Com. v. Moore, M.

J-S61021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUIS AMIN MOORE :
:
Appellant : No. 1304 EDA 2019
Appeal from the Judgment of Sentence Entered March 20, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003481-2018
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED DECEMBER 13, 2019
Appellant, Marquis Amin Moore, appeals from the judgment of sentence
entered on March 20, 2019, after the trial court found him in violation of his
parole. On appeal, Appellant’s counsel filed a petition to withdraw as counsel
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review,
we grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
We briefly summarize the facts and procedural history of this case as
follows. On May 24, 2018, Appellant was arrested and charged with knowing
and intentional possession of a controlled substance pursuant to 35 P.S.
§ 780-113(a)(16) and possession of drug paraphernalia under 35 P.S.
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* Former Justice specially assigned to the Superior Court.
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§ 780-113(a)(32). See Police Criminal Complaint, 5/24/18. On June 28,
2018, Appellant entered a guilty plea to simple possession and the trial court
sentenced him to three to 23 months’ incarceration. One of the conditions of
Appellant’s sentence required him to complete and follow the
recommendations of Diagnostic Services at the Delaware County jail, including
drug and alcohol evaluations.
On February 11, 2019, Delaware County’s Adult Probation and Parole
Services Department (the department) issued a request for a Gagnon II1
hearing in which it alleged that Appellant engaged in inappropriate behavior
during two sessions of a drug and alcohol program. This conduct included the
use of foul language, aggressive gesturing, stealing supplies, extorting other
participants, and making inappropriate remarks toward instructors. On
February 22, 2019, the department issued a Gagnon II hearing report in
which it recommended that Appellant be held in violation of the terms of his
parole and that he be sentenced to serve his full back time.
The trial court convened a hearing on March 20, 2019 to consider
Appellant’s alleged parole violations.2 At the hearing, Appellant did not
contest his alleged conduct and the trial court found him in violation of his
parole. Consequently, the court sentenced Appellant to 398 days’ back time,
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2 The date on which Appellant was released on parole is not immediately clear
from the record.
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in accordance with the recommendations of the department. In addition, the
court ordered Appellant to undergo a psychiatric evaluation.
Appellant filed a counseled notice of appeal on April 18, 2019.
Thereafter, on April 24, 2019, the court ordered Appellant to file and serve a
concise statement pursuant to Pa.R.A.P. 1925(b). On May 13, 2019, counsel
for Appellant filed a statement pursuant to Pa.R.A.P. 1925(c)(4) declaring that
he intended to file an Anders brief and seek leave to withdraw. The trial court
issued its opinion on June 11, 2019.
Before reaching the merits of the appeal, we must first address the
propriety of counsel's petition to withdraw and Anders brief. We have
previously determined:
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel
must also file an Anders brief setting forth issues that might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court's attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate's brief on the
appellant's behalf). By contrast, if counsel's petition and brief
satisfy Anders, we will then undertake our own review of the
appeal to determine if it is wholly frivolous. If the appeal is
frivolous, we will grant the withdrawal petition and affirm the
judgment of sentence. However, if there are non-frivolous issues,
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we will deny the petition and remand for the filing of an advocate's
brief.
Our Supreme Court has clarified portions of the Anders
procedure:
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.
Santiago, 978 A.2d at 361.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (some
citations omitted).
Upon review, counsel has complied with all of the foregoing
requirements pursuant to Anders and Santiago. Appellant has not
responded. Thus, we proceed to review the issue set forth in counsel’s
Anders brief before conducting an independent review of the record to discern
if there are non-frivolous issues overlooked by counsel. Id.
Counsel for Appellant identifies only a single issue which arguably
supports this appeal. This claim alleges that the trial court imposed an unduly
harsh and excessive sentence in view of the trivial nature of Appellant’s
alleged violations and the trial court imposed a sentence of incarceration
without regard to counsel’s arguments. See Anders Brief at 3. In support of
this claim, counsel asserts that Appellant’s sentence was unduly harsh and
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excessive since “the mitigating circumstances presented in the record far
outweigh[ed] the need to impose the amount of jail time” ordered by the trial
court. Id. at 8.
It is well-settled that discretionary sentencing challenges do not lie in
the context of an appeal from the revocation of parole.
[A] parole revocation does not involve the imposition of a new
sentence. Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa.
Super. 1993). Indeed, there is no authority for a parole-
revocation court to impose a new penalty. Id. Rather, the only
option for a court that decides to revoke parole is to recommit the
defendant to serve the already-imposed, original sentence. Id.
At some point thereafter, the defendant may again be paroled.3
Id.
Therefore, the 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. Mitchell, 632 A.2d at 936, 937. 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. Id. at 937. In the exercise of
that discretion, a conviction for a new crime is a legally sufficient
basis to revoke parole. Commonwealth v. Galletta, 864 A.2d
532, 539 (Pa. Super. 2004).
Following parole revocation and recommitment, the proper issue
on appeal is whether the revocation court erred, as a matter of
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3 Plainly, we are speaking of cases where the authority to grant and revoke
parole is in the hands of the original sentencing court. Such cases occur when
the maximum term of the original sentence involves incarceration of less than
two years. Commonwealth v. Tilghman, 652 A.2d 390, 391 (Pa. Super.
1995). When the sentence actually imposed on a defendant includes a
maximum term of two years or more, the authority to parole rests not with
the sentencing court but with the Pennsylvania Board of Probation and Parole.
Tilghman, 652 A.2d at 391.
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law, in deciding to revoke parole and, therefore, to recommit the
defendant to confinement. Mitchell, 632 A.2d at 936.
Accordingly, an appeal of a parole revocation is not an appeal of
the discretionary aspects of sentence. Id.
As such, a defendant appealing recommitment cannot contend,
for example, that the sentence is harsh and excessive. Galletta,
864 A.2d at 539. Such a claim might implicate discretionary
sentencing but it is improper in a parole-revocation appeal. Id.
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. Commonwealth v. Shimonvich, 858 A.2d 132, 135 (Pa.
Super. 2004). Challenges of those types again implicate the
discretionary aspects of the underlying sentence, not the legal
propriety of revoking parole. Id.
Commonwealth v. Kalichak, 943 A.2d 285, 290-291 (Pa. Super. 2008)
(footnote in original).
The Anders brief argues that the trial court’s sentence was unduly harsh
and excessive given the technical nature of Appellant’s admitted parole
violations and the asserted minimal need for incarceration for the period
designated by the trial court. Since it is well-settled that such challenges are
not cognizable in the context of an appeal from the revocation of parole, it is
clear that Appellant is not entitled to relief on this issue. Finally, we have
conducted an independent review of the entire record as required by Anders
and have not identified any other non-frivolous issues.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/19
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