Com. v. Merrick, P.

J-S73002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK MICHAEL MERRICK :
:
Appellant : No. 1875 MDA 2018
Appeal from the Judgment of Sentence Entered October 3, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000185-2017
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 11, 2020
Appellant, Patrick Michael Merrick, appeals from the judgment of
sentence entered in the Court of Common Pleas of Luzerne County on
October 3, 2018. In addition, Appellant’s counsel has filed a petition to
withdraw his representation and a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). After careful review, we grant counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
The trial court summarized the procedural history of this case as follows:
On September 7, 2017, the court accepted [Appellant’s] guilty
plea to count one, Retail Theft, 18 Pa. [C.S. §] 3929(A)(1), a
misdemeanor of the first degree (M-1). [Appellant] was
immediately sentenced to probation for eighteen (18) months
which was [o]rdered to run concurrent to any sentence he was
then currently serving.
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[Appellant’s] probation was supervised by the Pennsylvania
Board of Probation and Parole. By letter dated September 5,
2018, his supervising probation agent forwarded to the court a
document titled “Notice of Charges and Hearing” which alleged
that he violated the conditions of his probation. Subsequent to
that, [Appellant] waived his Gagnon I hearing and we scheduled
a Gagnon II hearing.[1] On October 3, 2018, [Appellant] and his
counsel appeared before the court. At that hearing, [Appellant]
admitted that he violated the condition which directed that he
refrain from the unlawful possession, use or sale of narcotics and
other illegal drugs. At the conclusion of the hearing, [w]e then
resentenced [Appellant] to a term of incarceration in a State
Correctional Facility for not less than twelve (12) months to no
more than twenty eight (28) months. [Appellant] was advised of
his [a]ppellate rights [as] well as his post-sentence rights, and
was remanded.
On November 7, 2018, [Appellant’s] counsel filed a Motion
to reinstate [Appellant’s] [a]ppellate rights. We granted counsel’s
request by Order dated November 7, 2018. A Notice of Appeal
was filed on November 8, 2018, and on November 20, 2018, we
ordered [Appellant] to file a Concise Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) and
requested the Commonwealth to respond thereto. [Appellant’s]
counsel thereafter filed a Concise Statement on December 11,
2018. The Commonwealth has not filed a response. Pursuant to
Pa.R.A.P. 1925(a), this matter is now ripe for an Opinion from this
Court.
Trial Court Opinion, 5/24/19, at 1-2 (internal citations omitted). Appellant’s
counsel filed a petition to withdraw as counsel and an Anders brief on
October 22, 2019.
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1 Due process requires that a probationer be given a preliminary (Gagnon I)
and a final (Gagnon II) hearing prior to revoking probation.
Commonwealth v. Knoble, 42 A.3d 976, 978 n.1 (Pa. 2012) (citing Gagnon
v. Scarpelli, 411 U.S. 778 (1973)). The Gagnon decision has become the
common moniker for both parole and probation revocation proceedings.
Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa. Super. 2011).
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Before we address Appellant’s question raised on appeal, we must
resolve appellate counsel’s request to withdraw. Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are
procedural and briefing requirements imposed upon an attorney who seeks to
withdraw on appeal. The procedural mandates are that counsel must:
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) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Id. (internal citation omitted).
In this case, counsel has satisfied those directives. Within his petition
to withdraw, counsel averred that he conducted a conscientious review of the
record and concluded that the present appeal is wholly frivolous. Counsel
asserts that he sent Appellant a copy of the Anders brief and petition to
withdraw, as well as a letter, a copy of which is attached to the petition. In
the letter, counsel advised Appellant that he could represent himself or retain
private counsel to represent him.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in 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 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
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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.
Counsel’s brief is compliant with Santiago. It sets forth the procedural
history of this case, outlines pertinent case authority, cites to the record, and
refers to issues of arguable merit. Anders Brief at 7-14. Further, the brief
sets forth counsel’s conclusion that the appeal is frivolous and the reasons for
counsel’s conclusion. Id. at 8, 10, 12-13. Satisfied that counsel has met the
technical requirements of Anders and Santiago, we proceed with our
independent review of the record and address the issues presented on
Appellant’s behalf.
Appellant presents the following issue in his Anders Brief: “Whether
the trial court abused its discretion when it imposed a state sentence of total
confinement, following revocation of probation, for an aggregate term of 12
months to 28 months for a technical violation of the conditions of his
probation?” Anders Brief at 2. Appellant’s issue challenges the discretionary
aspects of his sentence. We note that “[t]he right to appellate review of the
discretionary aspects of a sentence is not absolute.” Commonwealth v.
Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant
challenges the discretionary aspects of a sentence, the appeal should be
considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 163 (Pa. Super. 2007).
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As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a 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. 708; (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).
Id. at 170. Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001).
Here, the first two requirements of the four-part test are met: Appellant
filed a timely appeal, and Appellant preserved the issue of imposition of an
excessive sentence in his post-sentence motion. Moury, 992 A.2d at 170. In
the non-Anders context, the defendant must “preserve the issue in a court-
ordered Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f)
statement.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super.
2015). Where counsel files an Anders brief, however, this Court has reviewed
the matter even absent a separate Pa.R.A.P. 2119(f) statement. Zeigler, 112
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A.3d at 661. Hence, we do not consider counsel’s failure to submit a Rule
2119(f) statement as precluding review of whether Appellant’s issue is
frivolous.
Therefore, we next address whether Appellant raises a substantial
question requiring us to review the discretionary aspects of the sentence
imposed by the sentencing court. Allowance of appeal will be permitted only
when the appellate court determines that there is a substantial question that
the sentence is not appropriate under the Sentencing Code. Commonwealth
v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A substantial question exists
where an appellant sets forth a plausible argument that the sentence violates
a particular provision of the Sentencing Code or is contrary to the fundamental
norms underlying the sentencing process. Id. This Court has held that “[o]n
appeal from a revocation proceeding, we find a substantial question is
presented when a sentence of total confinement, in excess of the original
sentence, is imposed as a result of a technical violation of parole or probation.”
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Because
Appellant has presented a substantial question, we proceed with our analysis.
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Cartrette, 83 A.3d at 1033–1034 (explaining that, notwithstanding prior
decisions which stated our scope of review in revocation proceedings is limited
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to validity of proceedings and legality of sentence, this Court’s scope of review
on appeal from revocation sentencing can also include discretionary
sentencing challenges). “[T]he revocation of a probation sentence is a matter
committed to the sound discretion of the trial court and that court’s decision
will not be disturbed on appeal in the absence of an error of law or an abuse
of discretion.” Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.
Super. 2006).
Additionally, upon sentencing following a 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. Fish,
752 A.2d 921, 923 (Pa. Super. 2000); 42 Pa.C.S. § 9771(b). Once probation
has been revoked, a sentence of total confinement may be imposed if any of
the following conditions exist: “(1) the defendant has been convicted of
another crime; or (2) the conduct of the defendant indicates that it is likely
that he will commit another crime if he is not imprisoned; or, (3) such a
sentence is essential to vindicate the authority of the court.” 42 Pa.C.S.
§ 9771(c)(1-3); Fish, 752 A.2d at 923.
Furthermore, because sentencing guidelines do not apply to sentences
imposed following a revocation of probation, we are guided by the provisions
of 42 Pa.C.S. § 9721, which state the general standards that a court is to
apply in sentencing a defendant. Commonwealth v. Ferguson, 893 A.2d
735, 739 (Pa. Super. 2006).
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When imposing a sentence, the sentencing court must
consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of defendant, and
it must impose an individualized sentence. The sentence should
be based on the minimum confinement consistent with the gravity
of the offense, the need for public protection, and the defendant’s
needs for rehabilitation.
Id. In addition, in all cases where the court “resentences an offender following
revocation of probation, county intermediate punishment or State
intermediate punishment or resentences following remand, the court shall
make as a 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.”
42 Pa.C.S. § 9721. Guided by these standards, we must determine whether
the court abused its discretion by imposing a “manifestly excessive” sentence
that constitutes “too severe a punishment.” Ferguson, 893 A.2d at 739.
Moreover, this Court has explained that when the “sentencing court had the
benefit of a presentence investigation report (‘PSI’), we can assume the
sentencing court ‘was aware of relevant information regarding defendant’s
character and weighed those considerations along with mitigating statutory
factors.’” Moury, 992 A.2d at 171.
In its Pa.R.A.P. 1925(a) opinion, the trial court provided the following
explanation for imposition of Appellant’s sentence:
In the instant matter, following the conduct of a hearing, we
stated on the record that [Appellant’s] sentence of total
confinement for a period of no less than twelve (12) months was
warranted to vindicate the authority of the court. In reaching that
conclusion, we observed that at the time of [Appellant’s] original
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sentence he was serving a sentence in a State Correctional
Institut[ion] (SCI) on an unrelated case. We [o]rdered his original
sentence run concurrently with any sentences that he may have
then been serving. Thus, part of [Appellant’s] probationary
sentence was served while he was incarcerated for other offenses.
It was the occasion of his release from incarceration which
led [Appellant] to violate probation. At the revocation hearing,
[Appellant] testified that he was released from prison on
August 24, 2018, after maxing out a sentence in a State Prison.
By his own admission, [Appellant] was released from prison on
Friday, but elected to report to probation the following Monday
where he apparently advised his supervising probation officer that
he “spent the weekend in a hotel, drinking, using molly (MDMA),
smoking marijuana and taking pills with strippers.” A urine
sample from [Appellant] was tested and confirmed his statements
about using drugs. Given that [Appellant] willfully went to a hotel
and used a variety of illegal drugs almost immediately after he
was released from state prison after maxing out that sentence, it
was clear to the court that . . . he was not sufficiently rehabilitated.
In light of the foregoing, continuing [Appellant’s] probation was
not an adequate means to attempt reform and rehabilitate him
and a period of total confinement was essential to vindicate the
authority of the court.
Trial Court Opinion, 5/24/19, at 4-5 (internal citations omitted).
At the time of resentencing, the trial court made the following statement
regarding Appellant’s sentence:
I will revoke and resentence [Appellant] on the retail theft count
before me. On that count, the [c]ourt is going to sentence
[Appellant] to a minimum of 12 months to a maximum of 28
months to be served in a state correctional institution. I will run
that concurrent with the other sentence he’s now serving. I’m
giving you the benefit of running that concurrent since apparently
you have fessed up and knowing the nature of the offense before
me but you simply have a bad history of complying with sentences
as has been previously outlined. Pay all costs as was previously
ordered on this case. You are to pay the restitution of $640 to
LensCrafters; undergo appropriate drug and alcohol evaluations
and comply with all recommended treatment; refrain from drugs
or alcohol unless prescribed by a physician; don’t frequent places
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serving alcohol or associate with anyone using drugs or alcohol.
Again, the [c]ourt feels this sentence is appropriate to uphold the
integrity of the [c]ourt’s order and given his clear violation of
those prior orders.
* * *
Just so we are clear, the [c]ourt did feel that a period of
confinement was warranted in this case in order to vindicate the
authority of the [c]ourt given [Appellant’s] violation of his
probationary sentence and his continual violation of these type[s]
of sentences.
* * *
I think [Appellant] needs to serve the sentence that was imposed
and hopefully get a longer period of supervision and structure and
to address his substance abuse and other issues. . . .
N.T., 10/3/18, at 5-7.
It is undisputed that Appellant violated the terms of his probation by
conduct indicating that it was likely that he would commit additional crimes if
he was not imprisoned. N.T., 10/3/18, at 2-7. As a result, the trial court had
authority to resentence Appellant to total confinement pursuant to 42 Pa.C.S.
§ 9771(c)(2). Additionally, the trial court had authority to resentence
Appellant to total confinement pursuant to 42 Pa.C.S. § 9771(c)(3) in order
to vindicate its authority as a result of Appellant’s probation violation.
Furthermore, the court had authority to impose any sentence that was
available to it at Appellant’s original sentencing. Appellant’s sentence
following probation revocation of twelve to twenty-eight months of
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incarceration2 was within the purview of sentencing parameters available to
the trial court when it initially sentenced him. See 18 Pa.C.S. § 1104(1)
(providing maximum sentence of confinement of five years for conviction of
misdemeanor of the first degree). Thus, the trial court’s resentencing of
Appellant to a maximum of twenty-eight months was not an abuse of
discretion.
In sentencing Appellant, the trial court also considered the factors of 42
Pa.C.S. § 9721, including Appellant’s rehabilitative needs. The trial court
stated on the record the factors that led it to impose the probation-revocation
sentence. Further, because the sentencing court had the benefit of a PSI
report, there is a presumption that the court was aware of Appellant’s history
and needs and weighed those factors in sentencing Appellant. N.T., 10/3/18,
at 6-7; Moury, 992 A.2d at 171. Therefore, the sentence imposed by the trial
court does not constitute an abuse of discretion, and we agree with counsel
that Appellant’s assertion that the sentence was unduly harsh and excessive
is without merit.
We also have independently reviewed the record in order to determine
whether there are any non-frivolous issues present in this case.
Commonwealth v. Yorgey, 188 A.3d 1190, 1198-1199 (Pa. Super. 2018)
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2 No credit for time served was awarded on this probation-revocation
sentence because Appellant had been awarded credit for time served on a
separate conviction. N.T., 10/3/18, at 4.
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(en banc). Having concluded that there are no meritorious issues, we grant
Appellant’s counsel permission to withdraw and affirm the judgment of
sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2020
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