Com. v. Roberts, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER ROBERTS :
:
Appellant : No. 1347 MDA 2022
Appeal from the Judgment of Sentence Entered August 22, 2022
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004840-2018
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 15, 2023
Christopher Roberts (“Roberts”) appeals from the judgment of sentence
imposed following the revocation of his probation. Additionally, Roberts’s
counsel (“Counsel”) has filed a petition to withdraw and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). We grant Counsel’s petition to
withdraw and affirm.
The relevant factual and procedural history of this case is as follows.
Following allegations that, in August 2018, Roberts took his boyfriend’s dog
and then cut and stabbed it to death, the Commonwealth charged Roberts
with burglary, theft by unlawful taking, and aggravated cruelty to animals.1
See Criminal Complaint, 9/10/18; see also Information, 11/26/18. In
December 2018, Roberts pleaded guilty to all three offenses. See Guilty Plea,
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1 See 18 Pa.C.S.A. §§ 3502(a)(2), 3921(a), and 5534(a)(1).
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12/4/18. The trial court sentenced Roberts to, inter alia, eleven-and-a-half to
twenty-three months of incarceration for the burglary, and five years of
consecutive probation for the aggravated cruelty to animals conviction. See
Disposition Sheet, 1/9/19.2 Roberts’s sentence also included, among other
things, the following conditions: he was prohibited from residing “in any home
that has [an] animal”; and he was required to continue with mental health
treatment and medication. See id.
Following sentencing, Roberts violated the conditions of his parole by,
inter alia, drinking alcohol while under the age of twenty-one and being
convicted of a new criminal offense, i.e., accidents involving damage,
stemming from a car accident, the scene of which Roberts left without
providing the requisite information to the other person involved in the
accident. See N.T., 7/21/20, at 3, 5. The violation-of-probation (“VOP”) court
subsequently revoked Roberts’s parole on July 21, 2020 and, inter alia,
ordered him to serve the balance of his sentence. See Disposition Sheet,
7/21/20. The VOP court also reiterated, at that time, the conditions that were
part of Roberts’s sentence, including, among other things, a prohibition on
residing with animals, and a requirement that Roberts continue with his
mental health treatment. See id.
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2 The theft by unlawful taking conviction merged for sentencing purposes with
the burglary conviction. See Disposition Sheet, 1/9/19.
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There was a second VOP brought against Roberts as a result of a home
visit on July 12, 2022. The probation officer testified that at the visit he heard
a dog from outside Roberts’s home, entered, and inquired about the dog.
Though Roberts initially denied there was a dog present, he ultimately
admitted there was a dog in the apartment, and that it had been there for “a
couple of weeks.” See N.T., 8/22/22, at 4-5. The probation officer then
discovered that Roberts had attempted to hide the dog in his locked bedroom
closet behind a dresser. See id. at 4. Roberts explained at the time that the
dog belonged to another male who was staying at the residence. See id. at
5. On August 22, 2022, at the conclusion of the hearing for the VOP, the court
revoked Roberts’s probation and sentenced him to two-and-a-half to seven
years of imprisonment. See Sentencing Order, 8/23/22. Roberts timely
appealed. See Notice of Appeal, 9/21/22. The VOP court ordered Roberts to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). See Order, 9/28/22. Counsel filed a statement pursuant
to Rule 1925(c)(4) indicating his intent to file a brief pursuant to
Anders/Santiago.3
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.
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3 Given Counsel’s indication of his intent to file an Anders/Santiago brief,
the trial court declined to author an opinion pursuant to Rule 1925(a). See
Memorandum Statement in Lieu of Opinion, 11/10/22, unnumbered at *1-*2.
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2010). Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(internal citation omitted). In Santiago, our Supreme Court addressed the
second requirement of Anders, i.e., the contents of an Anders brief, and
required that the brief:
(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. “Once counsel has satisfied the [Anders]
requirements, it is then this Court’s duty to conduct its own review of the trial
court’s proceedings and render an independent judgment as to whether the
appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228 (internal
citation omitted).
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Here, Counsel avers in his petition to withdraw that he has reviewed
the record and determined that no non-frivolous issues exist. See Motion to
Withdraw, 1/12/23, at ¶ 3. Counsel has further averred that he mailed
Roberts a copy of his petition to withdraw along with his Anders brief and a
letter explaining Roberts’s right to retain new counsel, file a pro se brief or
response in this Court, or to raise any additional matters before this Court
himself. See id. at ¶ 5; see also Anders Brief at Ex. C.4 Counsel’s brief
includes a summary of the factual and procedural history of the case, identifies
the issues that could arguably support Roberts’s appeal, and explains his
reasons for concluding the appeal is frivolous, with analysis of the pertinent
facts and applicable law. See Anders Brief at 2-19. As Counsel is in technical
compliance with Anders and Santiago, we proceed to conduct an
independent review to determine whether this appeal is wholly frivolous.
Counsel identifies the following issues for our review: (1) Whether the
probation revocation was legal; and (2) whether the trial court abused its
discretion in sentencing Roberts to two-and-a-half to seven years of
incarceration? See Anders Brief at 10, 16.
Our standard of review for probation revocations is as follows:
When considering an appeal from a sentence imposed
following the revocation of probation, our review is limited to
determining the validity of the probation revocation proceedings
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4 We note that Roberts filed a pro se response on March 20, 2023 to Counsel’s
Anders brief, which this Court addressed in its March 23, 2023 order directing
that this appeal shall proceed. See Order, 3/23/23.
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and the authority of the sentencing court to consider the same
sentencing alternatives that it had at the time of the initial
sentencing.
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. Parson, 259 A.3d 1012, 1019 (Pa. Super. 2021) (internal
citation omitted).
The first issue Counsel identifies is whether the VOP court erred in
revoking Roberts’s probation based on its finding that Roberts violated a
condition of his probation. Initially, we note that a trial court may impose
reasonable conditions of probation. See, e.g., Commonwealth v. Starr,
234 A.3d 755, 761 (Pa. Super. 2020). If a condition of probation is not
followed, section 9771(b) of the Sentencing Code “grants the court the
authority to revoke an order of probation upon proof of the violation of
specified conditions of the probation.” See id. (citing 42 Pa.C.S.A. § 9771(b)).
Our Supreme Court has provided that “the VOP court must find, based on the
preponderance of the evidence, that the probationer violated a specific
condition of probation or committed a new crime to be found in violation.”
Commonwealth v. Foster, 214 A.3d 1240, 1243 (Pa. 2019).
We discern no error in the VOP court’s probation revocation. Here, as
noted above, a condition of Roberts’s probation was that he abstain from
residing with any animals. See Disposition Sheet, 1/9/19; see also
Disposition Sheet, 7/21/20. The VOP court heard evidence from Roberts’s
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probation officer that, during a home visit on July 12, 2022, Roberts was living
with a dog in his apartment, in violation of his condition of supervision, and
attempted to conceal this fact from his probation officer. See N.T., 8/22/22,
at 4-5. Accordingly, the VOP court was authorized to revoke Roberts’s
probation based on his violation of a specific condition of his probation. See
Foster, 214 A.3d at 1243. As such, this issue is wholly frivolous and merits
no relief.
The next issue Counsel identifies is whether the VOP court abused its
discretion in sentencing Roberts to two-and-a-half to seven years of
imprisonment. Regarding a challenge to the discretionary aspects of a
probation-revocation sentence, we have stated:
An appellant wishing to appeal the discretionary aspects of a
probation-revocation sentence has no absolute right to do so but,
rather, must petition this Court for permission to do so. Before
this Court can address such a discretionary challenge, an appellant
must invoke this Court’s jurisdiction by establishing that (1) the
appeal was timely filed; (2) the challenge was properly preserved
by objecting during the revocation sentencing or in a post-
sentence motion; (3) his or her brief includes a concise statement
of the reasons relied upon for allowance of appeal of the
discretionary aspects of the sentence pursuant to Pa.R.A.P.
2119(f); and (4) the concise statement raises a substantial
question that the sentence is inappropriate under the Sentencing
Code.
Starr, 234 A.3d at 759 (internal citation and quotations omitted). As noted
above, Roberts timely appealed. While Counsel omitted a Rule 2119(f)
statement, this does not preclude our review of this issue in an Anders
context. See Commonwealth. v. Zeigler, 112 A.3d 656, 661 (Pa. Super.
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2015). Further, this Court has noted that “the imposition of a sentence of
total confinement after the revocation of probation for a technical violation,
and not a new criminal offense, implicates the fundamental norms which
underlie the sentencing process,” and thus presents a substantial question.
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010). As
Roberts’s issue presents a substantial question, we next determine whether
he has preserved his challenge to the discretionary aspects of his sentence.
Counsel notes that Roberts waived any discretionary sentencing
challenge because he failed to object to his sentence at the revocation hearing
and, additionally, filed no post-sentence motions challenging the discretionary
aspects of his sentence. See Anders Brief at 17.5 Our review of the record
confirms that Roberts has failed to preserve his challenge to the discretionary
aspects of sentencing. Accordingly, he cannot invoke this Court’s jurisdiction
over this issue. See Starr, 234 A.3d at 759.
However, even if properly preserved, Roberts’s discretionary sentencing
issue would merit no relief. Our standard of review is as follows:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
An abuse of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
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5 The record shows that after the September 21, 2022 filing of his notice of
appeal, Roberts filed an untimely pro se post-sentence motion, which the VOP
court forwarded to his attorney. See Motion, 10/3/22.
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Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014). Upon
revocation, the sentencing alternatives available to the VOP court shall be the
same as were available at the time of initial sentencing, although the court’s
ability to order total confinement following a violation of probation is
statutorily circumscribed by subsection 9771(c). See Starr, 234 A.3d at 761.
Further, “[u]nder 42 Pa.C.S.[A.] § 9771(c), a court may sentence a defendant
to total confinement subsequent to revocation of probation if[, inter alia,] . . .
such a sentence is essential to vindicate the authority of th[e] court.” Crump,
995 A.2d at 1282–83. Additionally,
in all cases where the court resentences an offender following
revocation of probation . . . the court shall make as a part of the
record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed and
failure to comply with these provisions shall be grounds for
vacating the sentence or resentence and resentencing the
defendant. A trial court need not undertake a lengthy discourse
for its reasons for imposing a sentence or specifically reference
the statute in question, but the record as a whole must reflect the
sentencing court’s consideration of the facts of the crime and
character of the offender.
Colon, 102 A.3d at 1044 (internal citations, quotations, and brackets
omitted). Total confinement may be necessary to vindicate the authority of
the court where a defendant demonstrates a “lack of willingness to comply
with . . . multiple court orders entered in [his] case.” Commonwealth v.
McAfee, 849 A.2d 270, 277 (Pa. Super. 2004).
In this case, we note that, while on parole following his original
sentence, Roberts violated the conditions of his supervision by, inter alia,
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drinking while under the age of twenty-one and being convicted of a new
criminal offense, i.e., accidents involving damage. See N.T., 7/21/20, at 3,
5. Following his parole revocation, Roberts later committed the probation
violation sub judice, namely, residing with a dog, which he attempted to
conceal from his probation officer. This condition of supervision stemmed
directly from the nature of Roberts’s underlying convictions, e.g., cruelty to
animals. As the VOP court explained:
. . . [W]ith the underlying background in this case, I’m sure the
primary condition . . . was dealing with possession of any dogs
going forward[,] and [the court] reiterated that at the [first]
revocation [hearing]. [The court] made clear what the
consequences would be for a violation of that[,] . . . [and] here
we are with a dog in [Roberts’s] residence . . ..
****
So, you know, based on the original sentence, what was
reiterated at the revocation . . ., [Roberts’s] probation is revoked.
He’s resentenced to a term of incarceration, the minimum of which
shall be two and a half, the maximum of which shall be seven
years . . ..
N.T., 8/22/22, at 16-17. Based on our review of the foregoing, we conclude
that even if Roberts’s challenge to the discretionary aspects of his sentence
were preserved, the trial court did not abuse its discretion in finding that
Roberts required a sentence of total confinement in order to vindicate the
authority of the court. See McAfee, 849 A.2d at 277.6 Thus, we conclude
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6 We also note that a defendant may also challenge the legality of the sentence
imposed following revocation. See Commonwealth v. Shires, 240 A.3d
(Footnote Continued Next Page)
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the issues identified in this appeal are frivolous, and our independent review
of the record reveals no additional issues of arguable merit. Accordingly, we
grant Counsel’s petition to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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974, 977 (Pa. Super. 2020). It is beyond cavil that Roberts’s cruelty to
animals conviction was a third-degree felony, and, therefore, punishable by
up to seven years of imprisonment. See 18 Pa.C.S.A. §§ 5534(a)(1), (b);
1103(3). A challenge to the legality of Roberts’s sentence would likewise be
wholly frivolous.
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