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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ENRIQUE HERNANDEZ
Appellant No. 1314 MDA 2016
Appeal from the Judgment of Sentence June 26, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001097-2013
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED APRIL 27, 2017
Enrique Hernandez appeals from the judgment of sentence imposed on
June 27, 2016, in the Court of Common Pleas of Lancaster County, following
revocation of his sentence of State Intermediate Punishment (SIP).1
Hernandez had pled guilty to three counts of delivery of a controlled
substance (heroin), and one count each of possession with intent to deliver a
controlled substance (heroin) and criminal use of a communication facility.2
He received an aggregate sentence of four to nine years’ incarceration
followed by two years of probation. Counsel has filed an Anders3 brief,
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1
Hernandez’s original sentence was two years of SIP followed by three years
of probation.
2
35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 7512(a), respectively.
3
Anders v. California, 386 U.S. 738 (1967).
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asserting all issues are frivolous.4 Concurrent with the Anders brief,
counsel has also filed a motion to withdraw as counsel. In this timely
appeal, Hernandez raises one issue: he seeks credit for the correct amount
of time served to his sentence. After a thorough review of Hernandez’s
appellant’s brief,5 relevant law, and the certified record, we grant counsel’s
motion to withdraw and affirm the judgment of sentence.
As stated above, Hernandez pled guilty to a variety of drug charges
and was initially sentenced to a term of SIP, a portion of which included drug
rehabilitation/treatment. However, Hernandez failed to complete that
sentence and was expelled from the program.6
Subsequently, on June 27, 2016, Hernandez was sentenced to a term
of four to nine years’ incarceration, followed by two years of probation.
Although the trial judge instructed that Hernandez be credited with a certain
amount of time served, Hernandez believed he was not credited with all the
time to which he was entitled. Accordingly, on July 26, 2016, Hernandez
filed a pro se notice of appeal. Following an October 2, 2016, Grazier7
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4
In addition, counsel has identified two possible issues of ineffective
assistance of trial counsel, and another issue regarding RRRI eligibility. We
will briefly discuss the last issue in the decision.
5
The Commonwealth did not submit a brief.
6
The certified record before us is silent as to why Hernandez was expelled
from the SIP program.
7
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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hearing, counsel was appointed. On October 25, 2016, counsel filed a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal, claiming the
trial court had insufficiently specified the time credit dates. Independently,
the Department of Corrections discovered the error and corrected it.
Subsequently, counsel filed a petition to correct the record and a
request to file a statement of intent to file an Anders brief. The trial court
issued an order directing the record reflect the time issue had been
corrected. Counsel then filed the statement of intent to file an Anders brief.
In this court, counsel has filed an Anders brief, indicating the time credit
issue had been resolved, and mentioning other possible issues.
We are guided by the following principles:
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
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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:
[I]n the Anders brief that accompanies court-appointed
counsel's petition to withdraw, 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.
[Commonwealth v.] Santiago, 978 A.2d [349] at 361 [(Pa.
2009)].
Commonwealth v. Tukhi, 149 A.3d 881, 885-86 (Pa. Super. 2016).
Our review of counsel’s petition leads us to conclude that counsel has
complied with the technical requirements recited above. Our independent
review of the record leads to the conclusion that the appeal is wholly
frivolous.
Initially, Hernandez’s sole concern was to obtain full credit for time
served against his sentence. The certified record confirms the record has
been corrected and Hernandez has been appropriately credited with time
served. Because the issue has been resolved, this aspect of the appeal is
indeed wholly frivolous.
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In addition to the one issue Hernandez wanted addressed, counsel also
addressed Hernandez’s RRRI8 ineligibility. Counsel appropriately noted that
Hernandez was convicted in New York, in 1985, of assault with intent to
cause serious injury, thereby disqualifying Hernandez from the RRRI
program. See 61 Pa.C.S. § 4503 Definitions (Eligible Offender).
Accordingly, any challenge to RRRI ineligibility would be wholly frivolous.
Finally, counsel reported that any challenge to Hernandez’s removal
from the SIP program, or challenge to the discretionary aspects of his
sentence were waived by the failure to raise a timely objection or to file a
post-sentence motion. Accordingly, any such claim can only be raised
through the Post Conviction Relief Act.9
Because the certified record amply supports counsel’s assertion that all
issues are wholly frivolous, Hernandez is not entitled to any additional relief.
Motion to withdraw as counsel is granted. Judgment of sentence
affirmed.
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8
Recidivism Risk Reduction Incentive, 61 Pa.C.S. § 4501, et seq.
9
We note that counsel does not suggest any actual problems in either of
these areas. Rather he simply noted two issues that are often raised on
appeal, and why they cannot be raised instantly.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2017
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