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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KENNETH JEFFCOAT
Appellant No. 3561 EDA 2015
Appeal from the Judgment of Sentence October 28, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002255-2014
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 09, 2016
Appellant, Kenneth Jeffcoat, appeals from the judgment of sentence
entered on October 28, 2015, following the revocation of his parole. In this
direct appeal, Appellant’s court-appointed counsel filed both a petition to
withdraw as counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We conclude that Appellant’s counsel complied with
the procedural requirements necessary for withdrawal. Moreover, after
independently reviewing the record, we conclude that the instant appeal is
wholly frivolous. We therefore grant counsel’s petition to withdraw and
affirm Appellant’s judgment of sentence.
We summarize the relevant factual background and procedural history
as follows. On September 9, 2014, Appellant pled guilty to possession of a
*Former Justice specially assigned to the Superior Court.
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controlled substance with intent to deliver1 and was sentenced to four to 16
months’ imprisonment. He was later alleged to be in violation of his parole
and a parole revocation hearing was held on October 28, 2015. See
Gagnon v. Scarpelli, 411 U.S. 778 (1973). At the hearing, Appellant
stipulated that he had two new convictions and, thus, was in violation of his
parole. The trial court accepted the recommendation of the Delaware
County Office of Probation and Parole that he be sentenced to serve his full
back time of 332 days. Appellant agreed with this recommendation. The
trial court also accepted his request that he be made re-entry eligible. This
appeal followed.2
Appellant’s counsel included one issue in his Anders brief:
[Whether sentencing Appellant to] another 332 days[’]
imprisonment for violating his parole [is] excessive under [the]
circumstances[?]
Anders Brief at 3.
“When presented with an Anders brief, [we] may not review the
merits of the underlying issues without first passing on the request to
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1
35 P.S. § 780-113(a)(30).
2
Appellant did not file a post-sentence motion. Appellant timely filed a
notice of appeal on November 25, 2015. The trial court ordered Appellant to
file a concise statement of errors complained of on appeal (“concise
statement”). See Pa.R.A.P. 1925(b). Appellant’s counsel filed a concise
statement alleging a frivolous appeal pursuant to Pa.R.A.P. 1925(c)(4) on
January 20, 2016. The trial court issued a Rule 1925(a) opinion on January
21, 2016.
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withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). We must first determine whether counsel completed the
necessary procedural requirements for withdrawing as counsel.
Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013).
Court-appointed counsel must satisfy certain requirements to withdraw
under Anders.
First, counsel must petition the court for leave to withdraw and
state that after making a conscientious examination of the
record, he has determined that the appeal is frivolous; second,
he must file a brief referring to any issues in the record of
arguable merit; and third, he must furnish a copy of the brief to
the [appellant] and advise him of his right to retain new counsel
or to himself raise any additional points he deems worthy of
[our] attention.
Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012),
quoting Santiago, 978 A.2d at 361. In the submitted Anders brief, 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.
Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.
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If counsel meets these requirements, it is then our responsibility “to
make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is wholly frivolous.” Santiago, 978
A.2d at 355 n.5, citing Commonwealth v. McClendon, 434 A.2d 1185,
1187 (Pa. 1981). Counsel will be permitted to withdraw if both the
procedural and substantive requirements are satisfied. In addition, we
“must conduct an independent review of the record to discern if there are
any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnote and citation omitted). In the case at bar, we find counsel has met
all the above requirements.3 We now turn to the issue raised in the Anders
brief.
Counsel’s Anders brief contends that sentencing Appellant to another
332 days of imprisonment for violating his parole is excessive under the
circumstances. Anders Brief at 3. Alleging a sentence is excessive
challenges a discretionary aspect of sentencing. Commowealth v. Ahmad,
961 A.2d 884, 886 (Pa. Super. 2008). However, upon a violation of
parole, the trial court does not impose a new sentence. Instead, a
defendant is required to serve the balance of a valid sentence that has been
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3
Appellant has not responded to the petition to withdraw as counsel.
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previously imposed. Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa.
Super. 1993). We previously determined:
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
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, 290-291 (Pa. Super. 2008)
(citations and footnote omitted).
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Here, because Appellant’s claim challenges the excessiveness of his
sentence imposed based on his parole violation, it is wholly frivolous. See
id. at 292-293 (concluding that raising a discretionary aspects of sentence
claim is not a proper attack on a parole revocation and as such, is wholly
frivolous under Anders). Because a parole-revocation court does not have
the authority to impose a new sentence and can only recommit the
defendant to serve the remaining term of the sentence already imposed,
raising the claim that his sentence is excessive is improper in this context.
See Commonwealth v. Galetta, 864 A.2d 532, 538 (Pa. Super. 2004);
Commonwealth v. Fair, 497 A.2d 643, 645 (Pa. Super. 1985).
Accordingly, Appellant’s claim is without merit. Further, we note that
although Appellant does not challenge the revocation of his parole, we
conclude the trial court did not err in doing so because Appellant was
convicted of new crimes.
After an independent review of the entire record, we see nothing that
might arguably support this appeal. The appeal is, therefore, wholly
frivolous. Accordingly, we affirm Appellant’s judgment of sentence and grant
counsel’s petition for leave to withdraw appearance.
Petition for leave to withdraw as counsel granted. Judgment of
sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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