J-S57027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARLEY GIFFORD
Appellant No. 778 EDA 2015
Appeal from the Judgment of Sentence February 19, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006464-2011
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARLEY GIFFORD
Appellant No. 780 EDA 2015
Appeal from the Judgment of Sentence February 19, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006030-2011
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 21, 2015
Harley Gifford brings these appeals from the judgments of sentence
imposed on February 19, 2015, in the Court of Common Pleas of Delaware
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County, following the revocation of her probation in the underlying cases.
Concomitant with this appeal, counsel has filed an Anders1 brief and
petition seeking to withdraw as counsel. The single issue identified in the
Anders brief is a challenge to the discretionary aspects of the probation
violation sentence. Based upon the following, we affirm the judgments of
sentence and grant the petition for leave to withdraw.
The trial court has provided a thorough summary of the background of
this case, and therefore we recite only the details that are necessary for
purposes of this discussion. See Trial Court Opinion, 4/30/2015, at 1–11.
On January 31, 2012, Gifford entered negotiated guilty pleas in two
cases that included multiple counts of burglary and conspiracy,2 docketed in
the Court of Common Pleas of Delaware County at Docket No. 6030 of 2011
and Docket No. 6464 of 2011. On June 27, 2012, the trial court imposed
the following sentences:
At Docket No. 6030 of 2011 —
Burglary – 2 years’ intermediate punishment followed by 5
years’ probation
Burglary – 2 years’ intermediate punishment followed by 5
years’ probation
Burglary – 3 years’ probation
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1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009).
2
See 18 Pa.C.S. §§ 3502, 903, respectively.
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Conspiracy – 3 years’ probation
The sentences for the first two burglaries were ordered to run concurrently.
The probation sentences were ordered to run consecutively to each other
and with the other two sentences.
At Docket No. 6464 of 2011 –
Burglary – 2 years’ intermediate punishment followed by
5 years’ probation
Burglary – 2 years’ intermediate punishment followed by
5 years’ probation
These sentences were ordered to run concurrently with each other and with
the sentence imposed at Docket No. 6030 of 2011. Therefore, for both
cases, the aggregate sentence was a 2-year term of state intermediate
punishment followed by an 11-year term of probation.
On February 19, 2015, Gifford stipulated to violating the probation
sentences imposed at Docket Nos. 6030 of 2011 and 6464 of 2011, by new
burglary conviction and absconding from supervision. As a result, the trial
court revoked her probation and imposed the following sentence:
At Docket No. 6030 of 2011 –
Burglary – 2 to 10 years’ incarceration
Burglary – 2 to 10 years’ incarceration
Burglary – 3 years’ probation
Conspiracy – 2 years’ probation
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The above sentences were ordered to run consecutively and, therefore, the
aggregate sentence was 4 to 20 years’ incarceration followed by 5 years’
probation.
At Docket No. 6464 of 2011 –
Burglary – 2 to 10 years’ incarceration
Burglary – 2 to 10 years’ incarceration
Both of the above sentences were ordered to run consecutively and,
therefore, the aggregate sentence was 4 to 20 years’ imprisonment.
The trial judge ordered that the sentences in both cases run
concurrently. Accordingly, for both cases, the total probation revocation
sentence was 4 to 20 years’ incarceration, followed by a 5-year probationary
term. This timely appeal followed.
Prior to addressing the issues identified in this appeal, we must review
counsel’s petition to withdraw. See Commonwealth v. Cartrette, 83 A.3d
1030, 1032 (Pa. Super. 2013) (en banc) (“Initially, we note that we may not
address the merits of the issue raised on appeal without first reviewing the
request to withdraw.”).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349, 361 (Pa. 2009). The 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
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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. Counsel also must provide a copy of the Anders brief to
the appellant. Attending the brief must be 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.” Commonwealth v. Nischan, 2007 PA Super
199, 928 A.2d 349, 353 (Pa. Super. 2007); see
Commonwealth v. Daniels, 2010 PA Super 112, 999 A.2d 590,
594 (Pa. Super. 2010); Commonwealth v. Millisock, 2005 PA
Super 147, 873 A.2d 748, 751-52 (Pa. Super. 2005).
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014).
Here, our review of the record reveals counsel has complied with the
requirements for withdrawal. Specifically, counsel filed a petition for leave to
withdraw, in which he states his belief that the appeal is frivolous, and filed
an Anders brief pursuant to the dictates of Santiago, supra, 978 A.2d at
361. Counsel has provided a copy of the letter he mailed to Gifford, advising
her of her right to retain new counsel or proceed pro se, and the letter to
Gifford reflects counsel’s enclosure of a copy of the Anders brief. Moreover,
our review of the record reveals no response from Gifford. Therefore, we
proceed “to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
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frivolous.” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super.
2015) (quotations and citation omitted). In so doing, we review not only the
issues identified by appointed counsel in the Anders brief, but examine all
of the proceedings to “make certain that appointed counsel has not
overlooked the existence of potentially non-frivolous issues.” Id. at 1249
(footnote omitted).
The issue framed in the Anders brief is as follows: “Whether the
aggregate sentence of 4 to 20 years imprisonment imposed upon Ms. Gifford
is harsh and excessive under the circumstances?” Anders Brief at 4. As
such, the Anders brief sets forth a discretionary sentencing claim.
“[T]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v.
Crump, 2010 PA Super 101, 995 A.2d 1280, 1282 (Pa.Super.
2010); 42 Pa.C.S. § 9781(b). Rather, an “[a]ppeal is permitted
only after this Court determines that there is a substantial
question that the sentence was not appropriate under the
sentencing code.” Crump, supra at 1282. In determining
whether a substantial question exists, this Court does not
examine the merits of the sentencing claim. Commonwealth v.
Tuladziecki, 513 Pa. 508, 522 A.2d 17 (Pa. 1987).
In addition, “issues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by
presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Commonwealth v. Kittrell,
2011 PA Super 60, 19 A.3d 532, 538 (Pa. Super. 2011).
Furthermore, a defendant is required to 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. Naranjo,
2012 PA Super 183, 53 A.3d 66, 72 (Pa. Super. 2012).
Cartrette, supra, 83 A.3d at 1042.
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Here, Gifford did file a timely notice of appeal.3 However, Gifford
failed to properly preserve her discretionary aspects of sentencing claim at
sentencing or in a timely-filed motion to modify sentence pursuant to
Pa.R.Crim.P. 708(E). Moreover, the Anders brief does not contain a Rule
2119(f) statement, and the Commonwealth has objected to its absence.
Accordingly, Gifford has waived this claim for review. See Commonwealth
v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008). (“[W]hen a court
revokes probation and imposes a new sentence, a criminal defendant needs
to preserve challenges to the discretionary aspects of that new sentence
either by objecting during the revocation sentencing or by filing a post-
sentence motion.”); see also Commonwealth v. Montgomery, 861 A.2d
304, 308 (Pa. Super. 2004) (“Where an appellant fails to comply with
Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived for
purposes of review.”).
Nevertheless, in light of the Anders brief, we will address Gifford’s
sentencing claim. See Kalichak, supra, 943 A.2d at 291–292 (addressing
discretionary aspects of probation revocation sentence presented in Anders
brief even though no post sentence motion filed). See also
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3
We note counsel, in response to the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, filed a
statement pursuant to Pa.R.A.P. 1925(c)(4), indicating that he intended to
file an Anders brief on appeal. See Statement of Matters Complained of on
Appeal, 4/7/2015.
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Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (“Where
counsel files an Anders brief, this Court has reviewed the matter even
absent a separate Pa.R.A.P. 2119(f) statement.”).
The Anders brief avers that “even after [Gifford] was found in
violation of her probation, she stated that she realized the mistakes she has
made in her life and was working to correct them [and] 4 to 20 years
imprisonment is harsh and excessive under these circumstances.” Anders
brief at 8, citing N.T., 2/19/2015, at 10. To the extent Gifford raises a
substantial question by claiming that the revocation court failed to consider
mitigating circumstances,4 the record belies her claim.
Our standard of review is as follows:
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) (citation
omitted), appeal denied, ___ A.3d ___ (Pa. Super. 2015).
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4
See Commonwealth v. Swope, ___ A.3d ___, ___ [2015 PA Super 196]
(Pa. Super. 2015) (“This Court has also held that ‘an excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.’”) (citation omitted).
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“Upon revocation the sentencing alternatives available to the court
shall be the same as were available at the time of initial sentencing[.]” 42
Pa.C.S. § 9771(b).
Thus, if the original offense was punishable by total confinement,
such a penalty is available to a revocation court, subject to the
limitation that the court shall not impose total confinement
unless it finds that: (1) the defendant has been convicted of
another crime; (2) the defendant's conduct indicates a likelihood
of future offenses; or (3) such a sentence is necessary to
vindicate the court's authority.
Kalichak, supra, 943 A.2d at 289.
Here, the trial court revoked Gifford’s probation and properly
sentenced her to total confinement as Gifford stipulated to the probation
violation.
Moreover, the trial court sentenced Gifford within the statutory limits,5
and below the recommendations of her probation officer. As the trial court
explained:
This court further directed that its [probation revocation]
sentences at bar were to be served concurrently to one another.
Thus, [Gifford] stemming from her probation violations was
sentenced in the aggregate for Nos. 6030-11 and 6464-11 to
four (4) through twenty (20) years incarceration at a state
correctional institution, followed by five (5) years state
probation. N.T. 2/19/15, pp. 26-28. See Certificates of
Imposition of Judgment of Sentence, Nos. 6030-11 and 6464-11,
dated February 19, 2015.
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5
The underlying crimes to which Gifford pleaded guilty were all felonies of
the first degree, punishable by a maximum term of imprisonment of 20
years. See 18 Pa.C.S. § 1103(1).
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Defendant Gifford’s supervising Board agent recommended she
be sentenced anew on the revocation of her probations in the
aggregate to a ten and a half (10.5) through twenty-one (21)
year sentence of imprisonment, effective the date of imposition
and concurrent to [Gifford’s] newest incarceration term (No.
3352-14). N.T. 2/19/15, pp. 4-5. Despite his suggestion that the
sentences at bar be served concurrent to that of No. 3352-14,
the net impact of the agent’s recommendation was Defendant
Gifford serving five and a half (5.5) years imprisonment
additional to that of her more recent conviction (No. 3352-14).
N.T. 2/19/15, pp.5, 28-29.
Although this court opted instead to direct that [Gifford’s
probation revocation] sentences be served consecutive to her
newest incarceration term, the sentences were intentionally
structured contrary to the agent’s suggestion and the
Commonwealth’s concurring argument so she would serve a
minimum imprisonment of just four (4) years beyond that
mandated per her more current conviction under docket No.
3352-14. See Certificates of Imposition of Judgment of
Sentence, Nos. 6030-11 and 6464-11, dated February 19, 2015.
See also N.T. 2/19/15, pp. 4-5, 6-7, 27-29.
Trial Court Opinion, 4/30/2015, at 10–11.
On this record, we would discern no abuse of discretion. Moreover, we
detect no other issues that would sustain an appeal in this case. See
Flowers, supra. Therefore, we agree with counsel’s assessment that the
appeal is wholly frivolous. Accordingly, we affirm Gifford’s judgments of
sentence and grant counsel’s petition for leave to withdraw as counsel.
Judgments of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Stabile, J., joins the memorandum.
Mundy, J., concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
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