Com. v. Reddick, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BERNARD REDDICK,
Appellant No. 130 EDA 2016
Appeal from the Judgment of Sentence December 4, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007822-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BERNARD RIDDICK,
Appellant No. 132 EDA 2016
Appeal from the Judgment of Sentence December 4, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007475-2013
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 27, 2016
Appellant, Bernard Reddick, appeals from the judgments of sentence
entered following the violation of his parole and probation in the above-
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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captioned matters. Appellate counsel has filed a petition to withdraw his
representation and a brief pursuant to Anders v. California, 386 U.S. 738(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which
govern a withdrawal from representation on direct appeal.1 We grant
counsel’s petition to withdraw and affirm the judgments of sentence.
We summarize the procedural history of this case as follows. On
February 11, 2014, Appellant entered a plea of guilty to one count of retail
theft at CP-23-CR-0007475-2013. On that date, the trial court sentenced
Appellant to serve a term of incarceration of time served to twenty-three
months. On March 17, 2014, Appellant entered a plea of guilty to one count
of retail theft at CP-23-CR-0007822-2013. On that date, the trial court
sentenced Appellant to serve a term of incarceration of time served to
twenty-three months, followed by three years of probation. Subsequently,
Appellant was arrested on additional charges of retail theft, and a bench
warrant was issued. A Gagnon I hearing was held on November 20, 2015,
and a Gagon II hearing was held on December 4, 2015.2 At the conclusion
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1
We observe that Appellant is referred to as “Bernard Reddick” in one trial
court docket and as “Bernard Riddick” in the second trial court docket. In
his Anders brief, counsel notes that for the sake of consistency, he refers to
Appellant as “Mr. Reddick.”
2
In Commonwealth v. Heilman, 876 A.2d 1021 (Pa. Super. 2005), we
summarized the probation revocation process as follows:
(Footnote Continued Next Page)
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of the Gagnon II hearing, the trial court found Appellant to be in violation
of his parole at CP-23-CR-0007475-2013, revoked his parole, and sentenced
Appellant to his full back time with immediate parole. At CP-23-CR-
0007822-2013, the trial court found Appellant to be in violation of his
parole, revoked his parole, and sentenced him to full back time with
immediate parole. In addition, the trial court found Appellant to be in
violation of his probation at CP-23-CR-0007822-2013, revoked his probation,
and sentenced Appellant to serve a term of incarceration of twelve to thirty-
_______________________
(Footnote Continued)
In Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656,
93 S. Ct. 1756 (1973), the United States Supreme Court held
that a defendant accused of violating the terms of his probation
is entitled to two hearings prior to formal revocation and re-
sentencing.
When a parolee or probationer is detained pending a
revocation hearing, due process requires a
determination at a pre-revocation hearing, a
Gagnon I hearing, that probable cause exists to
believe that a violation has been committed. Where
a finding of probable cause is made, a second, more
comprehensive hearing, a Gagnon II hearing, is
required before a final revocation decision can be
made.
Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super.
2001). The Gagnon II hearing requires two inquiries: (1)
whether the probationer has in fact violated one of the
conditions of his probation, and, if so, (2) should the probationer
“be recommitted to prison or should other steps be taken to
protect society and improve chances of rehabilitation.” Id.(quoting Gagnon, supra at 784).
Heilman, 876 A.2d at 1026-1027.
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six months. Appellant did not file post-sentence motions. This timely
appeal followed the imposition of the new judgments of sentence.
As noted, counsel has filed a petition to withdraw from representation.
Before we address the questions raised on appeal, we must resolve appellate
counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d
1030 (Pa. Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on direct
appeal. The procedural mandates are that 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 brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within the petition
to withdraw, counsel averred that he conducted a conscientious review of
the record and pertinent legal research. Following that review, counsel
concluded that the present appeal is frivolous. Counsel sent Appellant a
copy of the Anders brief and petition to withdraw, as well as a letter, a copy
of which is attached to the petition to withdraw. In the letter, counsel
advised Appellant that he could represent himself or that he could retain
private counsel.
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We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. The brief sets forth the
procedural history of this case and outlines pertinent case authority. We
thus conclude that the procedural and briefing requirements for withdrawal
have been met.
Counsel presents the following issue for our review:
Whether the 12 to 36 months of incarceration imposed in
addition to the back time in these cases is harsh and excessive
under the circumstances and whether the Lower Court provided
adequate reasons for imposing it?
Anders Brief at 2 (italics in original).
Appellant’s sole issue challenges the discretionary aspects of his
sentence. However, Appellant waived any challenges to the discretionary
aspects of his sentence by failing to raise such issue to the trial court.
As this Court clarified in Cartrette, our scope of review following the
revocation of probation is not limited solely to determining the validity of the
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probation revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the time of the
initial sentencing. Rather, it also includes challenges to the discretionary
aspects of the sentence imposed. Specifically, we unequivocally held that
“this Court’s scope of review in an appeal from a revocation sentencing
includes discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034.
Further, as we have long held, the imposition of sentence following the
revocation of probation is vested within the sound discretion of the trial
court, which, absent an abuse of that discretion, will not be disturbed on
appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d
800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
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
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to reconsider and modify sentence, see Pa.R.Crim.P.
[708]; (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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects
of a sentence are generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed. Moury, 992 A.2d at170 (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In
addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must
be filed within ten days of the imposition of sentence following the
revocation of probation. Pa.R.Crim.P. 708(D). As the comment to
Pa.R.Crim.P. 708 explains:
Issues properly preserved at the sentencing proceeding need
not, but may, be raised again in a motion to modify sentence in
order to preserve them for appeal. In deciding whether to move
to modify sentence, counsel must carefully consider whether the
record created at the sentencing proceeding is adequate for
appellate review of the issues, or the issues may be waived.
Pa.R.Crim.P. 708 cmt. Thus, an objection to a discretionary aspect of a
sentence is waived if not raised in a post-sentence motion or during the
sentencing proceedings. See Commonwealth v. Parker, 847 A.2d 745-7-
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(Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was
waived because appellant did not object at sentencing hearing or file post-
sentence motion).
Herein, the first requirement of the four-part test is met because
Appellant brought a timely appeal. However, our review of the certified
record reflects that Appellant waived his challenge to the discretionary
aspects of his sentence by failing to raise the claim either at the sentencing
proceeding or by means of a post-sentence motion. Thus, this issue has not
been properly preserved for appeal, and the record is not adequate to allow
appellate review of Appellant’s claim. Accordingly, we deem this issue to be
waived.
We also have independently reviewed the record in order to determine
whether there are any non-frivolous issues present in this case that
Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.
Super. 2014). Having concluded that there are no meritorious issues, we
grant Appellant’s counsel permission to withdraw, and we affirm the
judgment of sentence.
Petition of counsel to withdraw is granted. Judgments of sentence
affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2016
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