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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT HARRIS :
:
Appellant : No. 723 EDA 2018
Appeal from the Judgment of Sentence December 3, 2012
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010414-2009
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 30, 2019
Robert Harris appeals from the judgment of sentence entered following
the revocation of his probation. His counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and a petition to withdraw as
counsel. We affirm and grant counsel’s petition to withdraw.
In May 2011, a jury found Harris not guilty of murder and conspiracy.1
However, it was unable to reach a verdict on firearms not to be carried without
a license, carrying a firearm on public streets in Philadelphia, and possession
of instruments of crime (“PIC”).2 Subsequently, Harris pled guilty in November
2011 to firearms not to be carried without a license and carrying firearms in
public in Philadelphia, and the Commonwealth nolle prossed the PIC charge.
____________________________________________
1 18 Pa.C.S.A. §§ 2502 and 903, respectively.
2 18 Pa.C.S.A. §§ 6106(a)(1), 6108, and 907, respectively.
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The trial court then sentenced Harris to 11½ to 23 months’ incarceration
followed by five years’ probation, with immediate parole.
At that point, prison authorities were supposed to transport Harris to
New Jersey, as New Jersey had lodged a detainer for murder and related
charges, all arising from a separate incident. However, they instead
erroneously released him from prison, and he absconded. He was not
apprehended until approximately one year later, in November 2012. During
that year, Harris did not report to the Philadelphia Probation Department or
to New Jersey authorities.
In December 2012, the trial court held a violation of probation (“VOP”)
hearing, and revoked Harris’s probation. The court resentenced him to three
and a half to seven years’ incarceration for firearms not to be carried without
a license, and one to two years’ incarceration for carrying firearms in public in
Philadelphia. The sentences were consecutive. Harris filed a motion to
reconsider sentence, which the trial court denied. Harris did not file an appeal
at that time.
In May 2013, Harris filed a pro se Post Conviction Relief Act petition,
arguing, in part, that his counsel was ineffective for failing to file a direct
appeal. The petition languished for several years, apparently at least in part
because the trial judge retired. The court eventually re-assigned it to a
different judge who granted it in February 2018, and re-instated Harris’s direct
appeal rights nunc pro tunc. Harris then filed this appeal.
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Counsel’s Anders Brief identifies three issues, which we set forth
verbatim:
1. Whether the appellant’s VOP sentence of 4 ½ to 9 years
SCI was unreasonable, harsh, excessive and unjust for
technical violations.
2. Whether VOP counsel was ineffective in his
representation of the appellant of the VOP Hearing for not
requesting an appeal?
3. Whether the appellant was given a Gagnon3 1 and
Gagnon 2 Hearing.
Anders’ Br. at 4.
Before we assess the substance of the Anders brief, we must first
determine whether counsel’s request to withdraw meets certain procedural
requirements. See Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa.Super. 2007) (en banc). An Anders brief that accompanies a request 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.
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3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel must
also provide a copy of the Anders brief to the client, and a letter that advises
the client of the right to “(1) retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points that the appellant deems
worthy of the court’s attention in addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa.Super. 2014). If counsel has satisfied these requirements, we then
conduct “a full examination” of the record “to decide whether the case is
wholly frivolous.” Commonwealth v. Dempster, 187 A.3d 266, 271
(Pa.Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).
Here, in the Anders brief, counsel provides a procedural and factual
history of the case, with citations to the record, discusses the issues arguably
supporting the appeal, and explains why counsel concludes those issues are
frivolous. Anders Br. at 5-15. Counsel served a copy of the Anders brief upon
Harris, Anders Br. at Cert. of Service, and his letter to Harris advised him
that he may raise any additional issues before this Court pro se or with private
counsel. Petition to Withdraw as Counsel, filed May 1, 2019. The Anders brief
satisfies the necessary requirements.
Harris has not filed any response to the Anders brief, either pro se or
through private counsel. We will therefore address the issues counsel has
identified.
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The first issue raised in the Anders brief would challenge the VOP
sentence as excessive. This is a challenge to the discretionary aspects of
sentence.
There is no absolute right to appellate review of the discretionary
aspects of a sentence. Commonwealth v. Cartrette 83 A.3d 1030, 1042
(Pa.Super. 2013) (en banc). Rather, we engage in a four-part analysis before
addressing such a challenge. We must determine whether: (1) appellant has
filed a timely notice of appeal; (2) properly preserved the issue at sentencing
or in a motion; (3) appellant’s brief includes a Pa.R.A.P. 2119(f) statement;
and (4) there is a substantial question that the sentence is not appropriate
under the Sentencing Code. See 42 Pa.C.S.A. § 9781(b); Commonwealth v.
Austin, 66 A.3d 798, 808 (Pa.Super. 2013).
Here, these requirements are met. However, the issue is nonetheless
frivolous because the court did not find Harris in violation for failure to pay
fines and sentence him on that basis. Rather, it found him in violation for
absconding and imposed sentence based, in part, on its conclusion that he
posed a danger to the public.
We review a challenge to the discretionary aspects of sentencing for an
abuse of discretion. Commonwealth v. Bullock, 170 A.3d 1109, 1123
(Pa.Super. 2017). Pursuant to Pennsylvania statute 42 Pa.C.S.A. § 9771(b),
upon revocation of probation “the sentencing alternatives available to the
court shall be the same as were available at the time of initial sentencing.”
Further, a VOP court may impose a sentence of total confinement if it finds
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that “(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 (3) such a sentence is essential to vindicate
the authority of the court.” 42 Pa.C.S.A. § 9771(c). Moreover, “[a] sentencing
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. Schutzues, 54
A.3d 86, 99 (Pa.Super. 2012).
Contrary to the Anders brief’s statement, the trial court did not find
Harris in violation of probation for failure to pay fines. Rather, the court found
him in violation for absconding and not reporting to either the Philadelphia
probation department or New Jersey authorities for a year. The court said as
much when it imposed the VOP sentence:
You really didn’t comply at all with what you were supposed
to do and report even once. Obviously, what was paramount
in his mind was avoiding the murder prosecution and the
homicide prosecution in New Jersey. So I don’t think he
made a mistake. I think he knew exactly what he was doing.
Trial Court Opinion, filed May 1, 2019, at 10 (quoting N.T., 12/3/12, at 4-5).4
____________________________________________
4 Counsel included a copy of the December 3, 2012 transcript in the
reproduced record. However, the certified record does not include the
transcript. In its Pa.R.A.P. 1925(a) opinion, the trial court included quotations
from the transcript. Here, we will rely on the facts from the Rule 1925(a)
opinion, as no one disputes their accuracy.
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The court further explained that it was sentencing Harris based on its
conclusion that he poses a danger to the public: “You’re a danger in society,
a danger [to] the people of Pennsylvania.” Id. at 9 (quoting N.T., 12/3/12, at
6). This issue is frivolous.
The next issue identified in the Anders brief states that VOP counsel
was ineffective for failing to appeal. This issue is moot, as Harris obtained an
appeal nunc pro tunc.
The final issue claims the trial court did not hold Gagnon I and Gagnon
II hearings. It appears that the Anders brief is the first time such a claim is
raised. Therefore, the claim is waived. Pa.R.A.P. 302 (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal”). In
any event, we agree with counsel that, on the merits, this claim is frivolous.
The procedures for revoking probation are as follows:
When a parolee or probationer is detained pending a
revocation hearing, due process requires a determination at
a pre-revocation hearing, a Gagnon I hearing, that
probable cause exists to believe that a violation has been
committed.
Where a finding of probable cause is made, a second, more
comprehensive hearing, a Gagnon II hearing, is required
before a final revocation decision can be made.
Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa.Super. 2009)
(internal citations omitted). At a Gagnon II hearing, the court must make
two determinations: (1) “Whether the [probationer] has in fact acted in
violation of one or more conditions of his [probation]”; and (2) whether the
probationer should “be recommitted to prison or should other steps be taken
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to protect society and improve chances of rehabilitation.” Id. (quoting
Gagnon, 411 U.S. at 784).
Further, this Court has found that a probationer must complain of the
lack of a Gagnon I hearing before probation is revoked and, if he has not
done so, the “probationer will not be heard to complain later.”
Commonwealth v. Perry, 385 A.2d 518, 520 (Pa.Super. 1978) (en banc)
(incarceration following probation revocation stems from a decision by the
revoking court made after an adequate hearing; after revocation of probation,
the denial of appellant’s preliminary hearing right no longer has any relation
to his incarceration).
Here, the docket lists two VOP hearings – one taking place on November
30, 2012, and the second on December 3, 2012. The trial court details the
evidence presented at the second hearing, as follows:5
[After his 2011 sentencing hearing, Harris] was given credit
for thirty (30) months' time served and was to be
immediately paroled, with the sheriff to transport to
Elizabeth, New Jersey (Monmouth County) where [Harris]
was facing another unrelated murder charge.
However, the following day, November 8, 2011, [Harris]
was released from the Curran-Fromhold Correctional Facility
(CFCF) in Philadelphia, PA, in error. [Harris] absconded and
was not found until November 11, 2012, when he was
stopped in Delaware County, PA, following a motor vehicle
offense. During the intervening time period from November
8, 2011 to November 11, 2012, [Harris] failed to report to
the New Jersey authorities for his open murder case and
failed to report to the Philadelphia Probation Department or
____________________________________________
5As noted above, we will use the trial court’s facts, as no one disputes the
evidence presented at the hearing.
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communicate with his probation officer. On December 12,
2012 [Harris] appeared before Judge Wogan at his Violation
of Probation (VOP) Hearing at which time the court heard
testimony from both [Harris] and his probation and parole
officer, Charles Sabo.
Probation and Parole Officer Charles Sabo testified as
follows. In addition to confirming the above chronology of
events, Mr. Sabo testified that [Harris] had an open warrant
related to a murder charge in New Jersey and the authorities
there were ready to extradite [Harris] to New Jersey. His
recommendation to the court was for [Harris’] probation to
be revoked due to his absconding.3 The Commonwealth
recommended revocation and resentencing for [Harris’]
failure to report to probation in Philadelphia with special
concern given to the fact that [Harris] absconded while he
had open murder charges pending in New Jersey.
3 A review of the record does not indicate that a
Gagnon II was prepared or submitted by the Adult
Probation and Parole Department to Judge Wogan for
his review prior to or at the time of the Violation of
Probation Hearing.
[Harris] testified and did not dispute the factual chronology
of events that led to his erroneous release from Curran-
Fromhold Correctional Facility. More importantly, [Harris]
acknowledged that during the entire year period that he had
absconded, he had failed to report to the offices of the
Philadelphia Probation and Parole Department as was
required as part of his sentence. [Harris] testified as follows:
THE COURT: [To the appellant] Is there anything you
would like to say?
APPELLANT: All right. Like I never intended to run. I
was willing to do my probation. It's just that out there,
I wasn't running from probation, I was trying to get
myself together to go to Jersey. I never, never, never,
ever, ever, like, bucked out of probation.
[N.T., 12/3/12,] pp. 5-6.
Further, regarding his failure to appear for court with
respect to his murder charges in New Jersey, [Harris]
testified as follows:
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THE COURT: Well, what steps were you taking to go
over to [New] Jersey?
APPELLANT: I needed money. I didn't have a lawyer
and I had been accused. I didn't know what was going
on over in Jersey.
Id, p. 6.
At the conclusion of the Violation of Probation Hearing,
Judge Wogan found that [Harris] had violated the terms of
his probation for failing to report, as required, to the
Philadelphia Probation and Parole Department and further
finding that [Harris] posed a danger to the people of
Pennsylvania. Judge Wogan therefore revoked [Harris’]
probation and resentenced [Harris] to three and one-half
(3½) to seven (7) years for Firearms Not to be Carried
Without a License and One (1) to two (2) years for Carrying
Firearms in Public in Philadelphia, for an aggregate sentence
of four and one-half (4¼) to nine (9) years' incarceration.
1925(a) Op. at 4-5 (some internal citations omitted).
This testimony makes it clear that the court in fact held a Gagnon II
hearing at which it found the Commonwealth established a violation of
probation occurred and that incarceration was required. The court heard
testimony from Harris’ probation officer, including testimony that Harris never
reported to probation. The Court also heard from Harris, who attempted to
explain why he did not report. Even if the November 30 hearing was not a
Gagnon I hearing, Harris could get no relief on appeal for a failure to hold a
Gagnon I hearing. See Perry, 385 A.2d at 520. The third issue is also
frivolous.
Our independent review of the record has not uncovered any non-
frivolous issues for appeal.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/19
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