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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY G. BLANK, :
:
Appellant : No. 1792 EDA 2014
Appeal from the Judgment of Sentence Entered April 24, 2014
in the Court of Common Pleas of Bucks County,
Criminal Division, at No(s): CP-09-CR-0002351-2007
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 20, 2015
Gary G. Blank (Appellant) appeals from his judgment of sentence of 30
to 60 months of imprisonment following his violation-of-probation (VOP)
hearing. Counsel has filed a petition to withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence
and grant the petition to withdraw.
In 2007, Appellant was sentenced to 11½ to 23 months of
incarceration, followed by ten years of probation, after he pled guilty to
counts of theft by deception and possession of a firearm by person
prohibited. He did not file a direct appeal.
*Retired Senior Judge assigned to the Superior Court.
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Following a bench trial in June 2012, Appellant was convicted at docket
number CP-09-CR-0006778-2011 of four different theft charges, access
device fraud, and criminal conspiracy resulting from Appellant’s taking over
$200,000 from a trust fund that his deceased wife had established for the
benefit of their minor daughter.1
In October 2012 at the instant docket number, the trial court granted
a motion for a VOP hearing based upon the new convictions. Although the
hearing was scheduled to take place in December 2012, it was continued
repeatedly for various reasons, including the failure (twice) of authorities to
transport Appellant from state prison for the hearing, the similar failure to
present Appellant for a video conference, and Appellant’s request to appear
at the hearing in person with retained counsel.
The Gagnon II hearing2 ultimately was held on April 24, 2014. The
trial court found that Appellant had violated the terms of his probation and
sentenced Appellant to 30 to 60 months of incarceration, with 19 months of
credit for time served. Thereafter, Appellant filed a motion to proceed pro
1
This Court affirmed Appellant’s resulting judgment of sentence, and our
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Blank, 100 A.3d 310 (Pa. Super. 2014) (unpublished
memorandum), appeal denied, 101 A.3d 784 (Pa. 2014).
2
“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)
(citation omitted), see also Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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se and a notice of appeal. The trial court granted the motion and Appellant
proceeded with his appeal pro se.
Because this Court determined that the trial court granted the motion
to proceed pro se without holding the waiver colloquy required by
Pa.R.Crim.P. 121(C) and Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998), we remanded the case for a Grazier hearing. After having to
reschedule the hearing several times due to video equipment difficulties and
Appellant’s health-related unavailability,3 the trial court received
correspondence from Appellant indicating his desire to proceed with counsel.
The trial court appointed counsel, and both counsel and the trial court
complied with Pa.R.A.P. 1925.
In this Court, Appellant’s counsel filed a petition to withdraw her
representation of Appellant and an Anders brief.
The following principles guide our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
3
Appellant testified at the VOP hearing that he was diagnosed with bladder
cancer during his incarceration.
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If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[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.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above.4 Therefore, we now have the
responsibility “‘to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
4
Appellant has not responded to counsel’s petition to withdraw.
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frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.
2015) (quoting Santiago, 978 A.2d at 354 n. 5).
Counsel has set forth one issue of arguable merit:
Whether the [trial] court erred in finding that Appellant’s
Gagnon hearing was timely held when said hearing was held
more than a year after the violating conviction and over a month
after the period in which Appellant was eligible for parole on said
violating offense, thus preventing him from being eligible to be
paroled at his minimum?
Anders Brief at 5 (some formatting altered).
We begin with an examination of the applicable law.
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.
Pa.R.Crim.P. 708(B) (emphasis added). “The bolded language has been
interpreted as requiring a probation violation hearing within a reasonable
time. In determining whether a VOP hearing is held within a reasonable
period, we examine ‘the length of the delay; the reasons for the delay; and
the prejudice resulting to the defendant from the delay.’” Commonwealth
v. Wright, 116 A.3d 133, 137 (Pa. Super. 2015) (quoting Commonwealth
v. Woods, 965 A.2d 1225, 1227 (Pa. Super. 2009)).
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In examining the reasons for the delay, “[t]he court should not fault
the Commonwealth for delays resulting from the Department of Corrections’
inability to find, transport, or house defendants in their custody. Similarly, a
court should not attribute to the Commonwealth delays caused by the
defendant.” Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa.
Super. 2010) (citations omitted). In considering the prejudice prong, we
bear the following in mind.
Prejudice in this context has been interpreted as being
something which would detract from the probative value and
reliability of the facts considered, vitiating the reliability of the
outcome itself. One specific purpose of our rule in requiring a
prompt revocation hearing is to avoid such prejudice by
preventing the loss of essential witnesses or evidence, the
absence of which would contribute adversely to the
determination. Another is to prevent unnecessary restraint of
personal liberty. If a defendant is already incarcerated on the
charges that triggered the probation revocation, he cannot claim
the delay in holding his revocation hearing caused him any loss
of personal liberty.
Id. (citations and quotation marks omitted).
The trial court offered the following analysis of Appellant’s claim of
error:
In the instant case, [Appellant] was sentenced on
September 17, 2012 and the violation hearing took place on
April 24, 2014. [Appellant’s] revocation hearings were continued
a total of four (4) times. Three (3) of these continuances were a
direct result of the Department of Corrections’ failure to
transport [Appellant] or ensure he was available for a video
conference (December 12, 2013, April 12, 2013, and July 22,
2013). [Appellant] directly requested the remaining delay,
despite the fact that he had a significant amount of time prior to
make this request, as the first violation hearing was scheduled
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for December 12, 2012 and this request for a continuance for an
attorney and to appear in person was made on September 26,
2013. The Bucks County Probation and Parole Department was
proactive in filing a new Motion for Hearing on Violation of
Probation/Parole following each and every continuance due to
either the Prison’s failure to transport [Appellant], produce
Defendant for video conference, or [Appellant’s] individual
request for a continuance. Furthermore, Brandon Sondag,
[Appellant’s] probation/parole officer, testified that the probation
and parole department was prepared to go forward on these
hearings at each and every listing had [Appellant] been present.
These circumstances compel us to conclude that the
Commonwealth cannot be charged for these delays.
***
At the hearing, defense counsel claimed that had there
been no delay in the proceedings, there was a possibility that
[Appellant] could have been released on parole after serving the
minimum sentence imposed on Case No. 6778-2011. …
[Appellant] served this minimum sentence as of February 26,
2014. [Appellant] claimed that his application for parole was
pending the outcome of this case. Thus, [Appellant] is claiming
the prejudice occurred from February 26, 2014 to the date of the
violation hearing, April 24, 2014. We ordered [Appellant’s]
sentence on this violation to be served concurrently with the
sentence he was then serving on Case No. 6778-2011.
Furthermore, he was given credit for time served from the date
he was incarcerated on these new charges that underlie the
violation. As such, on the date of the violation hearing in
consideration of our sentencing order, he had technically already
served nineteen (19) months of this new sentence. Even if this
violation hearing had taken place directly following his
conviction, he still would be serving the same amount of time, as
no further violations were submitted at the hearing which would
cause us to contemplate a higher sentence. We note that the
argument that he would have been granted parole on or closely
after he served the minimum requirements of his sentence is
purely speculative, especially considering his lengthy criminal
history.
Supplemental Trial Court Opinion, 5/27/2015, at 4-6.
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The record supports the trial court’s determination that the delay was
not the result of a lack of diligence on the part of the Commonwealth, and
that Appellant did not suffer prejudice of a result of the delay. Accordingly,
we conclude that Appellant’s issue challenging the timing of his Gagnon
hearing is devoid of merit.
Moreover, we have conducted “a full examination of the proceedings”
and conclude that “the appeal is in fact wholly frivolous.”5 Flowers, 113
A.3d at 1248. Thus, we affirm the judgment of sentence and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2015
5
We have done so bearing in mind that that our scope of review on appeal
from a sentence imposed following revocation of probation is limited to (1)
the validity of the proceedings, and (2) the legality and discretionary aspects
of the sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1033 (Pa.
Super. 2013) (en banc).
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