Com. v. Coulter, II, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFERY ERIC COULTER, II :
:
Appellant : No. 1508 MDA 2022
Appeal from the Judgment of Sentence Entered September 28, 2022
In the Court of Common Pleas of Franklin County
Criminal Division at No: CP-28-CR-0001816-2016
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED: AUGUST 23, 2023
Appellant, Jeffrey Eric Coulter, II, appeals from the September 28, 2022
judgment of sentence imposing 9 to 23 months of incarceration for
endangering the welfare of children (“EWOC”) and a concurrent1 60 months
of probation for simple assault. Counsel has filed a brief and petition to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
On September 30, 2016, the Commonwealth charged Appellant with one
count of simple assault and one count of EWOC for beating his three-year-old
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1 Our Sentencing Code permits courts to impose probation and incarceration
“consecutively or concurrently.” 42 Pa.C.S.A. § 9721(a); Commonwealth v.
Simmons, 262 A.3d 512, 523 (Pa. Super. 2021) (en banc).
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stepdaughter with a belt. On December 6, 2021, after many continuances,
Appellant entered an open plea of guilty to both charges. On June 22, 2022,
the trial court sentenced Appellant in absentia after Appellant failed to appear
despite having notice of the sentencing proceeding. The court imposed
concurrent sentences of 60 months of probation, including 24 months of
electronic monitoring. On September 14, 2022—while Appellant’s post-
sentence motion remained pending—Appellant’s probation officer filed a notice
of violation alleging that Appellant failed to seek and maintain employment,
and that he failed to comply with his electronic monitoring schedule. At a
September 28, 2022 violation hearing, Appellant admitted to the violations
and acknowledged he was subject to resentencing. N.T. Hearing, 9/28/22, at
2-3. At the conclusion of the September 28, 2022 hearing, the trial court
revoked Appellant’s probationary sentences and imposed a new sentence as
set forth above. By order of October 14, 2022, the trial court denied the post-
sentence motion Appellant filed in response to the June 22, 2022 sentences.
In an accompanying memorandum, the trial court explained that Appellant’s
ineffective assistance of counsel argument must await collateral review, and
that his post-sentence motion to withdraw his plea lacked merit. Appellant
filed this timely appeal on October 28, 2022.
Before we proceed to the merits, we consider counsel’s Anders filing.
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
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(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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his 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, 879-880 (Pa. Super. 2014)
(some citation omitted).
The record reveals that counsel initially failed to provide this Court with
a copy of his letter to Appellant, advising Appellant of his right to proceed pro
se or with another lawyer. Counsel corrected that deficiency in response to
this Court’s order of March 1, 2023. In other respects, counsel’s filing
complies with Anders and Santiago. We therefore proceed to an
independent review of the record to determine whether the issues addressed
in the Anders brief are frivolous, and whether there are any non-frivolous
issues that counsel neglected. Commonwealth v. Schmidt, 165 A.3d 1002(Pa. Super. 2017).
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The Anders Brief addresses the discretionary aspects of the June 22,
2022 probation sentences and the September 28, 2022 sentence of
incarceration. As noted above, Appellant’s post-sentence challenge to his
June 22, 2022 sentence remained pending as of the revocation hearing and
re-sentencing. His October 28, 2022 notice of appeal challenged both
sentences.
Regarding Appellant’s challenge to the June 22, 2022 sentence, we
consider our Supreme Court’s analysis in Commonwealth v. Foster, 214
A.3d 1240 (Pa. 2019). There, our Supreme Court considered whether an
appeal from a revocation sentence was moot because the sentence was
subsequently revoked again. The appellant in Foster challenged the propriety
of the revocation. The Foster Court explained that “[a] case is moot when
facts that arise after the initiation of the case leave a litigant without a stake
in the outcome of the matter.” Id. at 1245. The Foster Court concluded the
issue before it was not moot because the fact of a prior revocation on the
appellant’s record could have consequences in the event of future probation
violations. Id. Instantly, however, Appellant wishes to challenge the
discretionary aspects of sentences he is no longer serving. Because the June
22, 2022 probationary sentences have been revoked, Appellant has no stake
in the outcome of a challenge to their discretionary aspects. This issue is
moot.
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Next, the Anders brief addresses the trial court’s September 28, 2022
revocation sentence insofar as it sentenced him to incarceration on the EWOC
charge.
When considering an appeal from a sentence imposed
following the revocation of probation, [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).[2] 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. Giliam, 233 A.3d 863, 866–67 (Pa. Super. 2020)
(quotation marks and some citation omitted). Section 9771(c)(3) of the
Sentencing Code permits a revocation sentence of total confinement where,
among other things, it is “essential to vindicate the authority of the court.”
42 Pa.C.S.A. § 9771(c)(3). When the trial court resentences a defendant after
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2 Section 9771(b) provides:
The court may increase the conditions, impose a brief
sanction under section 9771.1 (relating to court-imposed
sanctions for violating probation) or revoke an order of probation
upon proof of the violation of specified conditions of the probation.
Upon revocation the sentencing alternatives available to the court
shall be the same as were available at the time of initial
sentencing, due consideration being given to the time spent
serving the order of probation. The attorney for the
Commonwealth may file notice at any time prior to resentencing
of the Commonwealth's intention to proceed under an applicable
provision of law requiring a mandatory minimum sentence.
42 Pa.C.S.A. § 9771(b).
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revocation of probation, the court must state on the record the reasons for
the sentence imposed. Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa.
Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015). The imposition of
sentence upon revocation rests within the discretion of the trial court. Colon,
102 A.3d at 1043. That challenge must be properly preserved in a post-
sentence motion. Id. at 1042-43. Appellant did not raise any post-sentence
issues on the record orally after the trial court imposed the September 28,
2022 sentences. Nor did Appellant file a timely post-sentence motion to the
September 28, 2022 sentences. As such, no challenge to the discretionary
aspects of the September 28, 2022 sentences is preserved for review. We
further observe that the maximum 23-month sentence of incarceration is
legal, as EWOC, on the facts of this case, was a first-degree misdemeanor.3
The statutory maximum term of imprisonment for a first-degree misdemeanor
is five years. 18 Pa.C.S.A. § 1104(1).
In any event, the trial court explained that the sentence of incarceration
vindicated its authority, as Appellant was noncompliant with several terms of
his probation terms and was uncooperative with the court throughout this
proceeding. N.T. Hearing, 9/28/22, at 17; Trial Court Opinion, 12/14/22, at
7-8.
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3 EWOC is codified at 18 Pa.C.S.A. § 4304. The instant offense occurred in
2016. An amendment to § 4304 effective in 2017 provides for a one-grade
increase if the victim is under six years old.
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Having conducted an independent review of the record, we discern no
potentially meritorious issues available to Appellant on direct review, including
those issues addressed in the Anders Brief. We therefore affirm the judgment
of sentence and grand counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2023
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