotics at issue were Xanax,
Oxycodone and Suboxone. The Information charged Jackson with drug
charges related to Xanax,4 Oxycodone, and “Buprenorphine and Naloxone,”
also known as Suboxone.5 Xanax and Naloxone were the substances written
on the guilty plea and, at the sentencing hearing, the Commonwealth and the
court discussed that the controlled substance at issue was Xanax. In addition,
at the sentencing for the probation violation, defense counsel stated, without
objection, that the narcotic involved was Xanax. We conclude that the only
substances Jackson pled guilty to possessing were Xanax and Naloxone.
Xanax is a schedule IV controlled substance. Naloxone is not listed as a
controlled substance. If this were Jackson’s first offense, the maximum term
of imprisonment would be three years. 35 P.S. § 780-113(f)(3). However,
Jackson has at least one other conviction for PWID. See Commonwealth v.
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4 The Information listed “Alprazolam.” Alprazolam is the generic name for
Xanax. Drugs.com, available at https://www.drugs.com/alprazolam.html (last
visited Jan. 14, 2020).
5 Although Suboxone contains Naloxone, they are not the same substance.
Suboxone contains Buprenorphine and Naloxone and is used for the treatment
of opiate addictions. Highlights of Prescribing Information, available at
https://www.accessdata.fda.gov/drugsatfda_docs/label/2018/020733s022lbl
.pdf (last visited Jan. 22, 2020). It is a Schedule III Narcotic. Id.
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Jackson, No. CP-51-CR-1106771-1998. Therefore the maximum sentence is
six years’ imprisonment. 35 P.S. § 780-115(a). Accordingly, any claim that
the sentence of six to 12 months’ imprisonment followed by 3 years’ probation
is illegal is frivolous.
We thus agree with counsel that the issues identified in his Anders brief
are wholly frivolous. Our independent review has revealed no non-frivolous
issues. We therefore affirm the judgment of sentence and grant the petition
to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judge Lazarus joins the Memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/20
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