J-S12038-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VINCENT ROMEO, :
:
Appellant : No. 1697 EDA 2015
Appeal from the Judgment of Sentence May 6, 2015,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0004247-2013
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VINCENT ROMEO, :
:
Appellant : No. 1699 EDA 2015
Appeal from the Judgment of Sentence May 6, 2015,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0005445-2013
BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED March 21, 2016
Vincent Romeo (Appellant) appeals from the judgments of sentence
entered following the revocation of his probation and parole.1 In addition,
Appellant’s counsel has filed a petition to withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
1
This Court consolidated the appeals by order dated July 28, 2015.
*Retired Senior Judge assigned to the Superior Court.
J-S12038-16
Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s petition to
withdraw and affirm Appellant’s judgments of sentence.
On September 9, 2013, Appellant entered a negotiated guilty plea to
one count of possession of a controlled substance at docket number CP-23-
CR-0004247-2013 (4247-2013), and one count of possession of a controlled
substance at docket number CP-23-CR-0005445-2013 (5445-2013). At
docket number 4247-2013, Appellant was sentenced to time served to one
year of incarceration and placed on immediate parole, and at docket number
5445-2013, he was sentenced to a consecutive term of six months of
probation. On August 27, 2014, Appellant was found in violation of his
probation and parole and was resentenced to serve backtime of 254 days at
docket number 4247-2013 and a consecutive term of six months of
probation at docket number 5445-2013.
Appellant was eventually re-paroled, but at a Gagnon II hearing2 held
on May 6, 2015, Appellant stipulated that he again was in violation of his
probation and parole.3 Appellant was sentenced to serve backtime of 69
days at docket number 4247-2013, followed by a term of 11½ to 23 months
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, 801 n.1 (Pa. Super. 2011); see
also Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3
It appears Appellant’s violations were technical in nature.
-2-
J-S12038-16
of incarceration at docket number 5445-2013. This consolidated appeal
followed.
In this Court, Appellant’s counsel filed both an Anders brief and a
petition to withdraw as counsel. Accordingly, 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.
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:
Accordingly, we 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
-3-
J-S12038-16
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
above requirements.4 Once “counsel has met these 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.’” Commonwealth v. Flowers, 113
A.3d 1246, 1248 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354
n.5).
Counsel presents one issue that arguably supports this appeal:
“Whether the aggregate sentence imposed on [Appellant] is harsh and
excessive under the circumstances?” Anders Brief at 2. This issue presents
a challenge to the discretionary aspects of Appellant’s sentence.
Preliminarily, we note the following with respect to Appellant’s
sentence imposed at docket number 4247-2013 following the revocation of
his parole:
4
Appellant has not responded to counsel’s petition to withdraw.
-4-
J-S12038-16
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
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, 290-91 (Pa. Super. 2008)
(citations and footnote omitted). Thus, to the extent that Appellant’s claim
challenges the excessiveness of his sentence imposed based on his parole
-5-
J-S12038-16
violation, it is frivolous. See id. at 292-93 (concluding that the appellant’s
claim that his recommitment following his parole revocation was “harsh and
excessive in light of his circumstances” was “wholly frivolous” because the
“claim is a purported attack on the discretionary aspects of a sentence,”
which the appellant “has no right to raise,” as “[i]t is not a proper attack on
a parole revocation”).
Regarding Appellant’s sentence imposed at docket 5445-2013
following the revocation of his probation, we observe that it is within this
Court’s scope of review to consider challenges to the discretionary aspects of
an appellant’s sentence in an appeal following a revocation of probation.
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006). An
appellant challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test.
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
Appellant timely filed notices of appeal. Although Appellant did not file
a post-sentence motion at either docket number, he arguably preserved his
-6-
J-S12038-16
claim at sentencing.5 Further, the Anders brief does contain a 2119(f)
statement. Thus, we now consider whether Appellant has raised a
substantial question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Griffin, 65 A.3d at 935 (citation and quotation marks
omitted).
5
The following exchange occurred at the conclusion of the May 6, 2015
hearing:
[Appellant]: Yes, so that’s -- I got to do 11½ months after the
69 days?
[Appellant’s Counsel]: Yes.
[Appellant]: Oh man. And I have the right to appeal this?
[Appellant’s Counsel]: Yes.
[Appellant]: I would like to do that.
The Court: You’re welcome to your appeal, sir, this matter is
over.
N.T., 5/6/2015, at 6-7.
-7-
J-S12038-16
In the 2119(f) statement, counsel represents that he “believes that an
issue of arguable merit exists as to whether the aggregate sentence is harsh
and excessive under the circumstances since these cases involved only
misdemeanors.” Anders Brief at 5. Assuming arguendo that this claim
raises a substantial question, we bear the following in mind.
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.
In determining whether a sentence is manifestly excessive,
the appellate court must give great weight to the
sentencing court’s discretion, as he or she is in the best
position to measure factors such as the nature of the
crime, the defendant’s character, and the defendant’s
display of remorse, defiance, or indifference.
Upon revoking probation, a sentencing court may choose
from any of the sentencing options that existed at the time of
the original sentencing, including incarceration. [U]pon
revocation [of probation] ... the trial court is limited only by the
maximum sentence that it could have imposed originally at the
time of the probationary sentence. However, 42 Pa.C.S.[]
§ 9771(c) provides that once probation has been revoked, a
sentence of total confinement may only be imposed if any of the
following conditions exist[s]:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely
that he will commit another crime if he is not imprisoned;
or
-8-
J-S12038-16
(3) such a sentence is essential to vindicate the authority
of the court.
In addition, in all cases where the court resentences an
offender following revocation of probation ... the court shall
make as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the
sentence imposed [and] [f]ailure to comply with these provisions
shall be grounds for vacating the sentence or resentence and
resentencing the defendant. A trial court need not undertake a
lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.
Commonwealth v. Colon, 102 A.3d 1033, 1043-44 (Pa. Super. 2014)
(citations and quotation marks omitted). Finally, we note that “[t]echnical
violations can support revocation and a sentence of incarceration when such
violations are flagrant and indicate an inability to reform.” Commonwealth
v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007).
Upon review, we discern no abuse of discretion in the revocation
court’s decision to impose a consecutive term of 11½ to 23 months of
incarceration as a result of Appellant’s probation violation. 6 The revocation
court adopted the recommendation of the Office of Adult Probation and
Parole in sentencing Appellant and, in support of its sentence, explained that
Appellant “has a continuing history of non-compliance by failing to report,
failing to enter into treatment and fail[ing] to make payment towards fines
6
In so doing, we stress that “[a]n abuse of discretion may not be found
merely because an appellate court might have reached a different
conclusion” than that reached by the trial court. Commonwealth v. Perry,
32 A.3d 232, 236 (Pa. 2011).
-9-
J-S12038-16
and costs.” N.T., 5/6/2015, at 5. The record demonstrates that the
revocation court reasonably concluded that probation was ineffective in
rehabilitating Appellant and that total confinement was necessary to
vindicate the authority of the court.
Based on the foregoing, we agree with counsel that Appellant’s
challenge to the discretionary aspects of his sentence is frivolous. Moreover,
we have conducted “a full examination of the proceedings” and conclude that
“the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248. Thus,
we affirm the judgments of sentence and grant counsel’s petition to
withdraw.
Judgments of sentence affirmed. Petition to withdraw granted.
Judge Olson joins.
Judge Mundy concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2016
- 10 -