Com. v. Hice, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMIE LYNN HICE, :
:
Appellant : No. 1345 WDA 2019
Appeal from the Judgment of Sentence Entered August 7, 2019
in the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000273-2013
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 06, 2020
Jamie Lynn Hice (“Hice”) appeals from the judgment of sentence
imposed following the revocation of her probation. Additionally, Hice’s
counsel, Mark A. Wallisch, Esquire (“Attorney Wallisch”), has filed a Petition
to withdraw as counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). We grant Attorney Wallisch’s Petition
to withdraw, and affirm Hice’s judgment of sentence.
On August 21, 2013, Hice entered a negotiated guilty plea to criminal
conspiracy to commit theft by unlawful taking.1 The trial court sentenced
Hice to thirty to sixty months in prison, followed by five years of probation.
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1 18 Pa.C.S.A. § 903.
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Hice was granted 100 days of credit for time served. Hice did not file any
post-sentence motions or a direct appeal.
On November 30, 2016, Hice was released from prison and placed on
parole.2 On December 20, 2018, Hice was released from parole, and began
her probation sentence. On February 7, 2019, a bench warrant was issued
for Hice’s arrest, based on allegations that Hice had violated her probation
by committing additional crimes. Additionally, Hice was charged with
violating the technical terms of her probation by failing to regularly report to
her supervising agent, and by failing to update her address after being
evicted from her approved residence. On July 3, 2019, Hice waived her right
to a Gagnon I3 hearing, and the trial court ordered a pre-sentence
investigation report (“PSI”).
On August 7, 2019, the trial court conducted a Gagnon II hearing,
and found Hice to be in violation of her probation.4 The trial court revoked
Hice’s probation and resentenced her to five to ten years in prison. Hice
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2 The record indicates that Hice was previously paroled on March 29, 2015,
but does not indicate when, and under what circumstances, she was re-
incarcerated.
3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4 The record is unclear as to whether Hice’s probation was revoked based on
the technical violations, the new criminal charges, or both. The trial court
entered an Order stating that Hice had “admit[ted] to the violations
charged.” See Gagnon Order, 7/3/19. However, the Order does not
specify whether Hice admitted solely to committing the technical violations,
or also the new criminal offenses.
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filed a post-sentence Motion for reconsideration of sentence, which the trial
court denied without a hearing.
Hice filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal. Attorney
Wallisch filed, with this Court, an Anders brief and a Petition to withdraw as
counsel.5 Hice neither filed a pro se brief, nor retained alternate counsel for
this appeal.
Before addressing Hice’s issue on appeal, we must determine whether
Attorney Wallisch has complied with the dictates of Anders and its progeny
in petitioning to withdraw from representation. See Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen
presented with an Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw.”).
Pursuant to Anders, when counsel believes that an appeal is frivolous and
wishes to withdraw from representation, he or she must
(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
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
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5 Attorney Wallisch did not initially file a petition to withdraw. Accordingly,
we directed Attorney Wallisch to either file an advocate’s brief or fulfill all of
the requirements of Anders. In response, Attorney Wallisch filed a Petition
to withdraw as counsel.
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attention. The determination of whether the appeal is frivolous
remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citation omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper 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
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).
In the instant case, our review of the Anders Brief and the Petition to
withdraw reveals that Attorney Wallisch has substantially complied with each
of the requirements of Anders/Santiago. See Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Attorney Wallisch
indicates that he has made a conscientious examination of the record and
determined that an appeal would be frivolous. Further, Attorney Wallisch’s
Anders Brief comports with the requirements set forth by the Supreme
Court of Pennsylvania in Santiago. Finally, Attorney Wallisch provided Hice
with a copy of the Anders Brief and advised her of her rights to retain new
counsel or to raise any additional points deemed worthy of the Court’s
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attention. Thus, Attorney Wallisch has substantially complied with the
procedural requirements for withdrawing from representation. We next
examine the record and make an independent determination of whether
Hice’s appeal is, in fact, wholly frivolous.
Attorney Wallisch presents the following issue for our review:
Whether the [t]rial [c]ourt committed an abuse of discretion
when it revoked [Hice’s] probation[] and re-sentenced her to
serve a minimum of five (5) years to a maximum of ten (10)
years in a state correctional institution given the circumstances
of the case[?]
Anders Brief at 4.
This issue challenges the discretionary aspects of Hice’s sentence. “A
challenge to the discretionary aspects of sentencing is not automatically
reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,
815 (Pa. Super. 2017). Prior to reaching the merits of a discretionary
sentencing issue,
[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 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).
Grays, 167 A.3d at 815-16 (citation omitted).
Hice, via Attorney Wallisch, filed a timely Notice of Appeal, preserved
her challenge in a post-sentence Motion, and included a Rule 2119(f)
Statement within the Anders brief. Additionally, Attorney Wallisch alleges
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that the trial court violated the fundamental norms underlying the
sentencing process by imposing a jail sentence based solely on a technical
violation. See Anders Brief at 7. Attorney Wallisch states that Hice’s new
charges had not been resolved before she was sentenced on the probation
violation. Id. Although the record is unclear as to whether Hice admitted to
committing the new offenses charged, see Gagnon Order, 7/3/19, supra,
Attorney Wallisch’s Statement raises a substantial question, as Hice claims
that the trial court violated the fundamental norms underlying
the sentencing process. See Commonwealth v. Crump, 995 A.2d 1280,
1282 (Pa. Super. 2010) (stating that “[t]he imposition of a sentence of total
confinement after the revocation of probation for a technical violation, and
not a new criminal offense, implicates the fundamental norms which underlie
the sentencing process.”).6 Accordingly, we will address Hice’s discretionary
sentencing claim.
Hice alleges that the trial court did not state its reasons for the
sentence on the record, explain how the sentence was necessary to vindicate
the authority of the court, or conclude that it was likely that Hice would
commit another crime if she was not sentenced to a prison term. Anders
Brief at 10.
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6 We note that even if Hice had admitted to committing additional criminal
offenses, and Hice’s claim did not raise a substantial question, we would
nevertheless consider Hice’s discretionary sentencing claim as a part of our
independent review.
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Our standard of review is well settled:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on
appeal. An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).
The reason for this broad discretion and deferential
standard of appellate review is that the sentencing court is in the
best position to measure various factors and determine the
proper penalty for a particular offense based upon an evaluation
of the individual circumstances before it. Simply stated, the
sentencing court sentences flesh-and-blood defendants and the
nuances of sentencing decisions are difficult to gauge from the
cold transcript used upon appellate review. Moreover, the
sentencing court enjoys an institutional advantage to appellate
review, bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed.
The sentencing court’s institutional advantage is, perhaps,
more pronounced in fashioning a sentence following the
revocation of probation, which is qualitatively different than an
initial sentencing proceeding. At initial sentencing, all of the rules
and procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a defendant
appears before the court for sentencing proceedings following a
violation of the mercy bestowed upon him in the form of a
probationary sentence. For example, in such a case, contrary to
when an initial sentence is imposed, the Sentencing Guidelines do
not apply, and the revocation court is not cabined by Section
9721(b)’s requirement that “the sentence imposed should call for
confinement that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of
the defendant.” 42 Pa.C.S.A. § 9721.
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Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations
and quotation marks omitted).
Upon revocation of probation, a sentencing court may choose from any
of the sentencing options that existed at the time of the original sentence,
including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that either “(1) the
defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that [s]he will commit another crime if
[s]he is not imprisoned; or (3) such a sentence is essential to vindicate the
authority of the court.” Id. § 9771(c).
Moreover, “[i]n every case in which the court … resentences an
offender following revocation of probation, … the court shall make as part of
the record, and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed.” Id. § 9721(b); see
also Pa.R.Crim.P. 708(D)(2) (providing that “[t]he judge shall state on the
record the reasons for the sentence imposed.”). However, following
revocation of probation, a sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically reference the
statutes in question. See Pasture, 107 A.3d at 28 (stating that “since the
defendant has previously appeared before the sentencing court, the stated
reasons for a revocation sentence need not be as elaborate as that which is
required at initial sentencing.”).
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Here, at sentencing, the trial court stated that it had reviewed the PSI,
and had considered Hice’s age, background, criminal record, and “everything
necessary for sentencing.” N.T., 8/7/19, at 7; see also Commonwealth v.
Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (stating that “where the
trial court is informed by a [PSI], it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and that where the court
has been so informed, its discretion should not be disturbed.”). Additionally,
the trial court indicated in its Opinion that it believed Hice was likely to
commit another crime if she was not imprisoned. See Trial Court Opinion,
10/4/19, at 2; 42 Pa.C.S.A. § 9771(c). Our review of the record confirms
that the trial court had sufficient information to make a fully informed
sentencing decision following the revocation of Hice’s probation.
Accordingly, we conclude that the trial court’s sentence was not unduly
excessive, and Hice’s discretionary sentencing challenge is wholly frivolous.
See Colon, supra.
Finally, our independent review of the record discloses no additional
non-frivolous issues that could be raised on appeal. We therefore grant
Attorney Wallisch’s Petition, and affirm Hice’s judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2020
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