Com. v. Watkins, N.

J-S76028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHAN GENE WATKINS
Appellant No. 1054 WDA 2014
Appeal from the Judgment of Sentence June 4, 2014
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000765-2005
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 18, 2015
Appellant, Nathan Gene Watkins, appeals from the judgment of
sentence entered following the revocation of his probation June 4, 2014.1
Additionally, Watkins’s court-appointed counsel, Erich R. Spessard, Esquire,
has filed an application to withdraw as counsel pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Watkins’ judgment of
sentence and grant counsel’s petition to withdraw.
Watkins entered a guilty plea to criminal mischief and conspiracy to
commit arson on April 5, 2006. The lower court sentenced Watkins to nine
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1
Although Watkins purports to appeal from the order entered June 9, 2014,
which denied his post-sentence motion for modification of sentence, his
appeal properly lies from the judgment of sentence entered June 4, 2014.
We have amended the caption accordingly.
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to eighteen months’ imprisonment on the conspiracy charge, to be followed
by five years’ probation for criminal mischief. Subsequent thereto, Watkins
was found to be in violation of his probation on January 26, 2012, May 24,
2012, and December 19, 2013. Relevant to the instant appeal, yet another
revocation hearing was scheduled for May 29, 2014. Following the hearing,
the court determined that Watkins had violated the conditions of his
probation by failing to inform the probation office of his recent arrest and
sentence for retail theft in Westmoreland County, by attempting to escape
on April 25, 2014, and by failing to make payments of “fines, costs,
supervision fees and restitution which has a total balance in excess of
$43,000.” N.T., Gagnon II Hearing, 3/29/14 at 70. Thereafter, the court
revoked Watkins’s probation on criminal mischief and resentenced him to 3½
to 7 years’ incarceration with credit for time served. Watkins filed a timely
post-sentence motion, which the court denied. This timely appeal followed.
Preliminarily, we note that Attorney Spessard has requested to
withdraw and has submitted an Anders brief in support thereof contending
that Watkins’ appeal is frivolous. The Pennsylvania Supreme Court has
articulated the procedure to be followed when court-appointed counsel seeks
to withdraw from representing an appellant on direct appeal:
[I]n 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 arguably believes supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
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(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
We note that Attorney Spessard has substantially complied with all of
the requirements of Anders as articulated in Santiago. Additionally,
Attorney Spessard confirms that he sent a copy of the Anders brief as well
as a letter explaining to Watkins that he has the right to proceed pro se or
the right to retain new counsel. A copy of the letter is appended to Attorney
Spessard’s petition, as required by this Court’s decision in Commonwealth
v. Millisock, 873 A.2d 748 (Pa. Super. 2005), in which we held that “to
facilitate appellate review, … counsel must attach as an exhibit to the
petition to withdraw filed with this Court a copy of the letter sent to
counsel’s client giving notice of the client’s rights.” Id., at 749 (emphasis in
original).
We will now proceed to examine the issues counsel set forth in the
Anders brief.2 Watkins first argues that the trial court abused its discretion
when it revoked his probation. See Appellant’s Brief at 4.
A court may revoke an order of probation upon proof of the violation of
specified conditions of the probation. See Commonwealth v. Infante, 888
A.2d 783, 791 (Pa. 2005). “A probation violation is established whenever it
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2
Watkins has not filed a response to Attorney Spessard’s petition to
withdraw.
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is shown that the conduct of the probationer indicates the probation has
proven to have been an ineffective vehicle to accomplish rehabilitation and
not sufficient to deter against future antisocial conduct.” Id., at 791.
Technical violations are sufficient to trigger revocation. See
Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).
Instantly, the trial court conducted a probation revocation hearing on
May 29, 2014, at which Clarion County Adult Probation Officer Curtis Drake
testified that he had an appointment with Watkins on April 25, 2014, in
order to discuss Watkin’s April 16, 2014 conviction and sentence for retail
theft in Westmoreland County. See N.T., Gagnon II Hearing, 3/29/14 at 6-
7. Officer Drake testified that when he confronted Watkins, he repeatedly
denied the conviction and resulting sentence of one-year probation. See id.
at 7. Officer Drake placed Watkins under arrest for failing to report the
police contact and resulting conviction and sentence to the probation
department, in violation of the rules and conditions of his probation
supervision. See id. at 11-12. Officer Drake additionally testified that as he
was escorting Watkins to his vehicle, Watkins slipped from his grip and
began to sprint away from the building. See id. at 15. Officer Drake chased
and was able to subdue Watkins. Adult Probation Officers Jay Kerle and
Michael Blum confirmed Officer Drake’s testimony regarding Watkins’
attempt to flee custody. See id. at 31-32; 36-39.
Following the hearing, the trial court found by clear and convincing
evidence that Watkins had violated Rule 4 of the terms and conditions of his
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probation by being arrested and not informing the probation office of his
arrest or sentence. See id. at 70. The court further determined Watkins
had violated Rule 9 by attempting to escape on April 25, 2014, and Rule 10
by failing to make payments of “fines, costs, supervision fees and restitution
which has a total balance in excess of $43,000.” Id. In light of Watkins’
repeated and willful violations of the lower court’s specified probationary
conditions, we find no abuse of discretion in the court’s revocation of his
probation.
Lastly, Watkins argues that the sentence imposed by the trial court
was “unjust or unduly harsh[.]” Appellant’s Brief at 13. Our standard when
reviewing a sentence imposed following the revocation of probation is as
follows:
Our review is limited to determining the validity of the 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. Also, upon sentencing following
revocation of probation, the trial court is limited only by the
maximum sentence that it could have imposed originally at the
time of the probationary sentence.
Commonwealth v. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation
omitted), appeal denied, 94 A.3d 1009 (Pa. 2014).
Watkins challenges the discretionary aspects of his sentence. In
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc),
an en banc panel of this Court concluded, “this Court’s scope of review in an
appeal from a revocation sentencing includes discretionary sentencing
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challenges.” Id., 83 A.3d at 1034. Therefore, Watkins claim is properly
before us.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[We] 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 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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Watkins filed a timely appeal and challenged his sentence in a
post-sentence motion. Although Watkins’ brief does not contain the
requisite Rule 2119(f) statement, the Commonwealth does not object to the
statement’s absence. Consequently, we decline to find waiver. See
Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (declining to find waiver where
Commonwealth did not object to Appellant’s failure to comply with Rule
2119(f)).
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Watkins argues in his brief that the sentence imposed by the
revocation court was so manifestly excessive as to constitute an abuse of
discretion. See Appellant’s Brief at 13. This claim raises a substantial
question for our review. See Commonwealth v. Kelly, 33 A.3d 638, 640
(Pa. Super. 2011) (claim that a sentence is manifestly excessive such that it
constitutes too severe a punishment raises a substantial question for our
review).
While Watkins argues that the sentence imposed by the lower court
following revocation was excessive, he notably does not argue that the
sentence imposed by the court was beyond the maximum. Nor does the
record support such an assertion. It is well settled that the sentencing
guidelines do not apply to sentences imposed as a result of probation or
parole revocations. See Commonwealth v. Ware, 737 A.2d 251, 255 (Pa.
Super. 1999).3 Here, the lower court did not exceed the statutory maximum
when it resentenced Watkins to 3½ to 7 years’ imprisonment for the charge
of criminal mischief following the revocation of his probation. Accordingly,
we discern no abuse of discretion in the sentence imposed by the trial court.
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3
204 PA.CODE § 303.1(b) provides: “The sentencing guidelines do not apply
to sentences imposed as a result of the following: . . . revocation of
probation, intermediate punishment or parole.”
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After examining the issues contained in the Anders brief and after
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel
granted. Jurisdiction relinquished.
President Judge Emeritus Ford Elliott joins in the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
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