Com. v. Hicks, A.

J-S25038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ASHLEY JO HICKS
Appellant No. 1496 WDA 2015
Appeal from the Judgment of Sentence September 8, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000808-2011
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 4, 2016
Appellant Ashley Jo Hicks appeals from the judgment of sentence
entered in the Cambria County Court of Common Pleas on September 8,
2015 following imposition of sentence upon revocation of probation.
Appellant’s counsel filed an Anders1 brief and a petition for leave to
withdraw as counsel. We affirm the judgment of sentence and grant
counsel’s petition to withdraw.
On June 23, 2011, Appellant pled guilty to one count of retail theft2 at
docket CP-11-CR-0000808-2011.3 The retail theft conviction was graded as
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1
Anders v. California, 386 U.S. 738 (1967).
2
18 Pa.C.S. § 3929(a)(1).
3
At the hearing, Appellant also pled guilty to one count of retail theft at
docket CP-11-CR-0000126-2011.
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a third-degree felony because it was a third or subsequent offense. See 18
Pa.C.S. § 3929(b)(1)(iv).
On December 9, 2011, the trial court sentenced Appellant to 84
months’ probation, concurrent to the sentence imposed at docket CP-11-CR-
0000126-2011.4
On September 8, 2015, following a Gagnon II5 hearing, the trial court
revoked Appellant’s probation because Appellant had committed new
offenses while on probation, including retail theft and two counts of
possession of drug paraphernalia.6 N.T., 9/8/2015, at 2, 5-6. The trial court
then sentenced Appellant to 40 to 84 months’ incarceration, with credit for
time served. Appellant was eligible for the RRRI program, and had a RRRI
minimum sentence of 33 months and 10 days’ imprisonment.
Appellant filed a motion for sentence modification, which the trial court
denied on September 21, 2015. Appellant filed a timely notice of appeal.
Counsel filed a statement of intent to file an Anders brief pursuant to
Pennsylvania Rule of Appellate Procedure 1925(c)(4). After the appeal was
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4
At docket CP-11-CR-0000126-2011, the trial court sentenced Appellant to
24 to 84 months’ imprisonment, with credit for time served. Appellant was
found eligible for the Recidivism Risk Reduction Incentive (“RRRI”) program,
and had a RRRI minimum of 18 months’ imprisonment.
5
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656(1973).
6
35 P.S. § 780-113(a)(32).
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docketed, counsel filed an application to withdraw the Rule 1925(c)(4)
statement and file a concise statement of matters complained of on appeal
pursuant to Rule 1925(b). The trial court granted the application. Counsel
filed a Rule 1925(b) statement, and the trial court issued a Rule 1925(a)
opinion.
Counsel filed a petition to withdraw pursuant to Anders and its
Pennsylvania counterpart, Santiago.7 We must address counsel’s petition
before reviewing the merits of Appellant’s underlying issues.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.2007) (en
banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established by the
Pennsylvania Supreme Court in Santiago. The brief must:
(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 must also provide a copy of the
Anders brief to the appellant, together with a letter that advises the
appellant of his or her right to “(1) retain new counsel to pursue the appeal;
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7
Commonwealth v. Santiago, 978 A.2d 349 (Pa.2009).
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(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. Nischan, 928 A.2d 349,
353 (Pa.Super.2007). Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super.2007). “After establishing that the antecedent requirements have
been met, this Court must then make an independent evaluation of the
record to determine whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006) (quoting
Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super.1997)).
Appellant’s counsel filed a petition for leave to withdraw as counsel.
The petition states counsel conscientiously and completely examined the
record and determined in good faith that any appeal would be frivolous.
Petition for Leave to Withdraw as Counsel, at ¶ 3a. Counsel notified
Appellant of the withdrawal request, supplied her with copies of the petition
for leave to withdraw and the Anders brief, and sent Appellant a letter
explaining her right to proceed pro se or with new, privately-retained
counsel to raise any additional points or arguments that Appellant believed
had merit. See Petition for Leave to Withdraw as Counsel at ¶ 3d; Letter to
Appellant. In the Anders brief, counsel provides a summary of the facts
and procedural history of the case, refers to evidence of record that might
arguably support the issues raised on appeal, provides citations to relevant
case law, states his conclusion that the appeal is wholly frivolous, and states
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his reasons for concluding the appeal is frivolous. Accordingly, counsel has
complied with the requirements of Anders and Santiago.
Appellant has not filed a pro se brief or a counseled brief with new,
privately-retained counsel. We, therefore, review this appeal based on the
issues of arguable merit raised in the Anders brief.
Counsel raises the following issues of arguable merit:
I. Did the sentencing court abuse its discretion in revoking
[Appellant’s] special probation where she was convicted of
several new offenses?
II. Was the court’s sentence of 40 to 84 months’
imprisonment for a violation of special probation illegal?
III. Did the sentencing court commit a manifest abuse of
discretion by resentencing [Appellant] to nearly the
maximum allowable sentence for a third-degree felony?
Anders Brief at 7.
The first issue challenges the court’s revocation of Appellant’s
probation. Anders Brief at 14-15. Pursuant to Pennsylvania law, “[t]he
court may revoke an order of probation upon proof of the violation of
specified conditions of the probation.” 42 Pa.C.S. § 9771(b). Here,
Appellant pled guilty to committing crimes while on probation, which
established that she violated conditions of her probation.
The second issue raised in the Anders brief claims the sentence
imposed following the revocation of Appellant’s probation was illegal.
Anders Brief at 15-17. It maintains, because the trial court imposed the
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statutory maximum sentence,8 without specifying the number of days for
which Appellant should receive credit, the sentence was illegal. Id. at 16.
The trial court imposed a sentence of 40 to 84 months’ imprisonment, with
credit for time already served on the sentence.9 The trial court was not
required to calculate the number of days for which Appellant should be
credited. Rather, the Department of Corrections (“DOC”) will calculate the
number of days Appellant served related to the crimes for which she was
sentenced. Allen v. Commonwealth, Dept. of Corrs., 103 A.3d 365, 371-
72 (Pa.Super.2014) (where trial court awarded credit for “any time
previously served on this matter as determined by prisons,” the department
of corrections was required to award such credit). If Appellant disagrees
with the DOC’s calculation, she may challenge the calculation by filing a writ
of mandamus. Id. at 370 (“mandamus is an appropriate remedy to correct
an error in DOC’s computation of maximum and minimum dates of
confinement where the sentencing order clearly gives the inmate credit for
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8
The Anders brief states the sentence was “nearly the maximum allowable”
and “only two months shy of the maximum allowable sentence.” Anders
Brief at 13, 17. However, the maximum sentence imposed, 84 months, was
the maximum sentence allowed for a third degree felony. 18 Pa.C.S. §
1103(3).
9
Probation violators are entitled to credit for time spent incarcerated prior to
conviction. See Commonwealth v. Johnson, 967 A.2d 1001(Pa.Super.2009).
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the time period in question and DOC’s computation does not comply with
that credit”).
The last issue raised in the Anders brief claims the trial court abused
its discretion when it sentenced Appellant to the statutory maximum
sentence. Anders Brief at 17-18. This challenges the discretionary aspects
of Appellant’s sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011) (quoting Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super.2000)). Before this Court can address a discretionary
challenge, we must engage in a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see
also Allen, 24 A.3d at 1064.
Appellant raised her discretionary aspect of sentence issue in a timely
post-sentence motion and filed a timely notice of appeal. The Anders brief
does not include a statement of reasons relied upon for allowance of appeal
pursuant to Rule 2119(f). The Commonwealth, however, failed to object to
the absence of a Rule 2119(f) statement. “[I]n the absence of any objection
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from the Commonwealth, we are empowered to review claims that otherwise
fail to comply with Rule 2119(f).” Commonwealth v. Gould, 912 A.2d
869, 872 (Pa.Super.2006) (quoting Commonwealth v. Bonds, 890 A.2d
414, 418 (Pa.Super.2005)). Because the Commonwealth failed to object,
and because the issue is raised in an Anders brief, we will address her
claim. See id.; see also Commonwealth v. Zeigler, 112 A.3d 656, 661
(Pa.Super.2015) (noting “[w]here counsel files an Anders brief, this Court
has reviewed the matter even absent a separate Pa.R.A.P. 2119(f)
statement”).
We must next determine whether Appellant’s claim raises a substantial
question. “The determination of whether a particular issue raises a
substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A
substantial question exists where a defendant raises a “plausible argument
that the sentence violates a provision of the sentencing code or is contrary
to the fundamental norms of the sentencing process.” Commonwealth v.
Dodge, 77 A.3d 1263, 1268 (Pa.Super.2013) (quoting Commonwealth v.
Naranjo, 53 A.3d 66, 72 (Pa.Super.2012)).
Appellant claims the trial court abused its discretion in sentencing
Appellant to 40 to 84 months’ imprisonment, the maximum sentence,
without adequately considering Appellant’s rehabilitative needs or the
underlying circumstances of her new offense. Anders Brief at 17-18. This
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raises a substantial question. See Commonwealth v. Samuel, 102 A.3d
1001, 1007 (Pa.Super.2014) (appellant raised substantial question when he
alleged sentence was excessive and court failed to consider mitigating
circumstances). We will, therefore, review Appellant’s discretionary aspects
of sentence claim.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010).
(quoting Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)).
“An abuse of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. (citing Commonwealth v.
Walls, 926 A.2d 957 (Pa.2007)). “A sentencing 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.” Id. at 1283 (citing Commonwealth v. Malovich, 903 A.2d
1247 (Pa.Super.2006)). Further, “[w]here pre-sentence reports exist, we
shall . . . presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa.Super.2014) (quoting Commonwealth v.
Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988)).
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Pursuant to Pennsylvania law, when a trial court revokes a sentence of
probation, “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.” 42 Pa.C.S. §
9771(b).10 The court “shall follow the general principle that the sentence
imposed should call for confinement that is consistent with the protection of
the public, the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of the
defendant.” 42 Pa.C.S. § 9721. Moreover, when re-sentencing a defendant
following the revocation of probation, courts “shall consider the record of the
sentencing proceeding together with evidence of the conduct of the
defendant while on probation.” 42 Pa.C.S. § 9771(d).
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10
The statute further provides:
The court shall not impose a sentence of total confinement
upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely
that he will commit another crime if he is not imprisoned;
or
(3) such a sentence is essential to vindicate the authority
of the court.
42 Pa.C.S. § 9771.
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The trial court reviewed the PSI report from the prior sentencing, and
heard testimony that Appellant was convicted of, and sentence for, one
count of retail theft and two counts of possession of drug paraphernalia for
conduct that occurred while she was serving the probation in the current
case. N.T., 9/8/2015, at 2-3.11
At sentencing, the trial court stated:
Based on the information supplied and a review of your
prior PSI and the evidence that you have had some
progress, but have also had some continued issues with
drugs and proper supervision, the sentence of December
9, 2011 is vacated and you are sentenced to pay the costs
of prosecution, and serve no less than 40 months nor more
than 84 months at a State Correctional Institution with any
credit on that docket number that might be showing at the
Cambria County Jail.
N.T., 9/8/2015, at 5-6.
The trial court did not abuse its discretion when it sentenced Appellant.
It had Appellant’s PSI report, and, we presume, it considered the
information contained therein. See Antidormi, 84 A.3d at 761. Further,
the trial court considered the crimes Appellant committed while on
probation, as well as the progress Appellant made, and the relapses
Appellant had. The sentence imposed was reasonable and supported by the
record.
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11
Appellant also was sentenced to 10 to 36 months’ imprisonment following
a revocation of parole at another docket. N.T., 9/8/2015, at 3.
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We have conducted a thorough and independent review of the record,
and have found no non-frivolous issues.
Judgment of sentence affirmed. Counsel’s motion to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2016
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