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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DOMINIC OTERO, : No. 75 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, November 25, 2015,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0000159-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DOMINIC OTERO, : No. 76 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, November 25, 2015,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0005046-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DOMINIC OTERO, : No. 77 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, November 25, 2015,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0005003-2013
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BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2016
Dominic Otero appeals from the judgment of sentence of
November 25, 2015, following revocation of his parole. Appointed counsel,
Patrick J. Connors, Esq., has filed a petition to withdraw and accompanying
Anders brief.1 We grant Attorney Connors’ withdrawal petition and affirm
the judgment of sentence.
On November 25, 2015 after a Gagnon II
hearing[2] addressing each of the above cases
[(CP-23-CR-159-2012, CP-23-CR-5003-2013, &
CP-23-CR-5046-2013)] [appellant]’s parole was
revoked and sentences of full back time were
imposed. In Case Number 5046-2013 where
[appellant] was convicted of theft by unlawful
* Retired Senior Judge assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
2
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
[W]hen 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)
(citations omitted).
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taking[Footnote 1] full backtime of 274 days of
incarceration was imposed. In Case Number 5003-
2013 where [appellant] was convicted of accidents
involving death or personal injury[Footnote 2]
(2 counts) and accidents involving damage to an
unattended vehicle[Footnote 3], an aggregate
sentence of full backtime of 274 days of
incarceration was imposed. In Case Number 159-
2012 where [appellant] was convicted of
firearms[Footnote 4] not to be carried without a
license a sentence [of] full backtime of 274 days of
incarceration was imposed. Case Number 5046-
2013 and Case Number 5003-2013 are to be served
concurrently and consecutive to the sentence
imposed in Case Number 159-2012. [Appellant]’s
violations are well-supported by the record. George
Buckley, [appellant]’s supervising parole officer
testified to [appellant]’s numerous and continuous
violations, including most recently a conviction for
retail theft and conspiracy to commit retail theft.
See N.T. 11/25/15 pp. 4-9. This was [appellant]’s
third Gagnon II proceeding in Case Number 159-
2012 and his second in the remaining cases.
[Footnote 1] 18 Pa.C.S.A. § 3921(A)
[Footnote 2] 75 Pa.C.S.A. § 3742(A)
[Footnote 3] 75 Pa.C.S.A. § 3745(A)
[Footnote 4] 18 Pa.C.S.A. § 6106(A)(1)
Trial court opinion, 1/20/16 at 1-2.
Appellant’s motion for reconsideration of sentence nunc pro tunc was
denied, and a timely notice of appeal was filed on December 22, 2015. On
December 23, 2015, appellant was directed to file a concise statement of
errors complained of on appeal within 21 days pursuant to
Pa.R.A.P. 1925(b); on January 13, 2016, appellant filed a statement of
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intent to file an Anders brief in accordance with Rule 1925(c)(4). On
January 20, 2016, the trial court filed a Rule 1925(a) opinion.
Appellant has raised the following issue for this court’s review:
“Whether the imposition of aggregate back time of 548 days was harsh and
excessive under the circumstances?” (Appellant’s brief at 3.)
When presented with an Anders brief, this Court
may not review the merits of the underlying issues
without first passing on the request to withdraw.
Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa.Super. 2007) (en banc). Before counsel is
permitted to withdraw, he or she must meet the
following requirements:
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
defendant and advise him of his right to
retain new counsel or to himself raise
any additional points he deems worthy of
the Superior Court’s attention.
[Commonwealth v. Santiago, 978 A.2d 349, 361
(Pa. 2009).]
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa.Super.
2016), quoting Commonwealth v. Martuscelli, 54 A.3d 940, 947
(Pa.Super. 2012) (footnote omitted).
Upon review, we find that Attorney Connors has complied with all of
the above requirements. In addition, Attorney Connors served appellant
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with a copy of the Anders brief and advised him of his right to proceed
pro se or hire a private attorney to raise any additional points he deemed
worthy of this court’s review. Appellant has not responded to counsel’s
motion to withdraw. Once counsel has satisfied the above requirements, it
is then this court’s duty to conduct its own review of the trial court’s
proceedings and render an independent judgment as to whether the appeal
is, in fact, wholly frivolous. Commonwealth v. Hernandez, 783 A.2d 784,
786 (Pa.Super. 2001). As we find the requirements of Anders and
Santiago are met, we will proceed to the issues on appeal.
Appellant argues that his aggregate sentence of 548 days’
imprisonment was excessive. (Appellant’s brief at 6.) Appellant argues that
he is needed at home to care for his ailing mother who is recovering from
back surgery. (Id.)
At the time he was convicted of the new charges, appellant was on
parole, not probation. The sentencing options available after probation
revocation are not the same as are available following parole revocation.
After determining that parole has been violated, the trial court only has
authority to recommit the defendant to serve out the balance of the term
from which he had been paroled. 61 Pa.C.S.A. § 6138(a)(2).3 By contrast,
3
If the parolee’s recommitment is so ordered, the parolee shall be
re-entered to serve the remainder of the term which the parolee would have
been compelled to serve had the parole not been granted and, except as
provided under paragraph (2.1), shall be given no credit for the time at
liberty on parole.
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upon revocation of probation, the court possesses the same sentencing
alternatives that it had at the time of the initial sentencing. 42 Pa.C.S.A.
§ 9771(b). See Com., Dept. of Corrections v. Reese, 774 A.2d 1255,
1262 (Pa.Super. 2001), appeal denied, 790 A.2d 1016 (Pa. 2001) (“When
a parolee is recommitted as a convicted parole violator, he is required to
serve the remainder of his unexpired [prison] term, and shall be given no
credit for the time at liberty on parole.” (internal quotation marks and
citations omitted)).
Once the trial court revoked appellant’s parole, its only sentencing
option was to recommit appellant to serve out the balance of his sentence.
As this court explained in Commonwealth v. Galletta, 864 A.2d 532
(Pa.Super. 2004), addressing a similar challenge to the sentence imposed
following parole revocation:
In Commonwealth v. Mitchell, 429 Pa.Super. 435,
632 A.2d 934 (1993), this Court set forth the
following, which guides our analysis in the present
case:
Clearly, the order revoking parole
does not impose a new sentence; it
requires appellant, rather, to serve the
balance of a valid sentence previously
imposed. See Commonwealth v.
Carter, 336 Pa.Super. 275, 281 n. 2,
485 A.2d 802, 805 n. 2 (1984).
Moreover, such a recommittal is just
that—a recommittal and not a sentence.
Abraham v. Dept. of Corrections, 150
Pa.Cmwlth. 81, 97, 615 A.2d 814, 822
(1992). Further, at a “Violation of
Parole” hearing, the court is not free to
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give a new sentence. The power of the
court after a finding of violation of parole
in cases not under the control of the
State Board of Parole is “to recommit to
jail. . . .” See Commonwealth v. Fair,
345 Pa.Super. 61, 64, 497 A.2d 643, 645
(1985), citing 61 P.S. § 314. There is no
authority for giving a new sentence with
a minimum and maximum. Id. at 61,
497 A.2d at 645. Therefore, an
appellant contesting a revocation of
parole need not comply with the
provisions of Pa.R.A.P. 2119(f) by first
articulating a substantial question
regarding the discretionary aspects of
sentencing. . . . The sole issue on appeal
is whether the trial court erred, as a
matter of law, in revoking appellant’s
parole and committing him to a term of
total confinement.
Id. at 936. See also Commonwealth v. Ware,
737 A.2d 251, 253 (Pa.Super. 1999) (relying on
Mitchell and reaffirming that “upon revocation of
parole, the only sentencing option available is
recommitment to serve the balance of the term
initially imposed”).
Id. at 538-539. “Appellant’s argument that this sentence is harsh and
excessive cannot be addressed in the context of a review of a parole
revocation, since as the Mitchell court held ‘there is no authority to give a
new sentence. . . .’” Id. at 539, quoting Mitchell, 632 A.2d at 936.
Furthermore, it is clear that the trial court did not abuse its discretion
in revoking appellant’s parole where he was arrested multiple times and
refused to comply with the conditions of supervision, including using
controlled substances. (Notes of testimony, 11/25/15 at 8.) In March 2013,
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appellant was arrested on four separate occasions. (Id.) He was detained
once for use of a firearm, in violation of the rules and regulations of his
probation/parole. (Id. at 9.) In August 2015, he was arrested on new
charges and was convicted of conspiracy to commit retail theft. (Id. at 6,
9.) The November 25, 2015 hearing was appellant’s third Gagnon II
hearing. (Id. at 11.)
For the reasons discussed above, we determine that appellant’s issues
on appeal are wholly frivolous and without merit. Furthermore, after our
own independent review of the record, we are unable to discern any
additional issues of arguable merit. Therefore, we will grant
Attorney Connors’ petition to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
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Com. v. Otero, D.
Combined Opinion