Com. v. Smith, C.

J-S10036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHASITY LEE SMITH :
:
Appellant : No. 1350 MDA 2021
Appeal from the Order Entered September 20, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007994-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHASITY LEE SMITH :
:
Appellant : No. 1351 MDA 2021
Appeal from the Order Entered September 20, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003515-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED JULY 29, 2022
Chasity Lee Smith appeals from the order denying reparole.1 Smith’s
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 Retired Senior Judge assigned to the Superior Court.
1The lower court’s order followed a hearing on that issue. However, as will be
more fully detailed infra, there is ambiguity in the record as to the specific
nature and even the naming convention used to describe the hearing. See
Anders/Santiago Brief, at 8 n.1 (“Despite the [Violation of Parole] court’s
(Footnote Continued Next Page)
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counsel has filed a petition seeking to withdraw his representation in
conjunction with a brief pursuant to Anders v. California, 386 U.S. 738(1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After a thorough
review of counsel’s submissions as well as the record, we grant the petition to
withdraw and affirm.
Briefly, Smith pleaded guilty, at two separate docket numbers, to
forgery and receiving stolen property.2 For these offenses, she received a
concurrent sentence of time served to twenty-three months of incarceration
to be followed by three years of probation.
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labeling of [the] hearing as a ‘reconsideration of sentence’ hearing, this was
a reparole hearing.”). Moreover, the court’s statements filed with this Court
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) describe a
different order that it believes Smith has appealed from, the order denying
her motion for reconsideration of her sentence, entered on October 1, 2021,
see Trial Court’s 1925(a) Statement, 11/23/21, at 1 (unpaginated) (one
statement at each docket number), whereas the thrust of Smith’s
Anders/Santiago brief challenges the reparole decision made on September
20, 2021. The appealed from orders of record simply state: “sentence remains
as imposed.” Violation Order, 9/20/21, at 1 (unpaginated) (one order at each
docket number).
At the September 20 hearing, Smith’s counsel unambiguously asked the
court for her to be reparoled. See Hearing, 9/20/21, at 3. The court remarked
later in that hearing: “[s]he’s been sentenced. The question is whether she
has the opportunity for parole.” Id., at 10. However, the court also “decline[d]
to change the sentences last imposed[.]” Id., at 13.
Even more broadly, while Smith’s counsel has submitted that the
determination on September 20 constitutes a judgment of sentence, it seems
that such a determination would more likely be regarded as, quite simply, an
appealable order. See 42 Pa.C.S.A. § 9776 (outlining the judicial procedure
for parole/reparole). We have amended the caption accordingly.
2 See 18 Pa.C.S.A. § 4101(a)(2), and 18 Pa.C.S.A. § 3925(a), respectively.
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As recounted in the Anders/Santiago brief, which includes a somewhat
complicated procedural history:
On May 9, 2019, [approximately eleven months after the initial
sentencing, Smith] was sentenced to the unserved balance of 584
days to be paroled 120 days in York County Prison on docket CR-
7994-2017 [forgery], and was given a sentence of the unserved
balance of 647 days to be paroled forthwith on docket CR-3515-
2018 [receiving stolen property]. Early release was granted to
inpatient treatment on May 22, 2019.
On this violation[, Smith] received 63 days credit on CR-7994-
2017 and 50 days credit on CR-3515-2018.
On September 10, 2020, [Smith] was found to be in violation of
her parole for a second time and sentenced to the unserved
balance of 521 days to be paroled forthwith on docket CR-7994-
2017, and was given a sentence of the unserved balance of 597
days to be paroled after 120 days of incarceration on docket CR-
3515-2018. Early release was granted to inpatient treatment on
October 7, 2020.
On this violation[, Smith] received 57 days credit on CR-7994-
2017 and 84 days credit on CR-3515-2018.
* * *
On April 26, 2021, the Violation of Parole (VOP) court revoked
[Smith’s] parole in each case, for a third time, and resentenced
her to the unserved balance in each case. At the time of this
sentencing[, Smith] had an unserved balance of 464 days on CR-
7994-2017 and an unserved balance of 513 days on CR-3515-
2018.
The VOP court found … Smith to be in violation based on her
attorney’s admission of the violations which were based on his
consultation with …Smith, the statements put forth by … Smith’s
parole officer regarding the facts put forth in the Petition for Parole
Violation, and its determination that … Smith’s explanation for her
violations were incredible.
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The Petition alleged … Smith violated her parole for failing to
report, possessing/consuming illegal drugs, moving without
permission, failure to pay restitution, and violating a special
condition mandating treatment for drug use. The [P]etition
essentially lists the events from October []7, 2020, when … Smith
was released from York County Prison to Cove Forge [T]reatment
[F]acility for inpatient treatment, to November 18, 2020, when
the parole officer determined … Smith had absconded from parole.
The [P]etition alleged on October 19, 2020, the parole officer
received a call from … Smith’s counselor at Cove Forge stating
that … Smith was going to be unsuccessfully discharged from
treatment due to behavioral issues. … Smith was then transported
on October 24, 2020, to New Life Sober Living Recovery House.
On October 27, 2020, … Smith informed her parole officer that she
was tested for Covid-19 and told her she could not return to the
recovery house until the results returned. … Smith was residing in
a Motel 6 in York, Pennsylvania, until the results returned, and her
parole officer told her to keep her advised of the results. On
November []2, 2020, according to the parole officer’s [P]etition,
… Smith informed the parole officer that she would not be
returning to the recovery house and admitted to using
methamphetamines on October 29, 2020. After that[,] … Smith’s
contact with the parole officer became increasingly sporadic until
the parole officer finally determined … Smith had absconded. The
parole officer testified and substantially corroborated the Petition.
After … Smith gave her explanations for failing to successfully
engage in treatment, the VOP court explained that it did not find
her credible given the parole officer’s report and the history of …
Smith’s case, which had prior violations. The VOP sentenced her
to serve the remainder of her sentence in York County Prison.
* * *
On July 12, 2021, … Smith filed a Post[]Conviction Relief Act
(PCRA) petition in order to get her post-sentence and appeal
rights reinstated from the April 26, 2021 hearing. On August 31,
2021, the VOP court held a hearing on the PCRA [petition], denied
the PCRA petition, based on counsel’s withdrawal of the petition,
and granted … Smith a reconsideration of sentence hearing. On
September 15, 2021, … Smith filed a brief in support of reparole
in advance of her hearing. On September 20, 2021, the VOP court
held a hearing to reconsider … Smith’s parole. At the hearing[,] …
Smith argued, based on the brief, that she should be reparoled
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because the prior violation, which was based largely on her
absconding from treatment and continued drug use, was due to
her medical issues and the extreme stress she was facing from
those medical issues, and not because she did not want to engage
in treatment. She argued that she should be reparoled to
reengage in treatment prior to fully completing her sentence. The
Commonwealth countered that she had not adjusted well while in
York County Prison and should not be paroled. The parole officer
stated that she believed that short of drug treatment court, …
Smith would likely not succeed in treatment, and that … Smith
had repeatedly refused drug treatment court. The VOP court
reaffirmed its earlier finding of violation and did not reparole …
Smith.
After this hearing, counsel filed a motion for reconsideration of
sentence and a motion to withdraw appearance on September 29,
2021. On October 1, 2021, the VOP court denied both motions by
written order, without a hearing.
Anders/Santiago Brief, at 5-9 (citations to the record and footnotes
omitted).
After filing notices of appeal, Smith’s counsel elected to submit a
statement of intent to file an Anders/Santiago brief rather than a statement
of errors complained of on appeal. Correspondingly, because Smith’s counsel
never filed a statement of errors complained of on appeal, the lower court did
not issue a substantive responsive opinion.3
In that Anders/Santiago brief, after concluding that there were no
nonfrivolous appellate issues, Smith’s counsel provided an overview of the
procedural history of the case, replicated supra, a discussion of Smith’s right
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3 The Commonwealth submitted a letter to this Court in lieu of a brief wherein
it agreed with Smith’s counsel that any appeal in this matter would be
frivolous.
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to counsel in a letter specifically sent to her, and also presented two potentially
arguable, yet ultimately frivolous, issues. To that end, we note that Smith has
filed no further submissions, either pro se or through privately retained
counsel.
Before, inter alia, addressing those two issues raised by counsel, we
must first resolve the outstanding petition to withdraw. See Commonwealth
v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). If there is
substantial compliance with the dictates of Anders and Santiago, we will
concurrently address the issues raised in the Anders brief as well as conduct
an independent examination of the record to determine those claims’ viability.
See id.Anders requires counsel to:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
[the] defendant and advise him of his right to retain new counsel
or to raise any additional points that he deems worthy of the
court's attention. The determination of whether the appeal is
frivolous remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2011) (citation
omitted). In addition, our Supreme Court has mandated that an Anders 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
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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.
If those aforementioned requirements have been met, “it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). Equally, we must
independently assess the record “to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted).
We find that there has been substantial compliance with the technical
requirements of Anders and Santiago. See Commonwealth v. Wrecks,
934 A.2d 1287, 1290 (Pa. Super. 2007) (requiring substantial compliance to
satisfy Anders). After scouring the record, counsel concluded that any appeal
would be frivolous and filed a petition to withdraw as counsel. In the
corresponding Anders/Santiago brief, counsel provided both a factual and
procedural history of this case. Counsel then went on to highlight potentially
appealable areas and provided complete discussions, replete with authority,
as to why those issues would fail should they be subject to appellate review.
In addition, the record demonstrates that not only did counsel provide
Smith with a copy of the Anders/Santiago brief and petition to withdraw, but
counsel unambiguously made it known to Smith that she had a right to retain
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new counsel, proceed pro se, or file an additional brief containing other
potentially meritorious claims. See, e.g., Anders/Santiago Brief, Appendix
D, Group Ex. A. Accordingly, as the requirements for withdrawing from
representation have been met, we proceed to an examination of the record to
ascertain the frivolousness of this appeal.
In counsel’s first issue, there is discussion as to whether the VOP court
erred when it did not reparole Smith, which is predicated on an abuse of
discretion analysis. The Anders/Santiago brief outlines that Smith’s third
parole violation included her breaking of five different conditions. See
Anders/Santiago Brief, at 12 (enumerating the violations as: “failure to
report, possession/consumption of illegal drugs, moving without permission,
failure to pay restitution, and the special condition of complying with
treatment[]”). At the corresponding hearing, Smith’s counsel admitted on
Smith’s behalf that she violated those conditions. Smith explained, to varying
degrees, why she engaged in violative behavior.
First, we emphasize that
[p]arole is nothing more than a possibility, and, when granted, it
is nothing more than a favor granted upon a prisoner by the state
as a matter of grace and mercy shown by the Commonwealth to
a convict who has previously demonstrated a probability of [her]
ability to function as a law-abiding citizen in society.
Weaver v. Pennsylvania Board of Probation & Parole, 688 A.2d 766, 770
(Pa. Commw. Ct. 1997). Denial of parole is a discretionary act, which therefore
means it is subject to review from this Court under an abuse of discretion
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standard. See Commonwealth v. Becker, 172 A.3d 35, 38-39 (Pa. Super.
2017). To that point, we apply the well-settled principles underpinning abuse
of discretion: “[a]n abuse of discretion is not merely an error of judgment, but
if in reaching a conclusion the law is overridden or misapplied or the judgment
was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill[-
]will, as shown by the evidence or the record, discretion is abused.” Id., at 39(citation omitted).
Specifically in the context of this case, “[a]fter recommitting the
parolee, the court retains the power to grant reparole. The grant to parole or
reparole is subject to the court’s discretion as to what ‘may seem just and
proper.’” Commonwealth v. Fair, 497 A.2d 643, 645 (Pa. Super. 1985).
At the reparole hearing, the court heard detailed testimony from Smith,
her counsel, the Commonwealth, and probation officers about whether or not
reparole was warranted. See Hearing, 9/20/21, at 12 (“We’ve listened to what
[Smith] has had to say. We’ve listened to what her lawyers had to say. We’ve
listened to what the Commonwealth and the probation officers had to say.
We’ve had our say. We’ve told [Smith] exactly how we feel). The court then
continued: “[n]onetheless, while we decline to change the sentences last
imposed and we hereby affirm those, we will hold open the possibility for
[Smith] that if her probation or parole officer sees fit, she may initiate a
petition to have the [c]ourt consider reparole on [her] in these cases.” Id., at
13. In making its determination, the court, well-apprised of Smith’s history
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and involvement in the court system, remarked: “the truth of the matter is
[Smith’s] been given all sort of resources. None of them suit her. And I guess
what she doesn’t understand is this really isn’t a matter of negotiating with
her.” Id., at 10.
We are unable to discern any abuse of discretion in the court’s denial of
reparole. The court heard from and considered all of the relevant parties in
making its determination, gave Smith ample time to speak on her own behalf,
and came to a discretionary conclusion, based on the information that it
received. As such, any appeal on this basis would have been frivolous.
In counsel’s second issue presented, the applicability of this Court’s
decision in Commonwealth v. Koger, 255 A.3d 1285 (Pa. Super. 2021), is
raised given that “[t]he specific parole conditions alleged to have been violated
by … Smith, during her third parole violation, were not ordered by the court
at the time of her original sentencing.” Anders/Santiago Brief, at 13. In
Koger, we held that “a sentencing court may not delegate its statutorily
proscribed duties to probation and parole offices and is required to
communicate any conditions of probation or parole as a prerequisite to
violating any such condition.” 255 A.3d at 1291. The lower court’s failure to
do so in Koger resulted in a reversal of probation and parole revocation and
a vacation of the VOP judgment of sentence.
Preliminarily, it is not entirely clear how, precisely, Smith could raise a
challenge under Koger if the basis for the present appeal is limited to a
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determination as to whether reparole was warranted. Unlike what happened
here, Koger deals with an appeal from a judgment of sentence imposed
following a second parole revocation. See id., at 1287. However, in any event,
we agree with counsel that Koger is inapplicable.
On at least two occasions, Smith was apprised, via orders of court, as
to several of the conditions that would later be asserted against her at the
third VOP hearing. See Order, 5/9/20 (specifically ordering, inter alia, drug
and alcohol treatment as well as payment of restitution); Order, 9/10/20
(including, materially, the same conditions). The third VOP hearing dealt with
“numerous allegations, failure to report, possession and consumption of illegal
drugs, moving without permission, violation of special conditions and failure
to pay.” Violation of Parole Hearing, 4/26/21, at 2. Immediately thereafter,
Smith’s counsel conveyed to the court that “she admit[ed] the violations[.]”
Id., at 3. Later in that hearing, after finding that Smith violated the conditions
of her parole, the court sentenced her to the unserved balances remaining in
both of her cases concurrently resulting in a sentence of 513 days “without
the possibility of parole.” Id., at 13.
As the court implicitly “found [Smith] to be in violation of conditions that
were added by the court at her first and second violations[,]”
Anders/Santiago Brief, at 15, Koger does not apply. Whereas Koger deals
with the imposition of conditions exclusively from a probation/parole office
instead of proper origination of those conditions coming from the court, here,
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the court specifically advised Smith, via a written order, of conditions that she
would later be found to have violated. As the court specifically advised Smith
of at least some of her parole’s conditions, any appeal predicated on Koger
would have been unmeritorious.
Stated succinctly, we agree with counsel that the legal bases advanced
in support of an appeal lack legitimacy and are therefore frivolous.
Furthermore, an independent review of the record did not uncover any other
non-frivolous issues. See, e.g., Goodwin, 928 A.2d at 291. As such, we are
constrained to affirm the order denying reparole as well as grant counsel’s
petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judge Murray joins the Memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2022
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