Com. v. Goad, D. ( 2021 )

J-A07030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ALFONCE GOAD :
:
Appellant : No. 633 MDA 2020
Appeal from the Judgment of Sentence Entered March 17, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006149-2017
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED APRIL 21, 2021
Appellant, David Alfonce Goad, appeals from the Judgment of Sentence
entered on March 17, 2020, at the conclusion of his probation violation
hearing. Relevant to our analysis, the court, after finding a technical probation
violation, continued Appellant’s probation and installment payment plan rather
than incarcerating him for his probation violation. With this appeal, Appellant’s
counsel has filed a Petition to Withdraw as Counsel and an Anders1 Brief.
After careful review, we affirm the Judgment of Sentence and grant counsel’s
Petition to Withdraw.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
J-A07030-21
On April 3, 2018, Appellant pleaded guilty to retail theft. 2 The court
sentenced him to two years’ probation and payment of $2,266.25 in fines and
costs. The court placed Appellant on a $25-per-month installment payment
plan. Appellant failed to make payments on multiple occasions, including from
April to September 2019.
On January 9, 2020, the Commonwealth initiated probation revocation
proceedings due to Appellant’s missed payments. The court held a brief
probation violation hearing on March 17, 2020. At the conclusion of the
hearing, the court continued Appellant’s probation and $25-per-month
installment payment plan.3
Appellant pro se filed a timely Notice of Appeal. Both Appellant and the
resentencing court complied with Pa.R.A.P. 1925. On August 24, 2020, this
Court issued an Order remanding Appellant’s case to the resentencing court
to determine his eligibility for court-appointed counsel. The court appointed
counsel on September 24, 2020. On December 15, 2020, counsel filed an
Anders Brief and accompanying Application to Withdraw.
As a preliminary matter, we address counsel’s request to withdraw. For
counsel to withdraw, our Supreme Court has determined that, pursuant to
Anders, counsel must meet the following requirements:
____________________________________________
2 18 Pa.C.S. § 3929(a)(4).
3 The court ordered Appellant to report to the Monetary Compliance Unit to
satisfy his obligations under the installment payment plan.
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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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel has fulfilled the above requirements. Additionally, counsel
confirms that he sent Appellant a copy of the Anders Brief and Petition to
Withdraw, as well as a letter explaining to Appellant that he has the right to
retain new counsel, proceed pro se, or to raise any additional points. See
Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005)
(describing notice requirements).
Having addressed counsel’s technical compliance with Anders, we will
address the substantive issue counsel has raised. In addition, we must
conduct “a simple review of the record to ascertain if there appear on its face
to be arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.
2018) (en banc).
Appellant’s counsel initially asserts that the resentencing court erred by
not inquiring into the willfulness of Appellant’s failure to pay his fines. Anders
Br. at 12-13. Counsel maintains that such a challenge would be frivolous,
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however, because the court continued Appellant’s probation rather than
incarcerating him. Id. After review, we agree that this issue is without merit.
Before a court can revoke or increase conditions of probation, it must
hold a hearing at which it considers “the record of the sentencing proceeding
together with evidence of the conduct of the defendant while on probation.”
42 Pa.C.S. § 9771(d). In the context of a technical violation for failure to pay
fines, the court must find that the defendant willfully failed to pay before
resentencing the defendant to incarceration. Commonwealth v. Eggers, 742
A.2d 174, 175 (Pa. Super. 1999). There is no such requirement, however,
where the court does not revoke or increase the terms of the defendant’s
probation.
In the instant case, at Appellant’s violation hearing, the court, after
finding a technical probation violation, continued Appellant’s probation and
installment payment plan. N.T. Hearing, 3/17/20, at 2-3. It did not revoke or
increase the conditions of Appellant’s probation. Id. Therefore, the court was
not required to find that Appellant willfully failed to pay. As a result, we agree
with counsel that this issue is wholly frivolous.
Additionally, following an independent review of the record, we discern
no arguably meritorious issues that warrant further consideration.
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Accordingly, we grant counsel’s Application to Withdraw and affirm Appellant’s
Judgment of Sentence.4
Application to Withdraw granted; Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/21/2021
____________________________________________
4 Notwithstanding our conclusion that Appellant’s appeal is frivolous, we
remind the court that it has not ruled on Appellant’s Pa.R.Crim.P. 706(D)
Motions filed on July 31, 2019, and January 16, 2020. It is important that the
court promptly resolve these Motions.
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