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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH DAVID HOWARD, : No. 699 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, January 30, 2015,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0006928-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2016
Joseph David Howard appeals from the January 30, 2015 judgment of
sentence after he pled guilty to one count of escape and the trial court
sentenced him to 7 to 23 months’ incarceration. Lisa Y. Williams, Senior
Deputy Public Defender, has filed a petition to withdraw, alleging that the
appeal is frivolous, accompanied by an Anders brief.1 We will grant
counsel’s withdrawal petition and affirm the judgment of sentence.
The trial court provided the following factual and procedural history:
The following facts are derived from the
Affidavit of Probable Cause which was incorporated
into the record at sentencing. In September of
2014, Appellant was participating in the work release
program at the Men’s Community Corrections Center
(“Center”) in Bucks County, Pennsylvania because of
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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a prior conviction for criminal mischief. On
September 24, 2014 at approximately 3:45 P.M.,
Appellant clocked out of the Center to attend his
work placement. Appellant was required to return to
the Center by 11:30 P.M. that evening. At
11:35 P.M., an officer paged Appellant because he
had failed to return to the Center, but the officer did
not receive any response from Appellant. A
corrections officer responded to Appellant’s work site
and Appellant was not present. Appellant was then
placed on escape status.
On January 30, 2015, Appellant pled guilty to
one count of escape[Footnote 1] and was sentenced
to seven to twenty-three months[’] incarceration in
the Bucks County Correctional Facility. Appellant
then filed a post-sentence motion to modify and
reconsider sentence on February 9, 2015. This
motion was denied on February 13, 2015 and
Appellant timely filed [a] Notice of Appeal to the
Superior Court of Pennsylvania.
[Footnote 1] 18 Pa.C.S.A. § 5121(a).
18 Pa.C.S.A. § 5121(d) provides, “An
offense under this section is a felony of
the third degree where the actor was
under arrest for or detained on a charge
of felony [or] convicted of a crime.”
Trial court opinion, 4/30/15 at 1-2.
Appellant raises one issue for our review:
A. WHETHER THE SENTENCING JUDGE ABUSED
HIS DISCRETION BY REFUSING TO GIVE
APPELLANT TIME CREDIT FROM
SEPTEMBER 26, 2014 THROUGH JANUARY 29,
2015, WHEN THE APPELLANT WAS BEING
DETAINED ON BOTH THE PRESENT CASE AND
ANOTHER CASE IN WHICH APPELLANT WAS
ALREADY SERVING A SENTENCE?
Appellant’s brief at 4.
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On August 4, 2015, Attorney Williams filed in this court a petition to
withdraw as counsel and an Anders brief, wherein Attorney Williams states
that there are no non-frivolous issues preserved for our review.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
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
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pro se or raise additional
points worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
The Anders brief that
accompanies court-appointed
counsel’s petition to
withdraw . . . 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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. 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
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the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Williams’ application to withdraw, supporting
documentation, and Anders brief reveals that she has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant, advised him of his right to retain new counsel,
proceed pro se, and/or raise any additional points that he deems worthy of
this court’s attention, and attached to the Anders petition a copy of the
letter sent to appellant as required under Commonwealth v. Millisock,
873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels,
999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in
Santiago set forth the new requirements for an Anders brief, which are
quoted above, the holding did not abrogate the notice requirements set forth
in Millisock that remain binding legal precedent.”). As Attorney Williams
has complied with all of the requirements set forth above, we conclude that
counsel has satisfied the procedural requirements of Anders.
Once counsel has met her obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,
we now turn to the merits of appellant’s appeal.
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In his only issue on appeal, appellant avers that he is entitled to time
credit against his criminal mischief sentence and his escape sentence.
We find this appeal to be wholly frivolous for the reasons discussed in
the trial court’s thorough and comprehensive opinion. Specifically,
. . . [a]ppellant was still actively serving a sentence
in the Men’s Community Corrections Center in Bucks
County for his prior conviction of criminal mischief at
the time of his escape on September 24, 2014.
When [a]ppellant was subsequently arrested on
September 26, 2014, he was still serving the
sentence for the criminal mischief conviction. As the
Superior Court held in [Commonwealth v. Davis,
852 A.2d 392 (Pa.Super. 2004)], [a]ppellant is not
entitled to credit against two sentences for the
pre-sentence confinement. Thus, the time
[a]ppellant was incarcerated between September 26,
2014 and January 29, 2015 must be applied to
[a]ppellant’s original sentence for criminal mischief,
and not to [a]ppellant’s sentence for escape.
Trial court opinion, 4/30/15 at 5.
Additionally, our independent review of the entire record has not
disclosed any potentially non-frivolous issues. Therefore, we affirm on the
basis of the trial court’s April 30, 2015 opinion. Consequently, we grant
counsel’s petition to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2016
-7-
Com. v. Howard, J.
Combined Opinion