J-S60019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BLAIR RUCKER
Appellant No. 3401 EDA 2015
Appeal from the Judgment of Sentence October 21, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006507-2013
CP-23-CR-0004508-2014
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED OCTOBER 03, 2016
Blair Rucker appeals from the judgment of sentence imposed October
21, 2015, in the Delaware County Court of Common Pleas. The trial court
revoked Rucker’s parole on charges of retail theft in two separate cases, and
sentenced him to serve back time. Contemporaneous with this appeal,
Rucker’s counsel seeks to withdraw from representation and has filed an
Anders brief,1 which identifies a challenge to the appropriateness of his
sentence. For the reasons below, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
J-S60019-16
The relevant facts and procedural history underlying this appeal are as
follows. At each docket, Rucker entered a negotiated guilty plea to one
count of retail theft, graded as a misdemeanor of the second degree. At
Docket No. 6507-2013, he was sentenced, on October 31, 2013, to a term
of one month to 23 months’ imprisonment. He later violated the terms of
his parole and, following a Gagnon II2 hearing on December 17, 2014, was
sentenced to full back time of 657 days, but, granted immediate parole upon
his completion of a county prison program. At Docket No. 4508-2014,
Rucker was sentenced, on October 23, 2014, to time served to 23 months’
imprisonment.
Subsequently, Rucker violated the terms of his parole in both cases,
and proceeded to a Gagnon II hearing on October 21, 2015. At the
hearing, he stipulated to the violations, and the trial court sentenced him to
full back time, with release only after he served the maximum date: (1) 524
days at Docket No. 6507-2013, and (2) 583 days at Docket No. 4508-2014.
The court directed the sentences run concurrently to one another. This
timely appeal followed.3
____________________________________________
2
See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3
On December 10, 2015, the trial court ordered Rucker to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After requesting and being granted an extension of time, on February 11,
2016, Rucker’s counsel filed a statement of his intent to file an
Anders/McClendon brief pursuant to subsection (c)(4). See Pa.R.A.P.
1925(c)(4).
-2-
J-S60019-16
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any
of the substantive issues raised on appeal. Commonwealth v. Bennett,
124 A.3d 327, 330 (Pa. Super. 2015). Here, our review of the record
reveals counsel has substantially complied with the requirements for
withdrawal outlined in Anders, supra, and its progeny. Specifically,
counsel requested permission to withdraw based upon his determination that
the appeal is “wholly frivolous,”4 filed an Anders brief pursuant to the
dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),
furnished a copy of the Anders brief to Rucker and advised Rucker of his
right to retain new counsel or proceed pro se. Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Moreover, our
review of the record reveals no correspondence from Rucker supplementing
the Anders brief. Accordingly, we will proceed to examine the record and
make an independent determination of whether the appeal is wholly
frivolous.
The only issue identified in counsel’s Anders brief challenges the
appropriateness of his sentence. He asserts the offense he was arrested for,
and which constituted a violation of his parole, was a misdemeanor of the
third degree, which carried a maximum sentence of one year imprisonment.
____________________________________________
4
See Application to Withdraw Appearance, 5/13/2016, at ¶ 3.
-3-
J-S60019-16
See Anders Brief at 6. Further, he claims he is “severely mentally ill and
was so at the time of his offenses,” and this was a factor the court should
have taken into consideration at sentencing. Id.
Our review of a parole revocation hearing and concomitant sentence is
well-established:
Unlike a probation revocation, a parole revocation does not
involve the imposition of a new sentence. Commonwealth v.
Mitchell, 429 Pa.Super. 435, 632 A.2d 934, 936 (1993).
Indeed, there is no authority for a parole-revocation court to
impose a new penalty. Id. Rather, the only option for a court
that decides to revoke parole is to recommit the defendant to
serve the already-imposed, original sentence. Id. …
Therefore, the purposes of a court’s parole-revocation
hearing—the revocation court’s tasks—are to determine whether
the parolee violated parole and, if so, whether parole remains a
viable means of rehabilitating the defendant and deterring future
antisocial conduct, or whether revocation, and thus
recommitment, are in order. Mitchell, 632 A.2d at 936, 937. …
Following parole revocation and recommitment, the proper
issue on appeal is whether the revocation court erred, as a
matter of law, in deciding to revoke parole and, therefore, to
recommit the defendant to confinement. Mitchell, 632 A.2d at
936. Accordingly, an appeal of a parole revocation is not
an appeal of the discretionary aspects of sentence. Id.
As such, a defendant appealing recommitment cannot
contend, for example, that the sentence is harsh and excessive.
Galletta, 864 A.2d at 539. Such a claim might implicate
discretionary sentencing but it is improper in a parole-revocation
appeal. Id. Similarly, it is inappropriate for a parole-revocation
appellant to challenge the sentence by arguing that the court
failed to consider mitigating factors or failed to place reasons for
sentence on the record. Commonwealth v. Shimonvich, 858
A.2d 132, 135 (Pa. Super. 2004). Challenges of those types
again implicate the discretionary aspects of the underlying
sentence, not the legal propriety of revoking parole. Id.
-4-
J-S60019-16
Commonwealth v. Kalichak, 943 A.2d 285, 290–291 (Pa. Super. 2008)
(emphasis supplied).
First, we note the grading of the offense which precipitated the
revocation of Rucker’s parole sentences is irrelevant. As the Kalichak Court
explained, “the only option for a court that decides to revoke parole is to
recommit the defendant to serve the already-imposed, original sentence.”
Id. at 290. Likewise, Rucker’s claim that the trial court failed to consider his
mental health issues before ordering him to serve his full back time invokes
a challenge to the discretionary aspects of sentencing, an issue that is not
appropriate in an appeal from a parole revocation sentence. See id. at 291.
Accordingly, we conclude Rucker has failed to present any viable claim for
our review.
Because we agree with counsel’s assessment that this appeal is wholly
frivolous, we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
-5-
J-S60019-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2016
-6-