Com. v. Figueroa, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARIO J. FIGUEROA
Appellant No. 1821 EDA 2015
Appeal from the Judgment of Sentence June 12, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000430-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 16, 2015
Mario J. Figueroa appeals from the judgment of sentence entered on
June 12, 2015, in the Court of Common Pleas of Northampton County
following the acceptance of his open guilty plea to the charge of possession
of drug paraphernalia.1 His arrest on the instant charges led to findings of
probation violations (VOP), and incarceration, in both Pennsylvania and New
York.2 Figueroa was sentenced to a term of two to four months
incarceration on the possession of drug paraphernalia charge. In this timely
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1
35 P.S. § 780-113(a)(32) – two empty packages of synthetic marijuana.
The plea agreement was open as to sentencing, but three counts of
possession of synthetic marijuana, § 780-113(a)(16), were nolle prossed as
part of the agreement.
2
Figueroa has not appealed his revocation sentence, and the record in his
Pennsylvania VOP case is not part of this record.
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appeal, Figueroa raises two claims: (1) his sentence is illegal in that he has
not been properly credited for time served, and (2) his sentence subjected
him to double jeopardy. Counsel has filed an Anders3 brief, stating all
issues are frivolous, along with a request to withdraw as counsel. Following
a thorough review of the submissions by the parties, relevant law, and the
certified record, we affirm. We also grant counsel leave to withdraw from
representation.
Before we begin our substantive analysis, we must first review
defense counsel's Anders brief and motion to withdraw. See
Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super.
2007)(en banc ).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief 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.
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3
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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Santiago, 978 A.2d at 361. Counsel also must provide a copy
of the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court's attention in addition to the points raised by counsel in the
Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 353
(Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Bennett, ___ A.3d ___, 2015 Pa. Super. 198, at *1-2
(Pa. Super. 9/17/2015). Our review of the certified records confirms that
counsel has followed the dictates of Anders/Santiago. Additionally, we
note that Figueroa has not filed a pro se response to counsel’s Anders brief.
However, our review of the certified record compels us to make note of
a procedural problem. Following his guilty plea, Figueroa filed a pro se
notice of appeal, despite being represented by counsel. Subsequently, the
trial court ordered Figueroa to file a Pa.R.A.P. 1925(b) statement of matters
complained of on appeal. This notice was forwarded to counsel as well as
Figueroa. Before counsel could respond, Figueroa filed a pro se Rule
1925(b) concise statement and the trial court authored a perfunctory Rule
1925(a) memorandum. This action by the trial court is a violation of the
prohibition against hybrid representation and would require us to remand
this matter. See Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.
1993). However, while still within the 21 days allowed under the order,
counsel filed a concise statement, listing the issues addressed in the Anders
brief. Our review of the record leads us to conclude that it is clear that if we
remanded this matter, counsel would simply refile the same Rule 1925(b)
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statement, the trial court would reissue its memorandum, returning us to
the status quo, having only taxed judicial resources. Accordingly, while we
remind the trial court that when a defendant is represented by counsel, pro
se filings are not to be acted upon, we find counsel has prevented any
prejudice to Figueroa by her actions in filing the court-ordered Rule 1925(b)
statement within the 21 day time limit. Therefore, we will address the
merits of this appeal.
The underlying facts of this matter are easily related. On April 14,
2015, State Parole Officer Brian Fallock conducted a search of Figueroa’s
home pursuant to the terms of Figueroa’s parole status. Officer Fallock
found three full packages of synthetic marijuana and two empty packages of
synthetic marijuana. Officer Fallock notified the Borough of Wilson Police
Department. Police Officer Dan Dieter arrived and confiscated the evidence,
and submitted it for testing, which confirmed it was a controlled substance.
On September 23, 2014 a summons and complaint was filed against
Figueroa, charging his with the above mentioned crimes. The filing of the
charges acted as a violation of Figueroa’s probation in Pennsylvania and
parole in New York. Prior to pleading guilty in this case, Figueroa served a
four month sentence for violating his Pennsylvania probation and seven
months in New York.
Our standard of review is well settled. “Issues relating to the legality of
a sentence are questions of law.... Our standard of review over such
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questions is de novo and our scope of review is plenary.” Commonwealth
v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (citation omitted).
Figueroa argues both the probation violation sentences and the
sentence for possession of drug paraphernalia are based upon the same
criminal conduct. Accordingly, he argues either he should be credited with
time served in his revocation sentences in the instant sentence or that the
instant sentence represents double punishment and so violates the Fifth
Amendment of the United States Constitution. Neither argument is
persuasive.
We will begin with the double jeopardy claim. Figueroa argues that his
arrest on the instant charge provided the basis for his serving an additional
term of incarceration in both Pennsylvania and New York for violating his
prior sentence in each jurisdiction.4 The Fifth Amendment prohibits any
person from being “subject for the same offense to be twice put in jeopardy
of life or limb.” U.S. Const., Amdt. 5. Accordingly, he argues he cannot be
sentenced again for possessing the drug paraphernalia.
Somewhat surprisingly, this precise argument does not appear to have
been raised previously in Pennsylvania. Nonetheless, federal jurisprudence
makes it clear that the argument is frivolous. United States of America v.
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4
In revocation of probation circumstances, the claim of double jeopardy is
based upon the reimposition of sentence on the original crime. See
Commonwealth v. Hunter, 468 A.2d 505 (Pa. Super. 1983). However,
Figueroa’s revocation sentences are not before us.
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Woods, 127 F.3d 990 (11th Cir. 1997), provides an excellent explanation of
why this argument fails. Although we are not bound by a federal decision
arising from Alabama, we adopt the reasoning.
In Woods, the defendant committed a robbery while on probation for
another unrelated crime. He pled guilty to violating the terms of his
probation and was sentenced to a term of six months’ incarceration. He
then claimed subsequent prosecution for the robbery charge was prohibited
by operation of the double jeopardy clause of the Fifth Amendment to the
United States Constitution. This argument was based on the United States
Supreme Court decision in United States v. Dixon, 509 U.S. 688, 113
S. Ct. 2849, 125 L. Ed. 2d 556 (1993).5
In Dixon, the defendant had been arrested for murder and was
released on bond. While awaiting trial on the murder charge,
Dixon was arrested and indicted for possession with intent to
distribute cocaine. Following an expedited hearing, Dixon was
found guilty of criminal contempt for violating the terms of his
bond release and sentenced to a term of imprisonment.
Reasoning that “criminal contempt, at least in its nonsummary
form, is a crime in every fundamental respect,” 509 U.S. at 699-
700, 113 S. Ct. at 2858 (internal quotation omitted), the
Supreme Court found that a subsequent prosecution for the drug
offense was barred by the Double Jeopardy Clause.
United States v. Woods, 127 F.3d at 992.
The Eleventh Circuit rejected this argument, stating:
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5
Pennsylvania has adopted Dixon in Commonwealth v. Yerby, 679 A.2d
217 (Pa. 1996).
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The Supreme Court's resolution of the claim at issue in Dixon
does not alter our determination that revocation of probation for
commission of a subsequent criminal offense does not constitute
punishment for that criminal offense for purposes of double
jeopardy; rather, revocation of probation constitutes a
modification of the terms of the original sentence and implicates
solely the punishment initially imposed for the offense conduct
underlying that sentence. It is critical to note that, at the time he
was adjudicated guilty with respect to the criminal contempt
charge, the defendant in Dixon had been convicted of no other
offense. Indeed, a prosecution and conviction for criminal
contempt is punishment for the conduct constituting contempt of
court, not for any underlying crime. See United States v.
Soto-Olivas, 44 F.3d 788, 792 (9th Cir.), cert. denied, 515 U.S.
1127, 115 S. Ct. 2289, 132 L. Ed. 2d 290 (1995). In Dixon, there
was no underlying crime to punish. In the instant case, because
Woods' commission of a criminal offense constituted a violation
of the terms of his probation, it consequently provided grounds
for the revocation of his probation. The punishment imposed in
the form of probation revocation, however, was part of his
original sentence and thus constituted punishment for the crime
underlying that sentence. Contrary to Woods' suggestion,
subsequent prosecution for the criminal conduct committed while
on probation constitutes prosecution for an entirely new offense
and is not precluded by the Double Jeopardy Clause.
We note that every other circuit to have addressed this precise
claim in the context of Dixon has reached the same result
reached by our court today. See, e.g., United States v. Wyatt,
102 F.3d 241, 245 (7th Cir. 1996) (“Because revocation of
supervised release amounts only to a modification of the terms
of the defendant's original sentence, and does not constitute
punishment for the revocation-triggering offense, the Double
Jeopardy Clause is not violated by a subsequent prosecution for
that offense.”), cert. denied, 520 U.S. 1149, 117 S. Ct. 1325,
137 L. Ed. 2d 486 (1997); United States v. Woodrup, 86 F.3d
359, 363 (4th Cir.) (“[T]he Double Jeopardy Clause does not
prohibit the government from criminally prosecuting and
punishing an offense which has formed the basis for revocation
of a term of supervised release.”), cert. denied, 519 U.S. 944,
117 S. Ct. 332, 136 L. Ed. 2d 245 (1996); United States v. Soto-
Olivas, 44 F.3d at 791 (“[P]unishment imposed upon revocation
of supervised release is punishment for the original crime, not
punishment for the conduct leading to revocation.”). We similarly
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conclude that revocation of probation constitutes part of a
defendant's original sentence and does not preclude subsequent
prosecution for the criminal conduct that gave rise to the
probation revocation. Accordingly, Woods' conviction for robbery
does not violate the Double Jeopardy Clause.
Id. at 992-93.
The foregoing reasoning is compelling and ably demonstrates the
falsity of Figueroa’s argument. Accordingly, this claim merits no relief.
The reasoning in Woods is equally applicable to Figueroa’s claim that
he is entitled to credit for time served from his probation violation sentences
in his instant sentence.6 Simply put, any punishment imposed for violation
of probation represents punishment for the original crime, not for the
conduct that led to revocation. See Woods, supra, quoting United States
v. Soto-Olivas. This reasoning is also found in Pennsylvania case law:
[T]he imposition of probation defers further sentencing of a
defendant until such time as he violates the conditions placed on
the probation, and when the violation of those conditions occurs,
the resentence of the defendant is an integral element of the
original conditional sentence of probation, not a second
punishment for the same offense.
Commonwealth v. Hunter, 468 A.2d 505, 507 (Pa. Super. 1983).
Accordingly, Figueroa’s two to four month sentence for possession of
drug paraphernalia is separate and distinct from either sentence Figueroa
served pursuant to the revocation of his Pennsylvania or New York
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6
We note that Figueroa was credited with 23 days of time served on the
instant sentence. See Sentencing Form, 6/12/2015.
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probations. As such, he is not entitled to any offset from his current
sentence.
Because we agree with counsel that Figueroa’s claims are frivolous and
he is not entitled to relief, the petition for leave to withdraw as counsel is
granted.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2015
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