J-S10026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT MICHAEL MOORE
Appellant No. 1563 EDA 2014
Appeal from the Judgment of Sentence entered April 16, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No: CP-23-CR-0004291-2011
BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 12, 2015
Appellant, Robert Michael Moore, appeals from the judgment of
sentence imposed on April 16, 2014 in the Court of Common Pleas of
Delaware County following revocation of probation stemming from a 2011
conviction for retail theft, 18 Pa.C.S.A. § 3929(a)(1). According to the brief
filed by his counsel pursuant to Anders v. California, 386 U.S. 738 (1969),
Appellant contends his sentence should be vacated because the trial court
abused its discretion by denying a continuance pending resolution of an
active matter that constituted a direct violation of Appellant’s probation.1
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*
Retired Senior Judge assigned to the Superior Court.
1
Two indirect violations were also alleged in addition to the direct violation,
which was based on a new Philadelphia County case in which Appellant was
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His counsel concurrently filed a petition for leave to withdraw. For the
reasons that follow, we grant counsel’s petition for leave to withdraw and
affirm Appellant’s judgment of sentence.
The trial court provided the following procedural background:
On September 11, 2011, [Appellant] entered into a negotiated
guilty plea to retail theft, a felony of the third degree.
[Appellant] was sentenced to 6-23 months in Delaware County
Prison.
On April 3, 2013, this Court held a Gagnon II[ 2 hearing.
[Appellant] received his full back time of 508 days in Delaware
County Prison with immediate parole. On transcript 6642-2007,
Petitioner received two years[’] county probation.
On April 16, 2014, this [c]ourt held another Gagnon II hearing.
[Appellant] was sentenced to his full back time of 399 days,
concurrent to the 1-2 years SCI that [Appellant] received on
transcript 6642-2007.
On April 24, 2014, counsel for [Appellant] filed a motion for
reconsideration of sentence. This [c]ourt denied the motion via
[o]rder on May 1, 2014.
On May 15, 2014, [Appellant] filed a notice of appeal on this
transcript as well as transcript 6642-2007. This [c]ourt issued a
1925(b) order on May 16, 2014. On June 6, 2014, counsel for
[Appellant] filed a statement of intent to file an Anders brief.
_______________________
(Footnote Continued)
charged with possession of a controlled substance, heroin. Appellant’s Brief,
at 4; Commonwealth’s Brief, at 2.
2
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (holding that “A Gagnon I
hearing is a pre-revocation hearing to determine if probable cause exists
that a violation was committed. After this determination is made, a Gagnon
II hearing is conducted where the Commonwealth is required to establish
that the defendant did violate his parole/probation.” Commonwealth v.
Stafford, 29 A.3d 800, 802 n.1 (Pa. Super. 2011)).
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Trial Court Opinion, 6/16/14, at 1-2 (footnotes omitted).3 The trial court
explained that further analysis was unnecessary in light of counsel’s
announced intention to file an Anders brief. Id. at 2.
On November 20, 2014, counsel filed an Anders brief with this Court
along with a petition for leave to withdraw and a letter to Appellant advising
him, inter alia, of the right to retain other counsel or pursue his claims pro
se. In his Anders brief, counsel presents one issue that arguably supports
the appeal. Specifically, he questions “[w]hether the sentences should be
vacated and the case[] remanded because the [t]rial [c]court abused its
discretion by denying the defense a continuance[.]” Appellant’s Brief at 3.
Appellant filed a pro se response to the Anders brief by letter dated
December 7, 2014 and docketed on December 10, 2014, complaining that
the only issue he asked counsel to raise on appeal related to calculating his
time credit. The Commonwealth filed its brief on December 11, 2014,
contending the trial court did not abuse its discretion by denying a
continuance to Appellant pending disposition of a new prosecution.
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3
This appeal filed at 1563 EDA 2014 relates to transcript 6642-2007.
Appellant has filed a separate appeal at 1535 EDA 2014 relating to transcript
4291-2011. We note the trial court followed the recommendations of Adult
Probation and Parole in imposing Appellant’s sentences. Trial Court Opinion,
6/16/14, at 2 n.3. “[Appellant] also had a retail theft conviction on
transcript 5729-2006, which is not part of his current appeal.” Id. at 1 n.2.
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We may not address the merits of Appellant’s issue without first
reviewing the request to withdraw. Commonwealth v. Rojas, 874 A.2d
638, 639 (Pa. Super. 2005). As this Court recognized in Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), did not change the
procedural requirements for requesting withdrawal from representation
under Anders.
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.
Cartrette, 83 A.3d at 1032 (citing Commonwealth v. Lilley, 978 A.2d
995, 997 (Pa. Super. 2009)).
In the petition to withdraw, counsel explains his conclusion that, based
on a thorough review of the case, there are no meritorious issues to be
raised on Appellant’s behalf and that proceeding with the case would be
wholly frivolous. In addition, counsel furnished a copy of the appellate brief
to Appellant and advised Appellant of his right to retain new counsel or act
on his own behalf to raise additional arguments or points for this Court’s
consideration. We conclude counsel has satisfied the procedural
requirements set forth in Anders.
Having concluded counsel satisfied the procedural requirements of
Anders, we must ascertain whether the brief satisfied the substantive
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mandates prescribed in Anders, as refined in Santiago. In Santiago, our
Supreme Court announced:
[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
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.
In his Anders brief, counsel has included a statement of the case that
includes a procedural history of the case with citations to the record.
Appellant’s Brief at 4-5. Counsel has satisfied the first requirement.
The second required element of an Anders brief is reference to
anything in the record that counsel believes arguably supports the appeal.
Here, counsel suggests that a request for continuance of a violation hearing,
when the direct violation was to be decided on the merits 30 days later,
“seems reasonable, prudent and in the interest of judicial economy.” Id.
at 6. Counsel directs our attention to Commonwealth v. Simmons, 56
A.3d 1280 (Pa. Super. 2012), aff’d, 91 A.3d 102 (Pa. 2014), affirming a trial
court’s sua sponte grant of a continuance in revocation proceedings in order
to secure a victim’s testimony. Counsel suggests the same analysis applies
to Appellant’s case, with a continuance designed to secure better information
regarding a direct violation of Appellant’s probation. Counsel also recognizes
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that the trial court’s denial of the continuance will not be reversed absent “a
palpable and manifest abuse of discretion, or prejudice to the [Appellant].”
Id. at 7 (citing Commonwealth v. Pries, 861 A.2d 951 (Pa. Super. 2004),
appeal denied, 882 A.2d 478 (Pa. 2005)). Counsel has satisfied the second
requirement.
Counsel also has satisfied the third element of Anders, stating his
conclusion that the appeal is frivolous. Appellant’s Brief at 8. Finally,
counsel stated his reasons for concluding the appeal is frivolous. Counsel
included reference to facts of record and citation to case law holding that a
trial court’s ruling on a request for continuance is a matter of sound judicial
discretion that will not be disturbed absent abuse of discretion. Pries, 861
A.2d at 953. Counsel concluded the trial court acted within the bounds of
discretion and, therefore, the appeal is frivolous. Id. at 7-8. Counsel has
satisfied the fourth and final element of the Anders test.
Having determined the procedural and substantive requirements of
Anders are satisfied, we must conduct our own independent review of the
record to determine if the issue identified in this appeal is, as counsel
asserts, wholly frivolous, or if there are any other meritorious issues present
in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)
(“[T]he court—not counsel—then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous. If it so finds, it
may grant counsel’s request to withdraw.”).
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Again, the issue raised by Appellant asserts that the trial court abused
its discretion by denying a continuance pending resolution of an active
matter that constituted a direct violation of Appellant’s probation. As this
Court explained in Pries,
The decision of whether to grant or deny a request for a
continuance is within the sound discretion of the trial judge.
Commonwealth v. Chambers, 546 Pa. 370, 387, 685 A.2d 96,
104 (1996). In this context, our Supreme Court has defined
“abuse of discretion” as follows:
An 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 exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias,
or ill-will, as shown by the evidence or the record,
discretion is abused.
Id. The refusal to grant a continuance constitutes reversible
error only if “prejudice or a palpable and manifest abuse of
discretion is demonstrated.” Commonwealth v. Griffin, 804
A.2d 1, 12 (Pa. Super. 2002).
Pries, 861 A.2d at 953.
In its brief, the Commonwealth suggests that the purpose of a prompt
revocation hearing under Pa.R.Crim.P. 708 is to “prevent the loss of
essential witnesses or documentary evidence, and to avoid the continuance
of unnecessary incarceration or other limitations of the personal liberty of
the accused.” Commonwealth’s Brief at 3-4 (citation omitted).4 The
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4
Pa.R.Crim.P. 708(B) provides:
(Footnote Continued Next Page)
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Commonwealth also makes clear that “[i]t is constitutionally permissible for
a probation revocation hearing to be held after arrest but before
determination of a criminal charge.” Id. at 4 (citing Commonwealth v.
Kates, 305 A.2d 701 (Pa. 1973); Commonwealth v. Infante, 888 A.2d
783 (Pa. 2005)). The Commonwealth concludes that the denial of a
continuance in Appellant’s probation violation hearing in Delaware County
pending trial in Philadelphia County did not constitute an abuse of discretion
or a violation of Appellant’s federal or state constitutional rights. Id. We
agree. We find no abuse of discretion on the part of the trial court in
denying a continuance.
Appellant’s argument fails for a second reason. During Appellant’s
April 16, 2014 Gagnon II hearing, his counsel argued against a one- to
two-year state sentence as unwarranted in absence of a conviction in the
Philadelphia County case. Counsel for the Commonwealth countered that
the sentence was not based on Appellant’s non-direct or technical violations
_______________________
(Footnote Continued)
Whenever a defendant has been sentenced to probation or
intermediate punishment, or placed on parole, the judge shall
not revoke such probation, intermediate punishment, or parole
as allowed by law unless there has been:
(1) A hearing held as speedily as possible at which the
defendant is present and represented by counsel;
and
(2) A finding of record that the defendant violated a
condition of probation, intermediate punishment, or
parole.
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alone, rather, it was based on Appellant’s “entire criminal history . . . and
actually his Gagnon history,” including the fact the current hearing was
Appellant’s fourth Gagnon II hearing “for direct and technical violations.”
N.T. Hearing, 4/16/14, at 10. The trial court agreed, stating:
And I agree with the Commonwealth. It wouldn’t change my
opinion, either. And I think the fact that he shows up at the
Upper Darby office with crack cocaine is enough for me to say
he’s not amenable to rehabilitation. I think the fact that this is
[Appellant’s] fourth Gagnon II hearing, he continues to be a
problem. He continues to flaunt his ability to get away with
these things, so I am following the recommendations, and on
Transcript 6642 of 2007, on the Information A, [Appellant] is
found in violation of his probation. Probation is revoked, and
he’s receiving a new sentence of one to two years to be served
at the state correctional institution. On Transcript 4291 of 2011,
[Appellant] is found in violation of his parole, and he’s receiving
his full back-time of 399 days, which will run concurrent to
Transcript 6642 of ’07, and the bench warrant’s rescinded.
Id. at 10-11. Clearly, Appellant’s sentence was based on violations
unrelated to the pending Philadelphia proceedings and, therefore, the denial
of a continuance was of no consequence. We find no abuse of discretion on
the part of the trial court for denying a continuance pending the resolution of
charges facing Appellant in Philadelphia County. We conclude Appellant’s
issue is wholly frivolous.
Appellant’s response to the Anders brief does not alter our
determination. As noted above, Appellant complained that all he requested
of counsel was “to file for my time credit” that he believes was calculated in
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error. Appellant’s Response to Anders Brief at 1.5 Nothing in his letter
suggests the trial court abused its discretion by denying a continuance, nor
does Appellant raise any non-frivolous appealable issue in his letter.
The trial court squarely addressed the issue of back credit during the
April 16, 2014 Gagnon II hearing, during which the following exchange
took place:
TRIAL COURT: We spent a considerable amount of time at your
last Gagnon hearing, when I went over how all the time was
calculated. . . . [A]s I explained to you at that point in time, you
were trying to double-dip and that I was not permitting you to
double-dip, that you weren’t going to get credit for things that
you did in reference to this matter. So . . . we have addressed
this issue. I believe the time is calculated, and [Commonwealth
counsel], do you agree the time calculated is correct?
COUNSEL FOR COMMONWEALTH: Yes, Your Honor. That is,
indeed, correct. On the case of 4291-2011, you gave
[Appellant] no credit from April 3, 2013 to 10/6/2013. The
majority of his credit time, which has gone to a case from ’07,
which has since maxed out, and the credit time listed on page
three is the correct credit time for Case 4291 of 2011.
COUNSEL FOR APPELLANT: And Your Honor, I mean having not
read the reports, I was just making sure that [Appellant’s]
position was put on the record.
TRIAL COURT: And that’s why I’m saying it’s preserved for
appeal, if he wants to appeal it, but on the 4291, he was not
getting credit from 4/3/13 to 10/6/13, because that was going to
another case. . . . So that’s why I said he wasn’t going to be
allowed to double-dip.
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5
As reflected in the excerpt from the trial court’s June 16, 2014 opinion, the
trial court detailed the sentences with back time imposed following
Appellant’s various Gagnon II hearings. See Trial Court Opinion, 6/16/14,
at 1-2.
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Id. at 6-8.
We do not find any error in the trial court’s time credit determinations.
Appellant has not raised a meritorious issue in his response to the Anders
brief, nor do we find any other meritorious issue present in this case. The
appeal is, as counsel asserted, wholly frivolous. Therefore, we grant
counsel’s petition for leave to withdraw and affirm Appellant’s judgment of
sentence.
Counsel’s petition for leave to withdraw is granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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