J-S18036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
COREY JOHNSON
Appellant No. 2171 EDA 2014
Appeal from the Judgment of Sentence June 24, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000329-2013
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 11, 2015
Appellant, Corey Johnson, appeals from the June 24, 2014 judgment
of sentence revoking his parole and recommitting him to serve the balance
of his underlying sentence consecutively with another sentence in a case in
Northampton County, imposed while Appellant was on parole. In addition,
Appellant’s counsel filed a petition to withdraw as counsel with this Court,
together with a brief pursuant to Anders v. California, 386 U.S. 738
(1967) and its progeny, averring the appeal is wholly frivolous. After careful
review, we affirm and grant counsel’s petition to withdraw.
The trial court succinctly summarized the history of this case as
follows.
On or about January 3, 2013, Appellant was
arrested and charged with Possession of Drug
Paraphernalia.1 On January 10, 2013, Appellant
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entered a guilty plea to the offense, graded as a
Misdemeanor of the Third Degree, before Magisterial
District Judge Karen Devine. He was sentenced to
twelve months’ probation.
On January 16, 2013, Appellant was arrested
on a retail theft charge by the Bethlehem Police
Department. Accordingly, a warrant was issued for
his arrest in the above-captioned matter because the
new arrest constituted a violation of his probation.
On April 2, 2013, Appellant appeared before
this Court for a Gagnon II[1] hearing following his
preliminary hearing in the retail theft case.
Appellant conceded the allegations of the Adult
Probation Department. The [trial c]ourt revoked his
probation and resentenced Appellant to not less than
two nor more than twelve months’ incarceration in
Lehigh County Prison. Appellant was paroled on
June 21, 2013.
On June 25, 2013, Appellant committed
another retail theft and was again arrested by the
Bethlehem Police Department. A warrant for his
arrest was issued in the above-captioned case, but it
was later amended to include another arrest on
October 16, 2013, also in Northampton County, for
various drug charges and public drunkenness.
On June 24, 2014, a Gagnon II hearing was
held. During that hearing, Appellant conceded the
allegations of his violation of parole. His parole was
revoked and he was remanded to Lehigh County
Prison to serve the balance of his sentence,
consecutive to his sentence in Northampton County
(CR-928-2014).
---------------------------------
1
35 P.S. § 780-113(a)(32).
Trial Court Opinion, 8/19/14, at 1-2 (footnote in original).
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1
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (setting forth the procedural
requirements for probation and parole revocations).
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Appellant did not file a post-sentence motion. Appellant filed a timely
notice of appeal on July 24, 2014.2 On October 16, 2014, counsel filed a
motion to withdraw as counsel and an accompanying Anders brief.
Appellant has not filed any response.
In his Anders brief, counsel raises the following issue on Appellant’s
behalf for our review.
Whether the trial court imposed an illegal, harsh and
excessive punishment upon the defendant after a
parole-revocation hearing by recommitting the
defendant to serve the balance of his sentence on a
paraphernalia charge and running that sentence
consecutively to another sentence?
Anders Brief at 4.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, we review counsel’s Anders brief for
compliance with the requirements set forth by our Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold 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
____________________________________________
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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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.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005) and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his client. Attending the brief must be a letter that advises the client
of his 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.” Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
(internal quotation marks and citation omitted). “Once counsel has satisfied
the above requirements, 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.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Instantly, we are satisfied that counsel has complied with the technical
requirements of Anders and Santiago. Counsel carefully summarized the
history of the case and made appropriate references to the record. She
acknowledged her own review of the record, articulated the issues that could
arguably support an appeal, but stated her conclusion that the appeal is
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nevertheless frivolous. Further, she set forth the reasons upon which she
based that conclusion. Counsel has also complied with the notification
requirements described in Millisock. Since receiving notice, Appellant has
not filed any response. We therefore proceed with our independent review
of the record and the issue presented on Appellant’s behalf.
Appellant’s issue on appeal conflates a challenge to the discretionary
aspect of his sentence and a challenge to the legality of his sentence. A
claim that a sentence is harsh and excessive implicates the discretionary
aspects of a sentence. Commonwealth v. Treadway, 104 A.3d 597, 599
(Pa. Super. 2014). Additionally, Appellant challenges the running of his
sentence consecutively to his Northampton County sentence as illegal.
Anders Brief at 10. With regard to the first issue, both the trial court and
counsel point out that a discretionary aspect of sentence claim is not
cognizable in a parole revocation context. Trial Court Opinion, 8/19/14, at
3; Anders Brief at 9. We agree.
Unlike a probation revocation, a parole
revocation does not involve the imposition of a new
sentence. Indeed, there is no authority for a parole-
revocation court to impose a new penalty. Rather,
the only option for a court that decides to revoke
parole is to recommit the defendant to serve the
already-imposed, original sentence. At some point
thereafter, the defendant may again be paroled.
Therefore, the purposes of a court’s parole-
revocation hearing—the revocation court’s tasks—are
to determine whether the parolee violated parole
and, if so, whether parole remains a viable means of
rehabilitating the defendant and deterring future
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antisocial conduct, or whether revocation, and thus
recommitment, are in order. The Commonwealth
must prove the violation by a preponderance of the
evidence and, once it does so, the decision to revoke
parole is a matter for the court’s discretion. In the
exercise of that discretion, a conviction for a new
crime is a legally sufficient basis to revoke parole.
Following parole revocation and
recommitment, the proper issue on appeal is
whether the revocation court erred, as a matter of
law, in deciding to revoke parole and, therefore, to
recommit the defendant to confinement.
Accordingly, an appeal of a parole revocation is not
an appeal of the discretionary aspects of sentence.
As such, a defendant appealing recommitment
cannot contend, for example, that the sentence is
harsh and excessive. Such a claim might implicate
discretionary sentencing but it is improper in a
parole-revocation appeal. Similarly, it is
inappropriate for a parole-revocation appellant to
challenge the sentence by arguing that the court
failed to consider mitigating factors or failed to place
reasons for sentence on the record. Challenges of
those types again implicate the discretionary aspects
of the underlying sentence, not the legal propriety of
revoking parole.
Commonwealth v. Kalichak, 943 A.2d 285, 290-291 (Pa. Super. 2008)
(citations and footnote omitted). Based on these considerations we agree
Appellant’s discretionary aspect of sentence claim is frivolous.
Relative to Appellant’s assertion that his sentence was illegally made
to run consecutive to the Northampton County sentence, we conclude this
issue is also frivolous. This Court has held that a trial court may properly
order the sentence remaining to be served following a parole revocation to
run consecutive to a separate sentence imposed while the appellant was on
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parole. Commonwealth v. Ortiz, 745 A.2d 662, 665-666 (Pa. Super.
2000), appeal denied, 795 A.2d 973 (Pa. 2000); cf. Commonwealth v.
Sharpe, 665 A.2d 1194, 1196-1197 (Pa. Super. 1995) (holding that
imposition of consecutive sentences after a parole violation that were
previously ordered to run concurrently was an illegal sentence).
In light of all the foregoing, we conclude all of Appellant’s issues on
appeal are frivolous. See Santiago, supra. We therefore grant counsel’s
petition to withdraw as counsel and affirm the June 24, 2014 judgment of
sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2015
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Com. v. Johnson, C.
Combined Opinion