Com. v. Jones, B.

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J-S46005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAIR L. JONES :
:
Appellant : No. 128 EDA 2019
Appeal from the Judgment of Sentence Entered December 6, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000120-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAIR L. JONES :
:
Appellant : No. 129 EDA 2019
Appeal from the Judgment of Sentence Entered December 6, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002804-2017
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 15, 2019
Blair L. Jones appeals from the judgments of sentence imposed on
December 6, 2018 following the revocation of his parole in case No. CP-23-
CR-000120-2017, and revocation of his probation in case No. CP-23-CR-
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* Retired Senior Judge assigned to the Superior Court.
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0002804-2017.1 Appellant’s counsel filed petitions to withdraw from
representation and briefs pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), arguing
that the appeals are wholly frivolous. Appellant has filed a pro se response to
counsel’s petitions to withdraw, challenging the calculation of credit for time
served. We grant counsel’s petitions to withdraw and affirm the judgments of
sentence.
After pleading guilty to simple and aggravated assault at case No. 120-
2017, the trial court sentenced Appellant to not less than time served nor
more than twenty-three months of incarceration. Following his later guilty plea
to simple assault at case No. 2804-2017, the trial court sentenced Appellant
to two years of probation consecutive to the sentence at case No. 120-2017.
The court also found Appellant in violation of his parole at case 120-2017 and
reimposed 495 days of back time.
While on parole in No. 120-2017 and serving his probation in No. 2804-
2017, Appellant cut off his GPS ankle monitor and left the area, violating his
parole and probation. The trial court held a Gagnon II2 hearing in both cases,
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1We have sua sponte consolidated Appellant’s appeals at 128 EDA 2019 and
129 EDA 2019.
2 Referencing Gagnon v. Scarpelli, 411 U.S. 778 (1973). “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,
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and found Appellant in violation. The court recommitted Appellant to serve
117 days of incarceration (his full back time) in No. 120-2017, and imposed a
consecutive sentence of not less than one nor more than two years of
incarceration at No. 2804-2017. Appellant filed no post-sentence motions, but
filed timely notices of appeal.
In response to the trial court’s orders to file a concise statement of
errors complained of on appeal, Appellate counsel filed statements of intent
to file an Anders brief. Counsel filed Anders briefs and applications to
withdraw as counsel in both appeals. Appellant filed pro se responses to the
Anders briefs.
When presented with an Anders brief, this Court may not
review the merits of the underlying issues without first passing on
the request to withdraw. Before counsel is permitted to withdraw,
he or she must meet the following requirements.
First, counsel must petition the court for leave to withdraw
and state that after making a conscientious examination of the
record, he has determined that the appeal is frivolous; second, he
must file a brief referring to any issues in the record of arguable
merit; and third, he must furnish a copy of the brief to the
defendant and advise him of his right to retain new counsel or to
himself raise any additional points he deems worth of the Superior
Court’s attention.
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016)
(citations, formatting, and footnote omitted).
The Anders brief must
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a Gagnon II hearing, is required before a final revocation decision can be
made.” Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000).
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(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.
In the instant cases, counsel has submitted to this Court Anders briefs
in which he summarized the history of the case, referred to issues in the record
that he believed arguably supported the appeal, and set forth his conclusion
that the appeal is wholly frivolous, along with citation to supporting authority.
Counsel has also provided copies of letters that he sent to Appellant informing
him of his right to retain new counsel or to proceed pro se, to raise any points
he deems worthy of this Court’s consideration. Accordingly, we conclude that
counsel has complied with the requirements of Anders and Santiago.
Therefore, we turn to the issue raised in the Anders briefs and make an
independent determination as to whether the appeal is, in fact, “wholly
frivolous.” Bynum-Hamilton, 135 A.3d at 184 (citation omitted).
The Anders briefs raise the following question, applicable to both cases:
Whether the lengthy term of incarceration imposed herein is harsh
and excessive under the circumstances due to [Appellant’s]
inability to pay the fines and find an affordable place to live due
to personal problems, threats of violence from individuals in his
home city and onerous financial conditions under circumstances
making it impossible for him to obtain employment.
Anders Briefs, at 3 (unnecessary capitalization omitted).
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The claim raised in the Anders brief challenges the discretionary
aspects of Appellant’s sentences. Initially, we note that because one of
Appellant’s sentences involves parole revocation, and the other revocation of
probation, different legal principles apply, thus we consider each sentence
individually.
In case No. 120-2017, where Appellant was recommitted to serve the
remaining 117 days of back time, the Anders brief claims sentence was harsh
and excessive. This is not a proper argument following a parole revocation.
See Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008).
Clearly, the order revoking parole does not impose a new
sentence; it requires appellant, rather, to serve the balance of a
valid sentence previously imposed. Moreover, such a recommittal
is just that—a recommittal and not a sentence. Further, at a
Violation of Parole hearing, the court is not free to give a new
sentence. The power of the court after a finding of violation of
parole in cases not under the control of the State Board of Parole
is to recommit to jail. There is no authority for giving a new
sentence with a minimum and maximum. Therefore, an appellant
contesting a revocation of parole need not comply with the
provisions of Pa.R.A.P. 2119(f) by first articulating a substantial
question regarding the discretionary aspects of sentencing. The
sole issue on appeal is whether the trial court erred, as a matter
of law, in revoking appellant’s parole and committing him to a
term of total confinement.
Commonwealth v. Galletta, 864 A.2d 532, 538-39 (Pa. Super. 2004)
(citations, ellipses, and quotation marks omitted). “A defendant appealing
recommitment cannot contend, for example, that the sentence is harsh and
excessive. Such a claim might implicate discretionary sentencing but it is
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improper in a parole-revocation appeal.” Kalichak, 943 A.2d at 291 (citations
omitted).
Here, the Anders brief challenges Appellant’s recommittal as harsh and
excessive. Because such a claim is improper in a parole-revocation appeal, we
conclude that it has no arguable merit.
In case No. 2804-2017, where Appellant was sentenced to not less than
one nor more than two years of incarceration following revocation of his
probation, the Anders brief claims the sentence is harsh and excessive.
Challenges to the discretionary aspects of sentence are not
appealable as of right. Rather, an appellant challenging the
sentencing court’s discretion must invoke this Court’s jurisdiction
by (1) filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth “a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence[;]” and (4) presenting a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).
“[A] written post-sentence motion shall be filed no later than
10 days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1).
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.
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc) (case citations and some quotation marks omitted).
Here, the Anders brief includes a concise statement of reasons for
allowance of appeal of the discretionary aspects of his sentence required by
Pa.R.A.P. 2119(f). However, Appellant neither raised the issue of his sentence
being harsh and excessive with the trial court, nor did he file a post-sentence
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motion to that effect. Consequently, he did not properly preserve this issue
for appeal. See id. Therefore, we conclude this issue has been waived, and
any attempt to raise it would be wholly frivolous. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). We agree with counsel that Appellant’s claim is wholly
frivolous.
Because Appellant has exercised his right to file a pro se response, we
consider it as well. Appellant raises one issue in his pro se response to the
Anders brief.
The issue that I requested Attorney Connors to address was a
simple time credit from Sept 18th, 2018 to December 14th, 2018;
which tabulates to (87) days, or (2) months, (3) weeks, and (5)
days. This time due from my imprisonment on an unrelated simple
assault charge in Berks County, PA Sept 18th, 2018 which was
dismissed Sept 28th 2018 and as a consequence, involves the
legality of my sentence and is cognizable under the PCRA statute.
Pro Se Response, at unnumbered page 2 (some unnecessary capitalization
omitted).
Appellant’s issue challenges the calculation of appropriate time credit by
the Department of Corrections. “A challenge to the Bureau of Correction’s
computations or construction of the terms of sentences imposed is neither a
direct nor even a collateral attack on the sentences imposed[.]”
Commonwealth v. Perry, 563 A.2d 511, 513 (Pa. Super. 1989). The
appropriate forum for a challenge of the calculation of time credit is an original
action in the Commonwealth Court. See Commonwealth v. Heredia, 97
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A.3d 392, 394-95 (Pa. Super. 2014). Accordingly, we conclude that
Appellant’s pro se issue lacks arguable merit.
Our independent review of the record confirms that the trial court did
not err or abuse its discretion when it revoked Appellant’s probation and parole
and recommitted him to confinement. Furthermore, we determine that there
are no other non-frivolous bases for appeal, and these appeals are wholly
frivolous. Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed. Petitions to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/19
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