J-S59010-15
2016 PA Super 33
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BROOKE STRASSER
Appellant No. 1687 WDA 2014
Appeal from the Order Entered September 12, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000807-2003
CP-25-CR-0002638-2001
BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.
OPINION BY BOWES, J.: FILED FEBRUARY 16, 2016
Brooke Strasser appeals from the judgment of sentence imposed by
the trial court after it revoked her probation following its finding that she
violated its terms. Counsel has filed a petition to withdraw from
representation and a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
initially entered an order directing counsel to ensure that the transcripts
from the probation and sentencing herein were made a part of the certified
record on appeal. Those transcripts have now been supplied. We now deny
counsel’s petition to withdraw and remand with instructions.
At case number 2638-2001, the Commonwealth charged Appellant, in
its criminal information, with four felony counts of obtaining a controlled
*
Former Justice specially assigned to the Superior Court.
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substance by misrepresentation, 35 P.S. § 780-113(a)(12). She pled guilty
at that case number to each count on or about May 13, 2003.1 On July 21,
2003, the court imposed a five year intermediate punishment sentence on
the first count and a consecutive period of five years probation on the
remaining counts. The probationary sentences on counts two through four
were concurrent with one another. On August 12, 2004, the court revoked
Appellant’s intermediate punishment sentence. It resentenced Appellant
that same day to one to two years incarceration on the second count of
obtaining a controlled substance by misrepresentation as well as four years
probation.2 The court also imposed a consecutive period of five years
probation on count one. In addition, the court sentenced Appellant to five
years probation on the remaining charges concurrent to count one.
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1
The plea acknowledgment form indicates that she was advised that the
maximum term of incarceration was five years. This appears to have been
incorrect. 35 P.S. § 780-113(f)(1). However, Appellant can no longer
challenge her guilty plea.
2
Count two was for procuring oxycodone, a Schedule II narcotic.
Commonwealth v. James, 46 A.3d 776, 779 n.6 (Pa.Super. 2012).
Therefore, a question arises as to whether Appellant’s sentence at that time
was lawful based on her pleading guilty on the basis that the maximum
sentence she could receive was five years. Under 35 P.S. § 780-113(f)(1), a
person who is guilty of obtaining a controlled substance by
misrepresentation is subject to a fifteen year maximum penalty if the
substance is a Schedule I or II narcotic. In contrast, a person can only be
given a maximum penalty of five years for other Schedule I, II, or III drugs
which are not cocaine or over one thousand pounds of marijuana. See 35
P.S. § 780-113(f)(1.1)-(2). Since oxycodone is a Schedule II narcotic,
Appellant’s maximum sentence was fifteen years rather than five.
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Subsequently, on May 5, 2006, the court again revoked Appellant’s
probation at each count. Appellant admitted to using crack cocaine on
March 30, 2006, in violation of her probation. She also changed her
residence without the permission of her parole officer. Finally, Appellant
also acknowledged using Oxycontin on December 28, 2005. The court
imposed on that same date, at count 1, a sentence of two and one-half to
five years incarceration and re-imposed consecutive sentences of five years
probation at counts two through four. Thus, Appellant was given an
aggregate sentence of two and one-half to five years imprisonment to be
followed by fifteen years probation at the 2001 case number.
Appellant appealed from that sentence as well as the sentence
imposed that same date for case number 807-2003. A panel of this Court
found her two issues, each related to sentencing, to be waived.
Commonwealth v. Yacobozzi-Strasser, 1035 WDA 2006 (unpublished
memorandum) (filed September 7, 2007). Appellant filed a counseled PCRA
petition, alleging that counsel was ineffective in failing to preserve her
sentencing issues. The court denied that petition after an evidentiary
hearing and this Court affirmed. Commonwealth v. Yacobozzi-Strasser,
1102 WDA 2008 (unpublished memorandum) (filed July 21, 2009).
At case number 807-2003, the Commonwealth charged Appellant with
five counts of theft by unlawful taking and five counts of access device fraud.
The crimes occurred between July 17, 2003 and August 7, 2003.
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Specifically, Appellant stole cash payments made by customers at the
Holiday Inn Express where she was then employed and charged the
customers’ credit cards. The total amount of theft was approximately $980.
The grading for counts one, two, four, and five was a misdemeanor of the
second degree. The remaining charges were graded as first-degree
misdemeanors. Appellant pleaded guilty to these offenses and was
sentenced on July 21, 2003, for counts six through ten for a probationary
period of five years. The court imposed the sentences consecutively for an
aggregate probationary sentence of twenty-five years. These sentences
were imposed in addition to Appellant’s July 21, 2003 sentence at case
number 2638-2001.
On August 12, 2004, as with the 2001 case, the court revoked
Appellant’s probation. The court re-imposed consecutive five-year
probationary sentences. The court also revoked her probation and re-
sentenced Appellant on May 5, 2006 in conjunction with her 2001 case. As
noted, Appellant appealed from that sentence and unsuccessfully litigated a
PCRA petition relative to her sentences.
Thereafter, in February 2014, Appellant was arrested on new felony
charges in Crawford County, Pennsylvania, for attempting to acquire a
controlled substance and criminal use of a communication facility. She was
sentenced in that case on April 30, 2014. On September 12, 2014, the court
in this matter conducted a revocation of probation proceeding. Appellant
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admitted to using Xanax and Methadone without a valid prescription, as well
as heroin, in violation of the terms of her probation. Further, she
acknowledged the Crawford County matter.3
At case number 2638-2001, the court revoked Appellant’s probation at
counts two, three, and four. It also revoked Appellant’s probation at counts
six through ten at case number 807-2003. For the 2001 case, the court
imposed a sentence of eleven and one-half to twenty-three months at count
two and a consecutive period of five years probation for count three. The
court added a concurrent five year probationary term for the fourth count.
With respect to the 2003 case, the court entered a consecutive period of
three years probation on count six. It also imposed concurrent three year
probationary sentences for counts seven through ten. Hence, Appellant’s
aggregate judgment of sentence is eleven and one-half to twenty-three
months incarceration to be followed by eight years probation.
Appellant timely filed a motion to reconsider on September 22, 2014.
The court denied that motion the following day and Appellant timely
appealed on October 10, 2014. The court directed Appellant to file and
serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on
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3
Appellant also had pled guilty and been sentenced for two other Erie
County cases involving theft.
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appeal. Counsel filed a statement of intent to file an Anders brief and the
court indicated that because of that fact no opinion was necessary.
Appellant’s counsel has now filed a petition to withdraw and an
accompanying Anders brief.4 In her brief, counsel contends that there are
no non-frivolous issues to be reviewed and sets forth an issue that arguably
could support the appeal as “whether the Appellant’s sentence is manifestly
excessive, clearly unreasonable and inconsistent with the objectives of the
Sentencing Code?” Anders brief at 3.
Since we do not consider the merits of an issue raised in an Anders
brief without first reviewing a request to withdraw, we turn to counsel’s
petition to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030
(Pa.Super. 2013) (en banc). In order to be permitted to withdraw, counsel
must meet three procedural requirements: 1) petition for leave to withdraw
and state that, after making a conscientious examination of the record,
counsel has concluded that the appeal is frivolous; 2) provide a copy of the
Anders brief to the defendant; and 3) inform the defendant that he has the
right to retain private counsel or raise, pro se, additional arguments that the
defendant deems worthy of the court’s attention. Id.
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4
Appellant is represented by a different member of the Erie County Public
Defender’s Office than the individual from that office who represented her at
her revocation and sentencing hearings.
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Counsel’s petition to withdraw provides that she made a conscientious
review of the record and concluded that there are no non-frivolous issues.
Counsel informed Appellant that she was withdrawing and furnished her with
copies of both the petition to withdraw and the Anders brief. Further,
counsel instructed Appellant that she has the right to retain new counsel or
can proceed pro se and raise any issues she believes this Court should
consider. Accordingly, counsel has complied with the procedural aspects of
Anders.
Since counsel adhered to the procedural dictates of Anders, we now
examine whether counsel’s Anders brief meets the substantive elements of
Santiago. Pursuant to Santiago, 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, supra at 361.
Counsel has included an extraordinarily brief description of the factual
and procedural history of this matter, setting forth only that Appellant’s
probation was revoked on September 12, 2014, and the judgment of
sentence imposed at the revocation hearing. She has provided a Pa.R.A.P.
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2119(f) statement pertaining to the discretionary aspects of Appellant’s
sentence and avers that Appellant’s appeal is wholly frivolous.
According to counsel, the sentencing court relied on the sentencing
guidelines, which we note do not apply to revocation proceedings,
Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).
Counsel submitted that claims that a sentencing court failed to consider or
inadequately considered certain sentencing factors does not raise a
substantial question for this Court’s review. Counsel’s statement in this
regard is imprecise. This Court has differentiated claims where a person
asserts that the court completely failed to consider applicable sentencing
statutes, holding that such issues present a substantial question for our
review. In contrast, this Court has held that the distinct claim that the court
did not adequately consider mitigating factors did not raise a substantial
question. See Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8
(Pa.Super. 2013) (discussing this Court’s subtle distinction in determining
whether a substantial question was raised in a host of cases). Counsel adds
that the sentencing court considered 42 Pa.C.S. § 9721(b), which applies to
sentencing. Counsel, nevertheless, does not address 42 Pa.C.S. § 9771, a
statutory provision pertaining to revocation sentencing proceedings. See
Commonwealth v. Crump, 995 A.2d 1280 (Pa.Super. 2010).
Since counsel has not cited pertinent case law, addressed specifically
applicable statutory law, nor applied that case law and statutory authority to
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the facts of this case, we decline to permit counsel to withdraw at this stage.
We direct that counsel file either a merits brief or a compliant Anders brief
that discusses case law regarding probation revocation sentences and 42
Pa.C.S. § 9771, and applies that law to the statements placed on the record
by the sentencing court, in order to show that Appellant’s appeal is wholly
frivolous. Counsel shall file the appropriate brief within forty-five days of
remand.
Counsel’s petition to withdraw denied. Case remanded with
instructions. Jurisdiction retained.
Judge Donohue did not participate in this decision.
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