Com. v. Blango, C. ( 2024 )

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2024 PA Super 282COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CURTIS LEE BLANGO :
:
Appellant : No. 1621 MDA 2023
Appeal from the Judgment of Sentence Entered October 23, 2023
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000503-2003
BEFORE: PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*
OPINION BY PANELLA, P.J.E.: FILED NOVEMBER 22, 2024
Curtis Lee Blango appeals from the judgment of sentence imposed
following the revocation of his probation. Additionally, Blango’s counsel seeks
to withdraw from representation pursuant to Anders v. California, 386 U.S.
738 (1967). We affirm and grant counsel permission to withdraw.
Before we turn to a review of Blango’s appeal, we note with extreme
displeasure the Commonwealth’s failure to file an appellee’s brief. “An appellee
is required to file a brief that at minimum must contain ‘a summary of
argument and the complete argument for appellee.’” Commonwealth v.
Pappas, 845 A.2d 829, 835 (Pa. Super. 2004) (quoting Pa.R.A.P. 2112). In
Pappas, the panel referred to the Commonwealth’s failure to file a proper
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* Former Justice specially assigned to the Superior Court.
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appellee’s brief as “unacceptable.” Id. We echo that opinion and remind the
Commonwealth of its obligation to file an appellee’s brief in future appeals.
In this case, following a jury trial in 2004, Blango was found guilty of a
variety of sex offenses committed against Blango’s minor stepdaughter. After
ordering a presentence report and Megan’s Law assessment, the trial court
sentenced Blango to an aggregate term of 6½ to 20 years’ incarceration,
followed by an aggregate consecutive probationary term of 15 years.
Following post-sentence motions, the court entered a modified sentencing
order, in which it imposed the following specific conditions of probation:
- Defendant shall maintain/obtain full-time employment
- Have an MH/MR evaluation and undergo individual counseling
if recommended
- Undergo sex offender evaluation
- Attend group counseling at a sex offender counseling service
such as T.W. Ponessa Associates
- Undergo medical evaluation and receive pharmacologic
treatment as recommended
- Undergo psychiatric treatment when required
- Undergo maintenance polygraphs during his entire period of
parole
- STD class
- Community service
- No contact with the victim, [] her sister, or his ex-wife, Iris, or
any other family members.
See Sentencing Order, 2/18/04, at 2. Finally, the court requested that the
Pennsylvania Board of Probation and Parole (“the Board”) supervise Blango as
a special parolee and probationer upon his release from state prison. See
Request For Special Probation/Parole Supervision, 2/24/04; see also Request
For Special Probation/Parole Supervision, 5/17/04.
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In August 2023, a notice of alleged violations of probation was filed,
followed by a request for a revocation hearing. At the time, Blango had already
maxed out his incarceration term of his sentence and was serving a five-year
probationary sentence for counts 14 through 16.1 The notice indicates that the
current probationary term was from February 3, 2023 through February 3,
2028. The notice further indicated that Blango was accused of committing the
following violations:
Condition#8: No contact with Michael Thompson,
Natasha Wansley, Brianna Thompson, Lyric Thompson,
Jaylen Thompson or Branden Thompson including
messages, letters, presents, email, or verbal
communication. You are also to maintain a 500 ft distance
from 2644 N. Hollywood St, Philadelphia:
7/17/23-Michael Thomson informed parole staff that the
offender sent text messages to his minor child, and provided
screenshots of these to parole staff. He also reported that they
have witnessed the offender outside of 2644 N. Hollywood St,
Philadelphia.
Condition # 8 (Special Probation) -No contact with
anyone under the age of 18 without permission from
Probation/Parole staff :
7/17/23— The offender sent text messages to a minor child.
Screenshots of these were sent to his Parole Agent.
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1 We note it is unclear from the record when Blango was originally released
from incarceration. It is asserted in certain filings that Blango maxed out the
full twenty years of his sentence in state prison. However, it is also asserted
that he was on parole at some point prior to switching to probation. This would
only be possible if Blango were released from prison prior to the full 20-year
term. As it is undisputed that Blango was on probation at the time of the
alleged violation, this discrepancy does not affect our disposition.
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Notice of Alleged Violations of Probation/Parole/Intermediate Punishment,
8/9/23.
A revocation hearing was held on October 23, 2023. Probation Officer
Curtis Stockdale testified that Blango was living in Philadelphia while being
supervised. See N.T., Revocation Hearing, 10/23/23, at 3. Officer Stockdale
stated Blango had contact with the victim’s family from the original case and
sent text messages to a minor child, in violation of his probation. See id.Screenshots of the text messages were provided to Blango’s state parole
agent. See id.John Lorenz, a state parole agent, stated that Blango had previously
been taken into custody on three separate occasions during parole supervision
for violations related to contacting the same children, making the instant
offense the fourth violation in total. See id. at 3-4. Upon learning of this
information, Officer Stockdale explained that he was changing his original
recommendation of additional state probation to a request for a period of
incarceration. See id. at 4. Agent Lorenz also recommended a revocation with
a period of incarceration. See id.
Officer Stockdale explained that Blango had signed written instructions
on February 10, 2022, outlining the specific rules of no contact with the family
in question, which stated “all their names, to not be within 500 feet of their
residence, and also to have no contact with anyone under the age of 18.” Id.
at 7. Based on the above, the court revoked Blango’s probation on counts 14
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through 16 and resentenced him to a period of incarceration of 1 to 2 years.
Id. All other counts remained the same. Id. This timely appeal followed.
We turn first to counsel’s petition to withdraw. To withdraw pursuant to
Anders, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). With respect to the third requirement of Anders,
that counsel inform the appellant of his or her rights in light of counsel’s
withdrawal, this Court has held that counsel must “attach to their petition to
withdraw a copy of the letter sent to their client advising him or her of their
rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
An Anders brief must comply with the following requirements:
(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). “[I]f counsel’s
petition and brief satisfy Anders, we will then undertake our own review of
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the appeal to determine if it is wholly frivolous.” Commonwealth v. Wrecks,
931 A.2d 717, 721 (Pa. Super. 2007) (brackets added, citation omitted).
We find counsel has substantially complied with the preliminary
requirements set forth in Anders. Counsel filed a petition to withdraw,
certifying he has reviewed the case and determined that Blango’s appeal is
frivolous. Counsel also filed a brief, which includes a summary of the history
and facts of the case, potential issues that could be raised by Blango, and his
assessment of why those issues are meritless, with citations to relevant legal
authority. While a copy of the letter sent to Blango advising him of his rights
is not attached to the petition to withdraw, counsel did attach a copy of the
letter to his Anders brief, filed on the same date. The letter informs Blango
that counsel reviewed the record, found the appeal wholly frivolous, and
advised Blango that he has the right to retain new counsel in pursuit of his
appeal or proceed pro se and that he has the right to submit any additional
issues he believes are meritorious.
Counsel has therefore substantially complied with the requirements of
Anders. Blango has not filed a response. We therefore proceed to review the
issues outlined in the Anders brief, which present potential challenges to the
revocation of probation and the sentence imposed after revocation.
The “[r]evocation 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.”
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Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007). Our
review of a revocation proceeding is limited to determining the validity of the
proceeding, the legality of the judgment of sentence imposed, and the
discretionary aspects of sentencing. See Commonwealth v. Cartrette, 83
A.3d at 1033-35.
“The Commonwealth establishes a probation violation meriting
revocation when it shows, by a preponderance of the evidence, that the
probationer’s conduct violated the terms and conditions of his probation, and
that probation has proven an ineffective rehabilitation tool incapable of
deterring probationer from future antisocial conduct.” Perreault, 930 A.2d at
558 (citation omitted).
In his 1925(b) concise statement, Blango argued the trial court erred in
revoking his probation when the violated condition was invalid because it was
imposed solely by state probation and not the court at the time of sentencing.
Blango further argues the record does not demonstrate the condition is
germane and related to a court-imposed condition.
Our Supreme Court has distinguished between “conditions of probation,”
which are imposed by a trial court, and “conditions of supervision,” which are
imposed by the Board and its agents. See Commonwealth v. Shires, 240
A.3d 974, 977 (Pa. Super. 2020) (citation omitted).
In Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019), our Supreme
Court held the statutory language under Section 9754 must be strictly
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construed to require all specific conditions of probation to be enumerated at
the time of sentencing, holding:
We find the language of the pertinent statutory provisions to be
clear and unambiguous. The law provides a general condition of
probation – that the defendant lead “a law-abiding life,” i.e., that
the defendant refrain from committing another crime. To [e]nsure
that general condition is met, or to assist the defendant in meeting
that general condition, the order must also include certain
“specific conditions” from the list enumerated in section 9754(c).
Only upon the violation of any of the “specified conditions” in the
probation order (general or specific) may a court revoke the
defendant’s probation. In other words, a court may find a
defendant in violation of probation only if the defendant has
violated one of the “specific conditions” of probation included in
the probation order or has committed a new crime. The plain
language of the statute does not allow for any other result.
Foster, 214 A.3d at 1250.
“In Commonwealth v. Elliott, 50 A.3d 1284 (Pa. 2012), … our
Supreme Court analyzed the interplay between the Board’s regulatory
authority set forth in the Prison and Parole Code, specifically 61 Pa.C.S.A. §§
6131 and 6151, and the trial court’s authority to impose a sentence as set
forth in 42 Pa.C.S.A. §§ 9751, 9754 and 9771.” Commonwealth v. Smith,
___ A.3d ___, 2024 WL 4352953 (Pa. Super. filed Oct. 1, 2024). The Elliott
Court explained:
[T]he Board and its agents may impose conditions of supervision
that are germane to, elaborate on, or interpret any conditions of
probation that are imposed by the trial court. This interpretation
gives meaning to all of the statutory provisions relevant to this
case and thus: (1) maintains the sentencing authority solely with
a trial court; (2) permits the Board and its agents to evaluate
probationers on a one-on-one basis to effectuate supervisions; (3)
sustains the ability of the Board to impose conditions of
supervision; and (4) authorizes that a probationer may be
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detained, arrested, and “violated” for failing to comply with either
a condition of probation or conditions of supervision. In summary,
a trial court may impose conditions of probation in a generalized
manner, and the Board or its agents may impose more specific
conditions of supervision pertaining to that probation, so long as
those supervision conditions are in furtherance of the trial court's
conditions of probation.
Elliott, 50 A.3d at 1292.2
The trial court addressed Blango’s arguments as follows:
Whether the sentencing court placed these conditions on the
record at sentencing is unclear. However, his state parole agent
had authority to provide him with conditions of supervision,
including the conditions he violated herein, as well as violated
while on state parole supervision. Additionally, his county
probation officer informed him of these same no contact
conditions. All of these efforts complied with 42 Pa.C.S.A. sections
9754 and 9771, as well as our Supreme Court’s decisions[].
Here, the evidence presented at the time of the revocation
hearing established that [Blango] was aware of the conditions that
he was accused of violating; i.e., that he was to have no contact
with the family in question, that he was not to be within 500 feet
of their residence, and also not to have contact with anyone under
the age of 18. While [Blango] argues that the record does not
demonstrate that the conditions he is said to have violated are
germane to a court-imposed condition, this argument lacks merit.
[Blango] was found guilty of three counts of indecent assault of a
person under 13 years of age and those were the counts at which
his probation was revoked. Because not having contact with the
victim, or the victim's family, as well as not having contact with
anyone under the age of 18, would be inherent to the conditions
of his probation, we fail to see how those conditions would not be
germane. Further, [Blango] acknowledged the conditions by
signing the February 10, 2022 specific rules involving no contact
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2 The defendant in Elliott also was placed on special probation. However,
similar to the case at hand, the condition alleged to have been violated was
not among the enumerated special conditions imposed by operation of law
pertaining to special probation. In both cases, the condition alleged to have
been violated was a specific condition of probation imposed by the trial court.
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and, accordingly, cannot argue that he was not aware of the
conditions being imposed.
Trial Court Opinion, 2/6/24, at 3-4.
Upon review, we conclude the Commonwealth established by a
preponderance of the evidence that Blango violated the terms of his probation.
We agree with the trial court that the probation department had authority to
provide Blango with conditions of supervision. However, this authority is not
unfettered. Instead, the authority of the probation department to impose a
condition of supervision was limited by the conditions of probation imposed by
the trial court. See Elliott, 50 A.3d at 1288; see also Shires, 240 A.3d at
977. Such conditions must be “germane to, elaborate on, or interpret any
conditions of probation that are imposed by the trial court.” See Elliott, 50
A.3d at 1291-92; Shires 240 A.3d at 978.
The record is devoid of a transcript from the original sentencing hearing.
Accordingly, it is unclear whether the court placed certain conditions of
supervision on the record at the time of sentencing. However, the trial court
imposed certain conditions of parole/probation with which Blango was
required to comply and informed him of these requirements by way of its
sentencing order. In its February 2, 2004 sentencing order, the court specified
that upon his release, Blango was to have “[n]o contact with the victim, [],
her sister, or his ex-wife, [] or any other family members.” Order, 2/2/04, at
1. In a February 18, 2004 order in which the court modified its sentence, the
court again specified the exact same condition. See Order, 2/18/04, at 2.
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Blango was accused of violating a condition of supervision that
prevented him from contact with six named individuals. It is clear from the
testimony provided at the revocation hearing that these named individuals are
Blango’s family members. See N.T., Revocation Hearing, 10/23/23, at 3, 6-7.
As the sentencing order established a condition of probation that prohibited
contact with “any other family members,” the probation department’s
condition of supervision that specified certain family members with which
Blango was prevented from having contact was clearly “germane to”
“elaborate[d] on” and “interpret[ed]” the original condition of probation
established by the trial court.
Finally, the evidence presented at the revocation hearing established
that Blango was aware of the conditions he was accused of violating. His state
parole agent had authority to provide Blango with conditions of supervision
including the conditions he violated over the four separate occasions. Blango’s
county probation officer informed Blango of these no contact conditions and
Blango acknowledged notice of these conditions by signing written instructions
on February 10, 2022, outlining the specific rules of no contact with the family
in question. Accordingly, we conclude the trial court did not err in finding a
probation violation occurred.
Next, counsel identifies potential sentencing issues regarding the court’s
imposition of a term of incarceration of 1 to 2 years. Regarding a challenge to
the discretionary aspects of a probation-revocation sentence, we have stated:
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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.
Commonwealth v. Starr, 234 A.3d 755, 759 (Pa. Super. 2020) (citations
and internal quotation marks omitted). As noted above, Blango 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. 2015). However, counsel notes
Blango waived any discretionary sentencing challenge because he failed to file
any post-sentence motion challenging the discretionary aspects of his
sentence. See Anders Brief, at 20. Further, Blango did not object to his
sentence at the revocation hearing. Our review of the record confirms Blango
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.
Even if a challenge to the discretionary aspects of sentence were
preserved, we would find the trial court did not abuse its discretion in finding
that Blango required a sentence of total confinement.
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Once the court concludes a violation occurred and probation was not
effective, the court may resentence the defendant to a total 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.” 42 Pa.C.S.A. § 9771(c); Foster, 214 A.3d at 1251.
It was uncontested at the revocation hearing that the instant violation
was Blango’s fourth violation while being supervised. Based on a clear pattern
of continued violations, the court was within its authority to impose an
incarceration sentence to vindicate its authority. See Commonwealth v.
McAfee, 849 A.2d 270, 277 (Pa. Super. 2004) (stating 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.”).
We conclude 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.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/22/2024
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