Com. v. Crawford, S.

J-S75043-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN C. CRAWFORD,
Appellant No. 1600 EDA 2014
Appeal from the Judgment of Sentence entered April 30, 2014,
in the Court of Common Pleas of Chester County,
Criminal Division, at No(s): CP-15-CR-0003465-2011
BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 08, 2014
Sean Crawford (“Appellant”) appeals from the judgment of sentence
imposed after he violated the conditions of his parole. Appellant’s appointed
counsel seeks to withdraw, citing Anders v. California, 386 U.S. 738
(1967) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
We affirm the judgment of sentence and grant counsel’s petition to
withdraw.
The trial court summarized the pertinent facts and procedural history
as follows:
On August 29, 2011, [Appellant] was charged for an
assault on his then girlfriend, Amanda Hayman (“Ms. Hayman”).
[Appellant] pled guilty to Simple Assault before the Honorable
Phyllis Streitel and was sentenced on November 1, 2011 to 6 to
23 months incarceration. [Appellant] filed a Motion for Parole on
January 9, 2012. [Appellant was released on parole on February
22, 2012]. If [Appellant] had been in compliance with the
conditions of his parole, it would have expired on July 22, 2013.
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On July 21, 2012, Officer David Spigarelli of the West
Goshen Police Department was dispatched to investigate the
report of an assault. Upon arriving at the scene, a female
assault victim, Ms. Hayman, stated to Officer Spigarelli that she
was punched in the face by her fiancé, [Appellant]. Ms. Hayman
was diagnosed with a broken nose. [Appellant] was taken into
custody and charged for a second assault on Ms. Hayman [at
Docket No. 2624-2013].
On July 22, 2012, pursuant to an application for a Bench
Warrant and a Petition for Violation of Probation and Parole, a
Bench Warrant was issued and a detainer was lodged by Chester
County Adult Probation and Parole. The Petition alleged that
[Appellant] had violated his parole by incurring new charges,
failing to pay $1,384.00 in fines and costs, failing to submit to a
drug and alcohol evaluation, failing to complete outpatient
treatment, failing to complete the Domestic Violence Program,
and having criminal contact with Ms. Hayman.
A jury trial on the 2013 case [at Docket No. 2624-2013]
began on January 28, 2014. Ms. Hayman, two independent lay
witnesses, and a medical expert testified. The jury returned a
verdict of “Guilty” on the charge of Simple Assault. ...
Thereafter, the sentencing proceeding [at Docket No. 2624-
2013] and a hearing on the parole violation of the 2011 case
were held [on April 21, 2014 and April 30, 2014]. [O]n April 30,
2014, [a] Violation of Parole Order was issued finding [Appellant
in violation of the conditions of his parole] and [Appellant was
sentenced] to the balance of the maximum term, 16 months and
18 days. [Appellant] was made eligible for parole after serving
six months. This sentence was to run consecutive to the one to
two year state sentence imposed on the 2013 case.
[Appellant] filed a Motion to Modify Sentence immediately
after the sentencing proceeding. [Appellant] argued that the
sentence imposed was excessive and should be reduced. [The
trial court] denied his motion without a hearing on May 9, 2014.
On May 29, 2014, [Appellant] filed his appeal to the sentence
imposed on April 30, 2014 and our denial of his Post-Sentence
Motion on May 9, 2014. [Both Appellant and the trial court have
complied with Pa.R.A.P. 1925(b).]
Trial court opinion, 8/7/14, at 1-3 (footnotes omitted).
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Appellant presents one issue for our review:
Did the [trial] court err when it considered [Appellant’s]
conviction in Case No. CP-15-CR-2624-2013 — which is currently
on Appeal in case No. 1600 EDA 2014 — when deciding to
revoke his parole and to recommit him for the balance of his
maximum sentence.
Anders Brief at 4.
Preliminarily, we note that Appellant’s counsel has filed a brief
pursuant to Anders and its Pennsylvania counterpart, McClendon. See
Anders, 386 U.S. 738; McClendon, 434 A.2d at 1187. Where an
Anders/McClendon brief has been presented, our standard of review
requires counsel seeking permission to withdraw pursuant to Anders to:
(1) petition the court for leave to withdraw stating that after making a
conscientious examination of the record it has been determined that the
appeal would be frivolous; (2) file a brief referring to anything that might
arguably support the appeal, but which does not resemble a “no merit” letter
or amicus curiae brief; and (3) furnish a copy of the brief to the defendant
and advise him of his right to retain new counsel or raise any additional
points that he deems worthy of the court's attention. Commonwealth v.
McBride, 957 A.2d 752, 756 (Pa. Super. 2008). Counsel is required to
submit to this Court “a copy of any letter used by counsel to advise the
appellant of the rights associated with the Anders process.”
Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007).
Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),
appellant’s counsel must state in the Anders brief the reasons for
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concluding that the appeal is frivolous. If these requirements are met, this
Court may then review the record to determine whether we agree with
counsel’s assessment that the appeal is frivolous.
In the instant case, by letter dated September 23, 2014, Appellant’s
counsel notified Appellant of his intent to file an Anders brief and petition to
withdraw with this Court, and informed Appellant of his rights to retain new
counsel and raise additional issues. That same day, Appellant’s counsel filed
an appropriate petition seeking leave to withdraw. Finally, Appellant’s
counsel has submitted an Anders brief to this Court, with a copy provided to
Appellant. Accordingly, the technical requirements of Anders have been
met. We will therefore conduct our own independent examination of the
issues set forth in counsel’s brief to determine if they are frivolous and
whether counsel should be permitted to withdraw.
Appellant asserts that the trial court erred in revoking his probation
and resentencing him to the balance of his maximum sentence. Anders
Brief at 9-10. Specifically, Appellant argues that the trial court improperly
considered his conviction at Docket No. 2524-2013, which is currently on
appeal, when it revoked his parole and resentenced him to serve the balance
of his maximum term.
“The primary concern of probation, as well as parole, is the
rehabilitation and restoration of the individual to a useful life. It is a
suspended sentence of incarceration served upon such lawful terms and
conditions as imposed by the sentencing court.” Commonwealth v.
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Mullins, 918 A.2d 82, 85 (Pa. 2007). “[T]he purposes of a court's parole-
revocation hearing—the revocation court's tasks—are to determine whether
the parolee violated parole and, if so, whether parole remains a viable
means of rehabilitating the defendant and deterring future antisocial
conduct, or whether revocation, and thus recommitment, are in order. The
Commonwealth must prove the violation by a preponderance of the evidence
and, once it does so, the decision to revoke parole is a matter for the court's
discretion. In the exercise of that discretion, a conviction for a new crime is
a legally sufficient basis to revoke parole.” Commonwealth v. Kalichak,
943 A.2d 285, 290-291 (Pa. Super. 2008) (citations omitted). “Following
parole revocation and recommitment, the proper issue on appeal is whether
the revocation court erred, as a matter of law, in confinement.”
Commonwealth v. Snavely, 982 A.2d 1244, 1246 (Pa. Super. 2009)
(citations omitted).
The trial court provided the following rationale for its revocation of
Appellant’s parole:
Alarmingly, in this case, [Appellant’s] criminal violation was his
assault of the same victim he had assaulted in 2011. This time
he broke her nose. It was also significant to the [trial court] that
[Appellant] had failed to complete any of the conditions
originally imposed at the time of the sentencing on the 2011
case. Any of those violations alone would have constituted the
basis for finding [Appellant] had violated his parole. [T]he
totality of the circumstances indicated [Appellant’s] parole had
not been a successful means of rehabilitation.
Trial Court Opinion, 8/7/14, at 4.
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Upon independent review of the record, we find no error in the trial
court’s determination that Appellant violated the conditions of his parole.
The November 11, 2011 sentencing order specifies that Appellant is to
attend an anger management and domestic violence program. Trial Court
Order, 11/11/11. At the parole revocation hearing, the Commonwealth
presented testimony from Appellant’s probation officer that following
Appellant’s release on parole on February 22, 2012, Appellant failed to
complete drug and alcohol treatment, failed to complete a domestic violence
program, in addition to incurring a new conviction for his second assault of
Ms. Hayman. N.T., 4/21/14, at 5. Appellant was afforded opportunities for
rehabilitation and domestic violence counseling, and his failure to comply
with the trial court’s mandates supports the trial court’s decision to revoke
Appellant’s parole. We conclude that the court had sufficient grounds upon
which to revoke Appellant’s parole and recommit him to serve the remaining
back time on his original simple assault charge.
We additionally find no merit to Appellant’s assertion that the trial
court could not consider his 2013 conviction in its decision to revoke his
parole because Appellant has appealed that conviction. In Commonwealth
v. Smith, 534 A.2d 120 (Pa. Super. 1987), we explained “[the]
Pennsylvania Supreme Court [has] found probation and parole revocation
hearings could be held prior to the trial for the subsequent offense.” Smith,
534 A.2d at 121-122 citing Commonwealth v. Kates, 305 A.2d 701 (Pa.
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1973). We reasoned that “[since] revocation may occur prior to trial, we
cannot possibly find merit to [an] argument that revocation proceedings
should not occur until the appeal process [for the subsequent offense] is
complete.” Smith, 534 A.2d at 122. Accordingly, Appellant’s claim fails.
Upon independent review of the record, we agree with counsel that
this appeal is frivolous. We therefore grant counsel’s petition to withdraw
and affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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