Com. v. Dunlap, R.

J-S53041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY L. DUNLAP :
:
Appellant : No. 876 EDA 2019
Appeal from the Judgment of Sentence Entered February 12, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005654-2011
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 26, 2019
Appellant Randy L. Dunlap appeals from the judgment of sentence
imposed for a violation of parole (VOP). Appellant’s counsel has filed a petition
to withdraw and an Anders/Santiago1 brief. For the reasons that follow, we
deny counsel’s petition to withdraw and remand for further proceedings
consistent with this memorandum.
On October 27, 2011, Appellant, who was represented by counsel,2
entered a negotiated guilty plea to driving under the influence (DUI)—highest
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
2Appellant was represented by different attorneys from the Delaware County
Public Defender’s Office during his initial plea and sentencing, his revocation
proceedings, and this appeal.
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rate of alcohol (second offense) and fleeing or attempting to elude an officer.3
The trial court imposed the agreed-upon sentence of nine to twenty-three
months’ incarceration followed by two years’ probation.
On November 15, 2016, the trial court found Appellant in violation of his
probation and imposed an aggregate sentence of three to twelve months’
incarceration.
On October 6, 2017, Appellant was arrested and charged with several
offenses in the state of Delaware. On February 12, 2019, the trial court held
a Gagnon II4 hearing, at which Appellant was represented by Attorney Daniel
Finnigan, Esq. (VOP counsel). At the hearing, Appellant stipulated to the
parole violation. See N.T. VOP Hr’g, 2/12/19, at 3. VOP counsel and the
Commonwealth acknowledged that Appellant had 292 days of unserved
backtime. Id. at 4. VOP counsel explained that
[Appellant has] basically got two new arrests in Delaware [state],
which he thinks [are] going to be resolved without prosecution.
He was getting his tools back from his girlfriend’s house and she
doesn’t want to prosecute those cases, but he still has to go to
Chester County for a VOP there and doesn’t want to delay
anything. So, he wants to get back to Delaware as quick as
possible and all he’s asking is that the [trial court], if you impose
[the backtime] sentence, consider granting him immediate parole
once he’s released from custody in Delaware.
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3 75 Pa.C.S. §§ 3802(c) and 3733(a).
4 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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N.T. VOP Hr’g, 2/12/19, at 3. The trial court asked for further clarification,
and VOP counsel reiterated that
[i]f [Appellant is] released before 292 days, he’s just asking the
[trial court] to consider paroling him—stating on your order that
he can be paroled from this case so it doesn’t hold up his release
from Delaware or hold up his incarceration.
Id. at 4. The Commonwealth agreed, and requested that the trial court
impose the sentence here with the understanding that if [VOP
counsel] or someone from his office finds that [Appellant] is
released in Delaware, they can just bring an order granting him
immediate parole at that point on our case.
Id. at 5.
However, instead of recommitting Appellant to serve his full backtime
on the parole violation, the trial court imposed two concurrent sentences of
150 days’ incarceration. Id. at 9. Specifically, the trial court explained:
Here’s what I’d like to do and [Commonwealth], just tell me if I
can do this, first of all, I’d like to give him 150 days, not the 292
and he can get -- if he’s released in Delaware before the 150 is
up, he can get released, but then he’s done. I don’t want him
back here.
Id. at 8 (emphasis added). The trial court reiterated that if Appellant was
released from Delaware state custody before serving the full 150 days, then
he could petition the trial court for immediate parole. Id. If Appellant was
not released in Delaware, the trial court indicated that he would “serve the
150 and you’ll never see me again.” Id. That same day, the trial court issued
an order imposing “full back time of 150 days” on each count. Sentencing
Order, 2/12/19, at 1.
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On March 12, 2019, Appellant filed a timely notice of appeal through his
attorney of record, Patrick J. Connors, Esq. (appointed counsel) of the
Delaware County Public Defender’s Office. Appointed counsel subsequently
filed a statement of intent to file an Anders/Santiago brief, pursuant to
Pa.R.A.P. 1925(c)(4). In its Rule 1925(a) opinion, the trial court declined to
address whether Appellant had any meritorious appellate issues. See Trial
Ct. Op., 5/1/19, at 2. Nevertheless, the trial court noted that Appellant’s
sentence was “significantly less than the two hundred ninety-two days of back
time that was recommended by the Office of Probation and Parole.” Id.
On August 8, 2019, appointed counsel filed an Anders/Santiago brief
and a separate petition to withdraw.5 Appointed counsel’s withdrawal petition
indicates that he sent a copy of the Anders brief to Appellant, along with a
letter advising Appellant of his right to proceed pro se or with new, privately
retained counsel. Appellant has not filed a pro se brief or a counseled brief
with a new attorney.
Appointed counsel’s Anders/Santiago brief identifies the following
issue:
Whether the term of 150 days of incarceration imposed herein is
harsh and excessive under the circumstances due to the
potentially lengthy terms of incarceration which could be imposed
____________________________________________
5 Another attorney from the Delaware County Public Defender’s Office, William
Ruane, Esq., entered his appearance in this case on June 18, 2019. However,
Attorney Patrick J. Connors (appointed counsel) is still listed as lead counsel
for Appellant.
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on [Appellant] for a violation of probation in Chester County and
pending charges in the state of Delaware.
Anders/Santiago Brief at 3 (full capitalization omitted).
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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.
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Only after determining that counsel has satisfied these technical
requirements, may this Court “conduct an independent review of the record
to discern if there are any additional, non-frivolous issues overlooked by
counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citations and footnote omitted); accord Commonwealth v. Yorgey,
188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
Here, appointed counsel has complied with the procedures for seeking
withdrawal by filing a petition to withdraw, sending Appellant a letter
explaining his appellate rights, and supplying Appellant with a copy of the
Anders/Santiago brief. See Goodwin, 928 A.2d at 290. Moreover,
appointed counsel’s Anders/Santiago brief complies with the requirements
of Santiago. Appointed counsel includes a summary of the relevant factual
and procedural history, refers to the portions of the record that could arguably
support Appellant’s claims, and sets forth the conclusion that the appeal is
frivolous. Additionally, appointed counsel explains his reasoning and supports
his rationale with citations to the record and pertinent legal authority.
Accordingly, we conclude that appointed counsel has met the technical
requirements of Anders and Santiago, and we will proceed to address the
issue raised in the Anders/Santiago brief.
The sole issue identified by appointed counsel suggests that the trial
court imposed “a sentence that is harsh and excessive under the
circumstances of his case.” Anders/Santiago Brief at 9. Specifically,
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appointed counsel points to Appellant’s belief that the trial court abused its
discretion when it imposed a backtime sentence “despite the fact that
[Appellant] was already facing outstanding warrants out of Chester County
and the State of Delaware.” Id. at 8. Further, appointed counsel references
Appellant’s claim that “[i]mmediate parole to those detainers was the more
reasonable approach as he was going to remain incarcerated in any event by
one of those other jurisdictions.” Id. Appointed counsel submits that “[a]fter
a full review of the record, there does not appear to be any abuse of discretion
or other error committed by the [trial] court.” Id. at 11.
Generally, when a defendant’s parole is revoked and a defendant is
recommitted to custody, the severity of the sentence is not subject to review.
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008); see
also 42 Pa.C.S. § 9776(e). Following parole revocation, the trial court has
the authority to recommit the defendant to custody. See Commonwealth
v. Mitchell, 632 A.2d 934, 936 (Pa. Super. 1993). However, the trial court
cannot impose a new sentence, as the previously imposed sentence remains
in effect. Id; see also Commonwealth v. Holmes, 933 A.2d 57, 59 n.5
(Pa. 2007) (stating that parole is a “conditional release from imprisonment
which entitles parolee to serve remainder of his term outside the confines of
an institution, if he satisfactorily complies with all terms and conditions
provided in parole order” (citation omitted)). Therefore, “the only option for
a court that decides to revoke parole is to recommit the defendant to serve
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the already-imposed, original sentence. At some point thereafter, the
defendant may again be paroled.” Kalichak, 943 A.2d at 290 (citation
omitted).
In conducting a parole-revocation hearing, the trial court must
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. . . .
Following parole revocation and recommitment, the proper issue
on appeal is whether the revocation court erred, as a matter of
law, in deciding to revoke parole and, therefore, to recommit the
defendant to confinement. Accordingly, an appeal of a parole
revocation is not an appeal of the discretionary aspects of
sentence.
As such, a defendant appealing recommitment cannot contend,
for example, that the sentence is harsh and excessive.
[Commonwealth v. Galletta, 864 A.2d 532, 539 (Pa. Super.
2004)]. Such a claim might implicate discretionary sentencing but
it is improper in a parole-revocation appeal. Similarly, it is
inappropriate for a parole-revocation appellant to challenge the
sentence by arguing that the court failed to consider mitigating
factors or failed to place reasons for sentence on the record.
Challenges of those types again implicate the discretionary
aspects of the underlying sentence, not the legal propriety of
revoking parole.
Id. at 290-91 (some citations omitted); see also Holmes, 933 A.2d at 59
n.5 (stating that although a court can impose a new sentence for a violation
of probation, “a court faced with a parole violation must recommit the parolee
to serve the remainder of the original sentence of imprisonment” (citations
omitted)).
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Here, the issue identified by appointed counsel relates to the
discretionary aspects of Appellant’s sentence. See Galletta, 864 A.2d at 539.
However, as this Court noted in Kalichak, discretionary sentencing claims are
“improper in a parole-revocation appeal.” Kalichak, 943 A.2d at 291 (citing
Galletta, 864 A.2d at 539); see also Holmes, 933 A.2d at 59 n.5. Therefore,
the claim identified by appointed counsel is frivolous.
In conducting our independent review of the record, we must discern
whether “the revocation court erred, as a matter of law, in deciding to revoke
parole and, therefore, to recommit the defendant to confinement.” Kalichak,
943 A.2d at 291. Here, the record confirms that Appellant stipulated to the
parole violation at the revocation hearing. Therefore, the trial court had a
legally sufficient basis to revoke Appellant’s parole. Id.Following revocation, the trial court was required to recommit Appellant
to serve the “already-imposed, original sentence.” Id. However, here, the
trial court imposed a sentence of 150 days’ incarceration and indicated that,
after that time, Appellant would no longer be under the trial court’s
supervision. See N.T. VOP Hr’g, 2/12/19, at 8. Although the trial court had
discretion to release Appellant on parole before he served the balance of his
backtime, the trial court did not have authority to impose a new sentence that
replaced Appellant’s original sentence with a shorter one. See Mitchell, 632
A.2d at 936; see also Kalichak, 943 A.2d at 290–91. By ordering Appellant
to serve 150 days’ incarceration, which effectively vacated the remaining 142
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days of unserved backtime, the trial court imposed an illegal sentence. See
Holmes, 933 A.2d at 59 n.5 (stating that the only sentence available to the
court on the parole violation was the unexpired balance of the defendant’s
original sentence).
In sum, we conclude that the issue identified by appointed counsel is
frivolous. However, our independent review has revealed that the trial court
imposed an illegal sentence. Therefore, we vacate Appellant’s judgment of
sentence and remand for resentencing. On remand, we direct the trial court
to recommit Appellant to serve the remainder of his backtime. At the
resentencing hearing, the trial court also has the option of granting immediate
parole or making Appellant parole eligible before the expiration of his backtime
sentence. See 42 Pa.C.S. § 9776(e). Additionally, we deny appointed
counsel’s petition to withdraw.
Judgment of sentence vacated. Petition to withdraw denied. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/19
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