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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BYRON DESSISO, :
:
Appellant : No. 1096 EDA 2015
Appeal from the Judgment of Sentence February 27, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0003526-2010
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 22, 2017
Appellant, Byron Dessiso, appeals from the Judgment of Sentence
entered following the revocation of his probation. Appellant’s counsel filed
an Application to Withdraw as Counsel and a Brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), stating that the appeal is wholly frivolous. After
careful review, we grant counsel’s request to withdraw, vacate Appellant’s
Judgment of Sentence in part, and affirm Appellant’s Judgment of Sentence
in part.
The facts, as gleaned from the certified record, are as follows. On
March 7, 2010, police arrested Appellant after police recovered a loaded .22-
caliber firearm from his jacket pocket. Following a bench trial, the trial court
convicted Appellant of Persons Not to Possess Firearms, Carrying a Firearm
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Without a License, and Carrying a Firearm in Public in Philadelphia. 1 On
August 13, 2010, the trial court sentenced Appellant to concurrent terms of
six years’ probation for two of the offenses, but imposed no penalty for
Carrying a Firearm in Public in Philadelphia, 18 Pa.C.S. § 6108.
On February 27, 2015, Appellant entered two open guilty pleas on
unrelated charges, which constituted probation violations. The trial court,
also sitting as the violation of probation (“VOP”) court on the same day,
found Appellant had violated his probation and revoked his probation. The
court resentenced Appellant to an aggregate term of 2½ to 5 years’
incarceration, as follows: (1) 2½ to 5 years’ incarceration for Persons Not to
Possess Firearms; (2) a concurrent term of 2½ to 5 years’ incarceration for
Carrying a Firearm Without a License; and (3) a concurrent term of 2 to 4
years’ incarceration for Carrying a Firearm in Public in Philadelphia.
Appellant filed a timely Notice of Appeal. Appellant filed a statement
pursuant to Pa.R.A.P. 1925 as ordered.2 On September 22, 2016,
Appellant’s counsel filed a Brief pursuant to Anders and Santiago, supra,
which included a request to withdraw.
Before we address the merits of this appeal, we must determine
whether counsel has complied with the procedures provided in Anders and
1
18 Pa.C.S. § 6105; 18 Pa.C.S. § 6106; and 18 Pa.C.S. § 6108,
respectively.
2
The trial court did not file a Pa.R.A.P. 1925(a) Opinion.
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its progeny. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). Counsel who wishes to withdraw must file a petition to
withdraw stating that he or she has made a conscientious examination of the
record and determined that there are no meritorious issues to be raised on
appeal. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Also, counsel must provide a copy of the Anders Brief to the appellant and
inform him of his right to proceed pro se or retain different counsel. Id.
See also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).
The substance of the 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, 978 A.2d at 361.
Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous. See Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.
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Super. 2007) (en banc); Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (footnote and citation omitted).
Counsel in the instant appeal has complied with the above
requirements. We, thus proceed to conduct an independent review to
ascertain if the appeal is indeed wholly frivolous.
Our review of the record indicates that there is one issue of merit not
raised by Appellant or his counsel in the Anders Brief. As the
Commonwealth has noted, the VOP court “did not have authority to impose
a new [VOP] sentence on the conviction for carrying a firearm on public
property or public street in Philadelphia because it had originally imposed ‘no
further penalty’ for that offense.” Appellee’s Brief at 9 (citing
Commonwealth v. Williams, 997 A.2d 1205, 1208 (Pa. Super. 2010)).
“Revocation of a probation sentence is a matter committed to the
sound discretion of the trial court and that court's decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
discretion.” Williams, supra at 1208. “An appellate court may affirm,
modify, vacate, set aside or reverse any order brought before it for review,
and may remand the matter and direct the entry of such appropriate order,
or require such further proceedings to be had as may be just under the
circumstances.” 42 Pa.C.S. § 706. However, “a probation revocation court
does not have the authority to re-sentence an offender on a final guilt-
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without-punishment sentence after the period for altering or modifying the
sentence has expired.” Williams, supra at 1209.
After reviewing the record and the relevant case law, we agree with
the Commonwealth that the VOP court imposed an illegal sentence of 2 to 4
years’ incarceration for Carrying a Firearm in Public in Philadelphia. Because
the trial court had originally imposed a sentence of no further penalty for the
violation, and the 30-day period for altering or modifying a sentence had
elapsed, the VOP court was without authority to impose a term of
incarceration for that conviction.
We also agree with the Commonwealth that correction by this Court
will not disturb the trial court’s overall sentencing scheme. See Appellee’s
Brief at 9-10. The VOP court sentenced Appellant to an aggregate term of
2½ to 5 years’ incarceration, which included the improper concurrent term of
2 to 4 years’ incarceration for Carrying a Firearm in Public in Philadelphia.
Since vacating the concurrent illegal sentence would not change the length
of Appellant’s incarceration or disturb the trial court’s overall sentencing
scheme, we need not remand this case for resentencing. See
Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006).
Judgment of Sentence imposed for violation of 18 Pa.C.S. § 6108
vacated. Judgment of Sentence affirmed in all other respects. Application
to Withdraw as Counsel granted. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
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