Com. v. Rodriguez-Reyes, J.

J-S33033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN RODRIGUEZ-REYES
Appellant No. 3097 EDA 2013
Appeal from the Judgment of Sentence of October 7, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0004338-2011
BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014
Appellant Jonathan Rodriguez-Reyes appeals from the judgment of
sentence entered for his violation of parole (VOP) by the Court of Common
nsel has filed a petition
to withdraw, alleging that this appeal is wholly frivolous, and filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). We affirm
and grant the petition to withdraw.
The facts underlying this appeal are undisputed. As recounted by the
VOP court:
On January 17, 2012, [Appellant] received a sentence of
time-served to twenty-three (23) months on a charge of
[c]riminal [t]respass [18 Pa.C.S. § 3503(a)(1)(i)]. [Appellant]
was part of a ruckus at William Allen High School, and when
police arrived and approached [him], he fled inside the home of
a stranger. He pushed past the resident of the home with the
police in pursuit. He was eventually apprehended after a
struggle.
J-S33033-14
Eleven (11) months later, he was charged with multiple
counts of robbery and related offenses. On September 25,
2013, he was sentenced by the Honorable Maria Dantos on five
(5) counts of [r]obbery and one (1) count of [a]ggravated
[a]ssault. The total sentence was not less than ten (10) years
nor more than twenty (20) years in a state correctional
institution.
A parole violation hearing . . . was held before this [c]ourt
on October 7, 2013. [Appellant] conceded the allegations of the
parole violation petition and was remanded to serve the balance
of his sentence in a state correctional institution. Additionally,
the parole violation was ordered to run consecutively with [the
sentence imposed for the robbery and aggravated assault
counts].
contrary to the certificate of service, was not served on this
[c]ourt. As a result, this [c]ourt did not have the opportunity to
review the [m]otion until after being served with the [n]otice of
[a]ppeal. Having done so, it was denied on November 7, 2013.
A [n]otice of [a]ppeal was filed on November 6, 2013.
Pursuant to Pa.R.A.P. 1925(b), this [c]ourt directed [Appellant]
to file a [c]oncise [s]tatement. [Appellant] did so on November
22, 2013, wherein it is alleged that the parole violation should
have been imposed concurrently with the new conviction.
Trial Court Opinion, 11/25/13, at 1-
to serve the parole violation consecutively to his new crimes was not an
Id. at 5.
On appeal, Appellant raises a single argument for our review.
Whether the lower court erred and abused its discretion
when, after determining that [Appellant] had violated conditions
of his parole based upon new convictions, resentenced
[Appellant] to the balance of his original incarceration and
ordered that it run consecutive to the new sentences [Appellant]
was ordered to serve for the new charges.
Anders/Santiago Brief at 7. Differently put, Appellant challenges the VOP
-2-
J-S33033-14
for criminal trespass consecutively with the sentence imposed for the crimes
he committed while on parole.
When presented with an Anders brief, this Court may not review the
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
c Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
that counsel reviewed the record and concluded that the appeal is frivolous.
Furthermore, counsel notified Appellant that he was seeking permission to
withdraw and provided Appellant with copies of the petition to withdraw and
his Anders brief. Counsel also advised Appellant of his right to retain new
counsel, proceed pro se, or raise any additional points he deems worthy of
the procedural requirements of Anders.
-3-
J-S33033-14
Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court
held:
[I]n the Anders brief that accompanies court-appointed
summary of the procedural history and facts, with citations to
the record; (2) refer to anything in the record that counsel
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
he has substantially complied with the briefing requirements of Santiago.
Although in providing a summary of the procedural history and facts, he
arguably failed to cite to the record in his brief, we do not consider such
omission grounds for denying the petition to withdraw. See generally
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007)
complie[d] with Anders
satisfied the minimum requirements of Anders/Santiago.
Once counsel has met his obligati
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
Santiago, 978 A.2d at 355 n.5. Thus,
we now turn to
-4-
J-S33033-14
Preliminarily, we observe:
Unlike a probation revocation, a parole revocation does not
involve the imposition of a new sentence. Indeed, there is no
authority for a parole-revocation court to impose a new penalty.
Rather, the only option for a court that decides to revoke parole
is to recommit the defendant to serve the already-imposed,
original sentence. At some point thereafter, the defendant may
-
revocation hearing 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. The
Commonwealth must prove the violation by a preponderance of
the evidence and, once it does so, the decision to revoke parole
In the exercise of that
discretion, a conviction for a new crime is a legally sufficient
basis to revoke parole.
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.
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.
Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)
(internal citations omitted). Here, as noted above, Appellant is not
to order him to serve the remainder of his previous sentence consecutively
with the new sentence for robbery and aggravated assault. In this regard,
Appellant contends that the consecutive sentence was unreasonable and
unnecessary. Anders/Santiago Brief at 11. Specifically, Appellant
-5-
J-S33033-14
meaningful punishme
Id. He contends the time
added for the remainder of his previous sentence to his sentence for robbery
and aggravated assault was harsh and excessive, because
Id. at 12.
It is well-
Commonwealth v. Dunphy, 20 A.3d 1215,
1220 (Pa. Super. 2011). Rather, where an appellant challenges the
considered as a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
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 to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3) whether
(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)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
-6-
J-S33033-14
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first three requirements of the four-
part Moury test. Appellant filed a timely appeal to this Court, preserved the
issue on appeal through his motion to reconsider the sentence, and included
a Pa.R.A.P. 2119(f) statement in his brief.1 Thus, we must determine only if
advances a colorable argument that the senten
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super.
2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). This
Court does not accept bald assertions of sentencing errors. See
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).
whe
reasons for which the appeal is sought, in contrast to the facts underlying
____________________________________________
1
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary as
-7-
J-S33033-14
Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)
(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation
omitted).
Here, Appellant asserts in his Rule 2119(f) statement
the [VOP court] erred by giving him a consecutive sentence
which was not justif[ied] or support[ed] in any basis of law or
fact. . . . [The VOP court] abused its discretion by imposing the
sentence consecutive to the sentences imposed from the new
charges, such that it resulted in having him serving additional
time in a State Correctional Institute [sic]. . . . The evidence
regarding the length of the sentence[] imposed in the new cases
should have been sufficient to properly punish him and that the
imposing [of] the parole violation consecutive to the new
sentence[] was unreasonable.
Anders/Santiago brief at 10.
conclude that he has failed to raise a substantial question. Here, Appellant
parole violation, which the VOP court imposed consecutively with his
assault. In addressing the existence of a substantial question, this Court has
remarked:
A defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive
sentence; however, a bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a substantial
question. See [] Moury, 992 A.2d [at] 171-
imposition of consecutive, rather than concurrent, sentences
-8-
J-S33033-14
may raise a substantial question in only the most extreme
circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013)
(emphasis added). Thus, under Dodge,
nstead of concurrent, sentences does not
raise a substantial question.2
We have conducted an independent review of the record and
imposed for his parole violation. Based on our conclusions above, we agree
with counsel that the issue Appellant seeks to litigate in this appeal is wholly
frivolous. Also, we do not discern any non-frivolous issues that Appellant
d
affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Olson, J., concurs in the result.
____________________________________________
2
It is well-settled that a trial court has discretion to impose sentences
concurrently or consecutively. See Commonwealth v. Austin, 66 A.3d
798, 808 (Pa. Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013).
-9-
J-S33033-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2014
- 10 -