Com. v. Moore, J.

J-S64011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
JORDAN MOORE :
: No. 1133 MDA 2017
Appellant
Appeal from the Judgment of Sentence June 14, 2017
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001619-2015
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD*, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 08, 2017
Appellant, Jordan Moore, appeals from the judgment of sentence
entered in the Franklin County Court of Common Pleas following the revocation
of his probation. Additionally, Moore’s counsel of record, Jonathan C. Faust,
Esquire, has filed a petition to withdrawn from representation and a brief
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 Attorney Faust permission to withdraw.
The relevant factual and procedural history is as follows. In December
2015, Moore pled guilty to aggravated assault and received a sentence of nine
to twenty-three months’ imprisonment, followed by a four-year period of
probation. In May 2017, while on parole, Moore incurred new charges. Moore
stipulated to his receipt of the new charges, admitted he violated the terms of
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* Former Justice specially assigned to the Superior Court.
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his parole and probation, and waived his right to a revocation hearing. Based
upon Moore’s stipulation, the revocation court revoked Moore’s parole and
probation. The revocation court resentenced Moore to a term of time-served
to sixty months’ imprisonment in a state correctional facility. This timely
appeal follows.
Prior to addressing the merits of Appellant’s requested appeal, we must
first examine Attorney Faust’s request to withdraw. Attorney Faust has
substantially complied with the mandated procedure for withdrawing as
counsel. See Santiago, 978 A.2d at 361 (articulating Anders requirements);
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing
that counsel must inform client by letter of rights to proceed once counsel
moves to withdraw and append a copy of the letter to the petition) (citation
omitted). Moore has not filed a response to counsel’s petition to withdraw.
Counsel has identified two issues Moore believes entitles him to relief.1
First, Moore contends that the trial court failed to account for Moore’s personal
circumstances when imposing a sentence of time served to sixty months’
imprisonment at a state correctional facility, rather than Franklin County Jail
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1 Through his statement of questions involved, Attorney Faust claims Moore
only challenges the trial court’s decision to impose Moore’s sentence at a state
correctional facility, rather than Franklin County Jail where he would be near
family. See Anders Brief, at 7. However, our review of the Anders brief
reveals Moore also wished to challenge the revocation court’s ability to revoke
probation based upon the filing of new charges. See id., at 11-12. While we
could ordinarily find this issue waived, as it is presented in conjunction with
an application to withdraw, we will address this contention in our
memorandum. See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super.
2009).
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as Moore requested. See Anders Brief, at 7. This raises a challenge to the
discretionary aspects of sentencing.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Attorney Faust has partially complied by preserving Moore’s
claims in a post-sentence motion and filing a timely notice of appeal. However,
Attorney Faust has failed to include a statement of reasons for allowance of
appeal pursuant to Pa.R.A.P. 2119(f) in the Anders brief.
Ordinarily, we would find this sentencing claim waived. See
Commonwealth v. Kiesel, 854 A.2d 530, 532-533 (Pa. Super. 2004)
(finding challenge to discretionary aspect waived for failure to include a Rule
2119(f) statement). However, in the context of Attorney Faust’s petition to
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withdraw, we must address Moore’s contention. See Lilley, 978 A.2d at 998(stating that where counsel files an Anders brief, this Court will review
discretionary aspects of sentencing claims that were not otherwise preserved).
“The imposition of sentence following the revocation of probation is
vested within the sound discretion of the trial court, which, absent an abuse
of discretion, will not be disturbed on appeal.” Commonwealth v. Sierra,
752 A.2d 910, 913 (Pa. Super. 2000) (internal quotations omitted) (citation
omitted). “[T]he trial court is limited only by the maximum sentence that it
could have imposed originally at the time of the probationary sentence.”
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (citation
omitted).
Here, the revocation court imposed a sentence within the maximum
allowable range. Moore does not challenge the length of the sentence, but
rather the trial court’s failure to adequately consider his personal
circumstances in rejecting his preferred place of confinement. Technically, this
claim does not raise a substantial question for our review. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en
banc) (finding claim that a sentencing court failed to adequately consider
certain mitigating factors generally does not raise a substantial question).
In any event, we cannot find any support for Moore’s claim that a
revocation court is required to consider a defendant’s preferred place of
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confinement, Moore fails to recognize that the revocation court considered
exactly that. Here, the revocation court stated:
Mr. Moore, notwithstanding your family issues, and we understand
them, but what is quite clear to the Court, based on everything I
have seen in the summary of your violations, is that you do not
value your family as much as you would purport to today. The
reason I say that is if your family was as important as you make
them out to be today, you would not be doing the things that
you’re doing in the sense of violating supervision. ...
N.T., Revocation Hearing, 6/14/16 at 6. Moore fails to show how the court’s
actions in rejecting his request to stay close to family at Franklin County Jail
constitutes an abuse of discretion. Thus, Moore’s challenge to the
discretionary aspects of his sentence fails.
Finally, counsel indicated Moore wished to challenge the revocation
court’s authority to revoke his probation prior to his conviction on new
charges. See Anders Brief, at 11-12. We initially note that Moore waived this
challenge by failing to raise it during his revocation hearing. See
Commonwealth v. King, 430 A.2d 990, 991 (Pa. Super. 1981)
(“[O]bjections not raised during a counseled revocation proceeding will not be
considered on appeal.”) However, even if Moore properly preserved this issue,
a revocation court may hold a violation of probation hearing following a
probationer’s receipt of new charges, and revoke probation, prior to the
disposition of the new charges. See Commonwealth v. Kates, 305 A.2d 701,
706 (Pa. 1973). Here, Moore cannot claim the trial court incorrectly found he
violated the conditions of his parole and probation because he stipulated to
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these violations. Thus, because the revocation court was entitled to hold a
revocation proceeding prior to the disposition of Moore’s new charges, Moore’s
claim fails.
After examining the issues contained in the Anders brief and
undertaking an independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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