Com. v. Beachtel, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JESSE A. BEACHTEL :
:
Appellant : No. 1154 MDA 2022
Appeal from the Judgment of Sentence Entered May 26, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001196-2014
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED MAY 8, 2023
Jesse A. Beachtel (Appellant) appeals, nunc pro tunc, from the judgment
of sentence1 entered in the Dauphin County Court of Common Pleas following
the revocation of his parole and probation for sexual offenses committed
against his minor daughter. Contemporaneous with this appeal, Appellant’s
counsel, Wendy J. F. Grella, Esquire, has filed a motion to withdraw from
representation and an Anders brief. See Anders v. California, 386 U.S.
738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). The
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant purports to appeal from the “denial of his post-sentence motion by
[o]rder dated August 16, 2022, and reinstatement of his appellate rights by
order dated July 18, 2022.” Appellant’s Notice of Appeal, 8/18/22. However,
the appeal properly lies from the judgment of sentence imposed on May 26,
2021, following the revocation of his parole and probation. See
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)
(en banc). We have corrected the caption accordingly.
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sole issue presented in the Anders brief challenges the discretionary aspects
of Appellant’s revocation sentence. Upon our review, we conclude Attorney
Grella has not properly complied with the requirements of Anders and
Santiago. Furthermore, we have identified an arguably meritorious claim not
addressed by Attorney Grella ─ that is, whether the trial court erred when it
determined Appellant was still serving time on parole for any offense at the
time of the violation, and, if so, whether the court anticipatorily revoked
Appellant’s probation imposed for other offenses in contravention of this
Court’s en banc decision in Commonwealth v. Simmons, 262 A.3d 512 (Pa.
Super. 2021) (en banc). Therefore, we deny Attorney Grella’s motion to
withdraw, and direct counsel to file an advocate’s brief or new Anders brief
and motion to withdraw within 30 days of the date of this memorandum.
We gather the following facts and procedural history from the truncated
certified record before us. In May of 2013, the victim ─ Appellant’s then 17-
year-old daughter ─ reported that Appellant had sexually assaulted and raped
her when she was 9 years old. See Affidavit of Probable Cause, 8/9/13, at 1
(unpaginated). On April 9, 2015, Appellant entered a guilty plea 2 to charges
of unlawful contact with a minor (Count 4), indecent assault (Counts 5 and 6),
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2 Neither the written guilty plea colloquy nor the transcript from the plea
hearing are included in the certified record.
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and corruption of minors (Count 7).3 Appellant proceeded to sentencing on
June 23, 2015, at which time the court imposed a term of 11½ to 23 months’
incarceration for unlawful contact with a minor (Count 4), and three terms of
five years’ probation for the remaining offenses. The court directed the
probationary terms run concurrent to each other, but consecutive to the prison
sentence. See Sentencing Order, 6/23/15. Although the trial court ordered
that Appellant undergo an assessment4 by the Sexual Offender’s Assessment
Board to determine if he met the criteria for classification as a sexually violent
predator (SVP) pursuant to the Sexual Offenders Registration and Notification
Act (SORNA),5 the transcript from the June 2015 sentencing hearing is not
included in the certified record, and the record does not reveal whether he
was classified as an SVP, or, for that matter, what registration requirements
were imposed. Appellant did not file a direct appeal.
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3 18 Pa.C.S. §§ 6318(a)(1), 3126(a)(7), and 6301(a)(2), respectively.
Charges of rape, involuntary deviate sexual intercourse, and incest (Counts 1,
2, and 3) were subsequently withdrawn. See 18 Pa.C.S. §§ 3121(c), 3123(b),
4302.
4 See Order, 4/13/15.
5 42 Pa.C.S. §§ 9799.51-9799.75 (Subchapter I). See also 42 Pa.C.S. §
9799.52 (Subchapter I is applicable to those convicted of a sexually violent
offense committed on or after April 22, 1996, but before December 20, 2012).
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On November 30, 2016, Appellant was released on parole. By our
calculation, his maximum sentence for the unlawful contact with a minor
offense should have expired, at the latest, on May 23, 2017.6
A detainer was issued for Appellant in February of 2018. On March 22,
2018, Appellant’s “parole” was revoked on the charge of unlawful contact with
a minor, and he was sentenced to serve the “balance” of his term ─ 58 months
and 21 days. See Commitment Order, 3/22/18. Appellant was immediately
paroled, and his supervision was transferred to Adams County. Id. The only
supporting documentation for this revocation is the March 22, 2018,
commitment order. There is no explanation in the record as to how Appellant
could be ordered to serve 58 months’ imprisonment as the “balance” of his
term for a “parole” violation, when his original prison sentence was only a
maximum of 23 months’ incarceration. However, as noted above, the
commitment order lists only Count 4 ─ unlawful contact with a minor ─ as the
relevant charge, and includes a checkmark noting this was a “PAROLE”
violation, to which Appellant was directed to “SERVE [THE] BALANCE” of
“58 mo 21 days.” Commitment Order, 3/22/18. The order makes no mention
of any of the probationary sentences.
Another detainer was docketed for Appellant on April 2, 2021. On April
20th, Appellant, then represented by Steve Rice, Esquire (Revocation
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6 The record does not reveal whether Appellant received any credit for time
served at his June 2015 sentencing hearing, or whether the prison term was
imposed consecutively to another sentence.
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Counsel), filed a motion seeking to schedule a revocation hearing or set bail.
Appellant asserted he had been incarcerated on the detainer since March 31st,
and that his employer was holding his job for him. See Appellant’s Motion to
Schedule Revocation Hearing or to Set Bail, 4/20/21, at 2-3. A revocation
hearing was scheduled for May 26, 2021.
At the May 26th hearing, Appellant did not contest the allegations that
he violated the terms of his probation and parole.7 See N.T., 5/26/21, at 2.
He presented the testimony of his employer ─ Jim Hobbs of Hobbs Trucking ─
who stated Appellant was a “good truck driver” and a dependable employee.
See id. at 8-9. Revocation Counsel requested the court “keep[ Appellant] in
a local setting” so that he could continue to work. Id. at 10. At the conclusion
of the hearing, the following exchange took place:
THE COURT: All right . . . Count 4[, unlawful contact with a
minor,] is no longer in play, but Counts 5, 6, and 7 are?
[Commonwealth]: Yes, Your Honor, [Count] 4 has just
about two months of time credit left. So it would be just
basically [Counts] 5, 6, 7. They’re each misdemeanors of the first
degree with 5-year maximums.
THE COURT: Thank you.
Count 5, we’ll do 2 and a half to 5 years in state prison.
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7Appellant acknowledged that although he was ordered to have no contact
with minors, he texted his fiancée’s two minor sons, and traveled out of state
on vacation with them without permission from his probation officer. See
N.T., 5/26/21, at 5-6, 9-11. It was also alleged that he had “pornographic
materials on his phone of his fiancée.” Id. at 11.
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Count 6 and Count 7, we’ll do another 5 years on each. They
will run consecutive to each other and consecutive to Count 5.
Does he have time credit?
We’ll put the time credit on Count 4 and that will close
out Count 4.
* * *
Do you have the time credit dates for Count 4?
How long has he been in now?
PROBATION OFFICER: 20 months and 15 days.
* * *
That’s total, Your Honor. That’s the total time credit.
* * *
THE COURT: So that all goes to Count 4[.]
Id. at 13-15 (emphases added). Thus, the trial court applied all credit for
time-served to Count 4 ─ unlawful contact with a minor ─ and “closed out”
that sentence. The court then imposed a term of two and one-half to five
years’ imprisonment for one count of indecent assault, followed by two
consecutive terms of five years’ probation for the second indecent assault
offense and corruption of minors ─ an aggregate term of two and one-half to
five years’ incarceration followed by 10 years’ probation. See Sentencing
Order, 5/26/21. No post-sentence motion or direct appeal was filed.
On January 7, 2022, Appellant filed a timely, pro se petition for relief
pursuant to the Post Conviction Relief Act (PCRA),8 asserting, inter alia,
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8 42 Pa.C.S. §§ 9541-9546.
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Revocation Counsel’s ineffectiveness for failing to challenge his sentence.
Present counsel, Attorney Grella, was appointed, and on May 23, 2022, filed
an amended petition, in the form of a motion seeking reinstatement of
Appellant’s post-sentence motion and appeal rights nunc pro tunc. See
Appellant’s Motion to Reinstate Appellate Rights Nunc Pro Tunc, 5/23/22. The
Commonwealth did not oppose Appellant’s requested relief. See
Commonwealth’s Response to Appellant’s Post-Conviction Relief Act Petition,
7/6/22, at 1. Thus, on July 18, 2022, the trial court entered an order granting
reinstatement of Appellant’s post-sentence and direct appeal rights, and
directing Appellant to file a post-sentence motion within 10 days. See Order,
7/18/22.9
Attorney Grella filed a post-sentence motion nunc pro tunc on July 28,
2022, asserting that Appellant’s revocation sentence was “excessive and
constituted an abuse of discretion[.]” Appellant’s Post-Sentence Motion
Pursuant to Pa.R.Crim.P. 702(B), 7/28/22, at 2 (unpaginated). The trial court
denied the motion on August 16, 2022, and this timely appeal follows.10
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9Notice of entry of this order was sent to the parties on July 19, 2022. See
Docket Entry, 7/18/22.
10 On August 29, 2022, the trial court ordered Appellant to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. Attorney Grella
complied, indicating her intention to file an Anders brief. See Appellant’s
Statement of Matters Complained of Pursuant to Pa.R.A.P. 1925(b), 9/19/22.
However, she also stated that she intended to present a claim that the
aggregate revocation sentence was excessive “where more emphasis was
placed on the incident than on the rehabilitative needs of [Appellant] and
(Footnote Continued Next Page)
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Where, as here, counsel files a motion to withdraw and accompanying
Anders brief, we must first examine counsel’s request to withdraw before
considering any substantive issues presented on appeal. Commonwealth v.
Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). Anders and its progeny
require an attorney who seeks to withdraw from representation on direct
appeal to:
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 [appellant]; and 3) advise the [appellant] that
he or she has the right to retain private counsel or raise additional
arguments that the [appellant] deems worthy of the court’s
attention.
Commonwealth v. Redmond, 273 A.3d 1247, 1252 (Pa. Super. 2022)
(citation omitted). Further, in Santiago, our Supreme Court announced 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
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. Lastly, counsel is required
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failed to account for mitigating factors[.]” Id. (capitalization omitted). The
trial court issued a Pa.R.A.P. 1925(a) opinion on October 12th, declining to
address any potential claims because Attorney Grella intended to file an
Anders brief. See Trial Ct. Op., 10/12/22.
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[to] provide the appellant with a copy of the Anders brief,
together with a letter that advises the appellant of his or her right
to (1) retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the appellant deems
worthy of the court’s attention in addition to the points raised by
counsel in the Anders brief. . . .
Redmond, 273 A.3d at 1252 (citation & quotation marks omitted).
“Substantial compliance with the Anders requirements is sufficient.” Id.
(citation omitted).
Moreover, “part and parcel of Anders is our Court’s duty to review the
record to insure no issues of arguable merit have been missed or misstated.”
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018).
Consequently, after we determine that counsel has satisfied the requirements
of Anders and its progeny, we must
conduct a review of the record to ascertain if on its face, there are
non-frivolous issues that counsel, intentionally or not, missed or
misstated. We need not analyze those issues of arguable merit;
just identify them, deny the motion to withdraw, and order
counsel to analyze them.
Id.Here, we conclude Attorney Grella has failed to substantially comply with
the requirements of Anders and its progeny. In her motion to withdraw,
Attorney Grella states that “[a]fter reviewing the record in the instant case, it
does not appear . . . that the trial court abused its discretion in sentencing
Appellant to two and one half (2 ½) to five (5) years of incarceration or that
Appellant’s sentence was excessive or unreasonable.” Motion to Withdraw as
Counsel, 12/22/22, at 3 (unpaginated). Furthermore, she concludes “[t]here
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is no merit to [Appellant’s] sentencing challenge and, in turn, no support for
his PCRA claims.”11 Id. However, Anders requires that counsel make a
“conscientious examination” of the record and conclude the appeal is more
than simply meritless ─ counsel must determine the appeal is frivolous.
Redmond, 273 A.3d at 1252. See also Smith v. Commonwealth,
Pennsylvania Bd. of Prob. & Parole, 574 A.2d 558, 562 (Pa. 1990)
(“Generally, an appeal which is determined to lack any basis in law or fact is
considered to be frivolous[; a]n appeal is not frivolous merely because it lacks
merit.”). Accordingly, Attorney Grella’s petition to withdraw is deficient.
Furthermore, we conclude Attorney Grella’s Anders brief is also
inadequate. Counsel’s summary of the procedural history omits critical facts
that, as we explain infra, raise concerns about the legality of Appellant’s
sentence. See Anders Brief at 5 (unpaginated).12 Moreover, counsel appears
to challenge the 10-year term of county probation imposed by the trial court
but does not explain why that particular challenge is frivolous. See id. at 10-
14. Thus, we are compelled to deny counsel’s petition to withdraw, and direct
her to file either an advocate’s brief, or a compliant Anders brief and petition
to withdraw.
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11 Attorney Grella’s reference to the PCRA is confounding. Although this
appeal began via a PCRA petition, as noted supra, Appellant’s direct appeal
rights from his revocation sentence were reinstated nunc pro tunc. See Order,
7/18/22.
12Attorney Grella paginated the first two pages of the brief as “ii” and “iii.”
Therefore, we designate the third page, titled “Jurisdiction,” as page “1.”
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Nevertheless, we note that our preliminary review of the underlying
facts and procedural history of this case reveals a potentially meritorious issue
that Attorney Grella must address ─ namely, whether Appellant’s sentence is
illegal.
“[T]he only option for a court that decides to revoke parole is to
recommit the defendant to serve the already-imposed, original sentence.”
Commonwealth v. Kalinchak, 943 A.2d 285, 290 (Pa. Super. 2008). In the
present case, it is unclear in the record how Appellant could have still been
serving any time for parole on Count 4 ─ unlawful contact with a minor ─ at
the time the present detainer was issued in April of 2021. Indeed, as noted
supra, Appellant’s maximum sentence for that offense was 23 months’
imprisonment, which should have expired in May of 2017. However, the
record indicates that his parole for that sentence was revoked nearly a year
later, in March of 2018, and he was sentenced to serve the “balance” of that
term ─ 58 months and 21 days. Perhaps the trial court intended to revoke
Appellant’s five-year probationary term at that time, and impose a term of
imprisonment of 58 months, 21 days. However, the record does not support
such a finding. Without clarity regarding whether Appellant’s probation or
parole was revoked in March of 2018, we are unable to determine from the
record before us whether the court properly revoked Appellant’s probation or
parole in May of 2021.
Moreover, if Appellant was still serving parole on any sentence at the
time of the present violation, it appears that the trial court anticipatorily
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revoked Appellant’s probation before he began serving his probationary
sentence in violation of this Court’s en banc decision in Simmons. Prior to
Simmons, this practice was not only permissible, it was routine. However,
the Simmons Court overruled the prior caselaw permitting this practice, after
concluding “[n]o statutory authority exists to support” the anticipatory
revocation of a term of probation. Simmons, 286 A.3d at 524-25. The en
banc panel explained:
Rather, the plain language of the relevant statutes provides that:
a trial court may only revoke an order of probation “upon proof of
the violation of specified conditions of the probation;” the
“specified conditions” of an order of probation are attached to, or
are a part of, the order of probation; and, when the trial court
imposes an “order of probation” consecutively to another term,
the entirety of the “order of probation” ─ including the “specified
conditions” ─ do not begin to commence until the prior term
ends.
Id. at 525 (emphasis added & footnote omitted).
We recognize that the decision in Simmons was filed after the trial court
issued the revocation sentence in the present case.13 Nevertheless, “[i]t is
well settled that Pennsylvania appellate courts apply the law in effect at the
time of the appellate decision[; thus] a party whose case is pending on direct
appeal is entitled to the benefit of changes in law which occur before the
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13Appellant’s parole and probation were revoked, and he was resentenced,
on May 26, 2021. The en banc decision in Simmons was filed nearly three
months later, on August 18th.
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judgment becomes final.”14 Commonwealth v. Conley, 286 A.3d 313, 317
n.9 (Pa. Super. 2022) (citation & quotation marks omitted). Furthermore, we
recognize, as did the Conley Court, that the Pennsylvania Supreme Court
subsequently granted review in an unrelated case “which directly implicates
our holding in Simmons.” Id. at 317 n.10. See Commonwealth v.
Rosario, 271 A.3d 1285 (Pa. Jan. 25, 2022) (granting petition for allowance
of appeal to consider, inter alia, whether the Simmons Court erred “by
overturning over 40 years of case law permitting the revocation of consecutive
probation sentences not yet commenced”). Nevertheless, Simmons “remains
binding precedent” until the Supreme Court limits or clarifies that holding.
See Commonwealth v. LeClair, 236 A.3d 71, 86 n.7 (Pa. Super. 2020).
Therefore, because we conclude Attorney Grella’s motion to withdraw
and Anders brief were deficient, we deny her motion to withdraw, and direct
her to file either an advocate’s brief or a compliant Anders brief and petition
to withdraw within 30 days of the filing of this memorandum. Furthermore,
we direct Attorney Grella to review the legality of sentencing issue discussed
herein, in addition to any other potential claims.
Motion to withdraw as counsel denied. Jurisdiction retained.
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14We also observe that Simmons was published five months before Attorney
Grella was appointed as Appellant’s counsel, and more than one year before
she filed the Anders brief and motion to withdraw.
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