J-S04026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSUE CERVANTES :
:
Appellant : No. 988 EDA 2021
Appeal from the Judgment of Sentence Entered April 1, 2021
In the Court of Common Pleas of Chester County
Criminal Division at CP-15-CR-0001759-2009
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 16, 2022
Josue Cervantes (Appellant) appeals from the judgment of sentence
imposed after the trial court revoked his probation. Additionally, Appellant’s
counsel has filed a petition to withdraw from representation and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, we grant Counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
On January 25, 2010, a jury convicted Appellant of one count each of
criminal trespass, attempted criminal trespass, aggravated indecent assault
(without consent), aggravated indecent assault (involving someone
unconscious or unaware of the contact), indecent assault (without consent),
indecent assault (involving someone unconscious or unaware of the contact),
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* Former Justice specially assigned to the Superior Court.
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and sexual assault.1 The trial court deferred sentencing for Appellant to
undergo a mental health evaluation.
On July 7, 2010, the trial court sentenced Appellant to 6 — 12 years of
incarceration, followed by 10 years of probation. Appellant’s sentence
included the following conditions: 1) submit to a drug and alcohol evaluation
and follow treatment recommendations; 2) obtain a GED; and 3) complete the
Sex Offender Program. Sentencing Order, 7/7/10. This Court affirmed the
judgment of sentence, and the Supreme Court of Pennsylvania denied
allowance of appeal. See Commonwealth v. Cervantes, 32 A.3d 270 (Pa.
Super. July 15, 2011) (unpublished memorandum), appeal denied, 34 A.3d
81 (Pa. 2011). Thereafter, in 2012 and 2017, Appellant filed two unsuccessful
petitions for relief pursuant to the Post Conviction Relief Act (PCRA). See 42
Pa.C.S.A. §§ 9541-9546.
Including credit for time served, Appellant served his 12-year maximum
sentence. In March 2021, while Appellant served the 10-year probationary
tail, Parole Agent Joseph Cantymagli (Agent Cantymagli) reported Appellant
had violated the terms of his probation by failing to sign the Parole Board’s
Special Probation Rules and Regulations Form 325, and failing to complete sex
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118 Pa.C.S.A. §§ 3503(a)(1), 901(a), 3125(a)(1), 3125(a)(4), 3126(a)(1),
3126(a)(4) and 3124.1.
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offender treatment.2 The court held a Gagnon II3 hearing on April 1, 2021,
at which Agent Cantymagli and Appellant testified. At the conclusion of the
hearing, the court found Appellant in violation of his probation, and sentenced
him to concurrent prison terms of 1 — 10 years for his convictions of
aggravated indecent assault (without consent) and aggravated indecent
assault (involving someone unconscious or unaware of the contact). The court
awarded credit for time served from March 25, 2021, to April 1, 2021.
Appellant filed a pro se appeal on May 5, 2021.4, 5 On November 29,
2021, counsel filed an Anders brief and petition to withdraw as counsel, in
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2 Appellant refused to complete Batterers Group, Sex Offender Mod-High
Intensity, Therapeutic Community and Violence Prevention High Intensity
programs. Petition to Issue Bench Warrant, 3/5/21.
3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4 Appellant was represented by counsel when he filed the pro se notice of
appeal. Generally, hybrid representation is forbidden and pro se filings when
represented by counsel are rejected as legal nullities. See Commonwealth
v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016). However, Appellant’s
misstep is not fatal, as “this Court is required to docket a pro se notice of
appeal despite Appellant being represented by counsel.” Id. at 624. Thus,
Appellant’s appeal is properly before us.
5 On August 2, 2021, this Court issued a rule to show cause as to why the
appeal should not be quashed as untimely, where Appellant filed his pro se
notice of appeal on May 5, 2021. Counsel responded on August 11, 2021,
explaining that Appellant delivered his pro se notice of appeal to prison
authorities for mailing on April 29, 2021, and it was received and docketed by
the Clerk of Courts on May 5, 2021. Appellant’s Answer, 8/11/21. We
subsequently discharged the Rule and referred the timeliness issue to the
merits panel. Our review of the record confirms Counsel’s averments. Under
the prisoner mailbox rule, Appellant’s pro se notice of appeal was filed on April
29, 2021. See Commonwealth v. Chambers, 35 A.3d 34, 39 (Pa. Super.
(Footnote Continued Next Page)
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which he argues that Appellant’s appeal is frivolous and requests permission
to withdraw from representation. Appellant did not file a response to
Counsel’s Anders brief in this Court, but filed a pro se response to the trial
court’s Pa.R.A.P. 1925(b) order. Counsel attached Appellant’s pro se response
to the Anders brief for this Court’s review and consideration.
We first address Counsel’s motion to withdraw. Before being permitted
to withdraw, counsel must satisfy procedural and substantive requirements:
Counsel must: 1) petition the court for leave to withdraw stating
that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; 2)
furnish a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel or
raise additional arguments that the defendant deems worthy of
the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)).
Here, Counsel states that he found Appellant’s issue to be frivolous after
conducting a careful and thorough review of the record, Appellant’s file, and
applicable case law. Petition to Withdraw as Attorney of Record, 11/29/21, at
¶3. Counsel attached to his petition a copy of the letter he sent to Appellant,
in which Counsel advised Appellant that he could retain private counsel or
proceed pro se. Id. at Ex. 2. Counsel also provided Appellant with a copy of
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2011) (prisoner mailbox rule provides that pro se prisoner’s pleading is
deemed filed on the date delivered to prison authorities for mailing).
Accordingly, Appellant’s pro se notice of appeal was timely filed within 30 days
of sentencing. See Pa.R.Crim.P. 720; Pa.R.A.P. 903(a).
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the Anders brief. We thus find that Counsel satisfied the procedural
mandates for withdrawal.
With respect to the substantive requirements,
in 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.
Cartrette, 83 A.3d at 1032 (citing Santiago, 978 A.2d at 361)). If counsel
has satisfied the above requirements, it is then this Court’s duty to review the
trial court proceedings to determine whether there are any other non-frivolous
issues that the appellant could raise on appeal. Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
Instantly, Counsel’s Anders brief includes the history of the case, facts
which support Appellant’s appeal, and Counsel’s reasons for concluding that
the appeal lacks merit. See Anders Brief at 4-7. Appellant filed no response.
Upon review, Counsel has complied with the procedural and substantive
requirements of Anders and Santiago. Thus, we examine Appellant’s issue.
Counsel raises one issue on Appellant’s behalf: “Whether the sentence
imposed on April 1, 2021, by the trial court was illegal?” Anders Brief at 3.
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Appellant contends the court imposed an illegal sentence.6 He claims the court
erred in sentencing him to incarceration because he had already served his
maximum sentence. Id. at 6; see also N.T., 4/1/21, at 12.
Our scope of review following resentencing after probation revocation is
limited to the validity of the revocation proceedings, the legality of the
sentence, and the discretionary aspects of sentencing. Cartrette, 83 A.3d at
1033-34. “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.”
Commonwealth v. Giliam, 233 A.3d 863, 866-67 (Pa. Super. 2020) (citation
omitted).
“A claim that implicates the fundamental legal authority of the court to
impose a particular sentence constitutes a challenge to the legality of the
sentence.” Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010)
(en banc). “If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence must be
vacated.” Id. (quoting Commonwealth v. Watson, 945 A.2d 174, 178–79
(Pa. Super. 2008)). Likewise, a sentence that exceeds the statutory
maximum is illegal. Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa.
Super. 2003). If a court “imposes a sentence outside of the legal parameters
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6 Appellant does not challenge the sufficiency of the evidence or the court’s
determination that he violated his probation. If fact, Appellant conceded the
violation. See N.T., 4/1/21, at 7 (“I am unable to participate in sex offender
treatment because that would entitle [sic] me to admit guilt[.]”).
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prescribed by the applicable statute, the sentence is illegal and should be
remanded for correction.” Commonwealth v. Vasquez, 744 A.2d 1280,
1284 (Pa. 2000). Issues concerning the legality of a sentence are questions
of law; our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Alston, 212 A.3d 526, 528 (Pa. Super. 2019).
Here, the trial court originally sentenced Appellant to an aggregate 6 —
12 years in prison, followed by 10 years of probation. At that time, the court
did not sentence Appellant to incarceration on his two aggravated indecent
assault convictions. Specifically,
COUNT 4: Aggravated Indecent Assault [(without consent)]
Probation: 10 years to run consecutively to ct. 3.
COUNT 5: Aggravated Indecent Assault [(involving someone
unconscious or unaware of the contact)]
Probation: 10 years to run concurrently to ct. 4.
Sentencing Sheet, 7/7/10.
As noted, after serving his 12-year maximum and beginning his 10-year
probationary sentence, Appellant violated his probation by failing to comply
with conditions (included the completion of sex offender treatment). As
Appellant’s Counsel correctly points out, Commonwealth v. Wallace, 870
A.2d 838 (Pa. 2005), is controlling, and permits a court, upon revocation, to
impose any sentence available under the Sentencing Code at the time of the
original sentence. Anders Brief at 6. In Wallace, the Pennsylvania Supreme
Court emphasized that the sentencing alternatives “shall be same as were
available at the time of initial sentencing.” Wallace, 870 A.2d at 842 (quoting
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Commonwealth v. Pierce, 441 A.2d 1218, 1219 (Pa. 1982) (emphasis in
original)).
As it is well established that the sentencing alternatives available
to a court at the time of initial sentencing are all of the alternatives
statutorily available under the Sentencing Code, these authorities
make clear that at any revocation of probation hearing, the
court is similarly free to impose any sentence permitted
under the Sentencing Code and is not restricted by the bounds
of a negotiated plea agreement between a defendant and
prosecutor.
Id. at 842–43 (emphasis added).
The trial court found Appellant had violated his probation, and thus
revoked his probationary sentences for aggravated indecent assault (without
consent) and aggravated indecent assault (involving someone unconscious or
unaware of the contact). Aggravated indecent assault is a second-degree
felony, 18 Pa.C.S.A. § 3125(c)(1), and punishable by a term of imprisonment
not to exceed 10 years. See 18 Pa.C.S.A. § 1103(2). The court resentenced
Appellant to concurrent terms of 1 — 10 years of imprisonment (with credit
for time served). Thus, the revocation sentence is proper. Consistent with
the language of Section 9771(b) and the rationale of Wallace, we agree that
Appellant’s challenge to the legality of his sentence is frivolous.
We next address the issue Appellant raised in his pro se response to the
trial court’s Pa.R.A.P. 1925(b) order, which Counsel attached to his Anders
brief. See Commonwealth v. Baney, 860 A.2d 127, 129 (Pa. Super. 2004)
(explaining that after reviewing the issues raised in an Anders brief, this Court
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shall consider issues raised in a pro se brief if filed within a reasonable amount
of time).
We best discern Appellant’s issue as challenging the trial court’s
jurisdiction to revoke his probation and impose a new sentence. Appellant
argues:
Respondents illegally and unconstitutionally took [dominion] and
want of [jurisdiction] to impose a [state parole board] violation
without Mr. Cervantes entering agreement … . The
Court/Respondents lack legal authority and legal justification to
invoke jurisdiction and proceed with a V.O.P. violation … .
Respondents violated Mr. Cervantes’ Due Process Rights …
Respondents lack jurisdiction for V.O.P. violation that was not part
of the record (original sentence). Respondents are operating with
practices of fraud, innuendo, malicious prosecution, legal
servitude, coercion, deception, duress, … which is illegally
unconstitutionally during the course of business that operate as
fraud in conspiracy with Respondents under color of law … .
Pro Se Response, 5/5/21, at 6-7 (unnumbered) (brackets in original).
It is well-settled that courts of common pleas have general subject
matter jurisdiction, and Appellant developed no legal argument to the
contrary. Cf. Commonwealth v. Bethea, 828 A.2d 1066 (Pa. 2003). This
issue is frivolous.
Finally, our independent review of the record discloses no other non-
frivolous issues. Dempster, supra. As there are no meritorious issues, we
grant counsel’s petition to withdraw and affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2022
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