J-S04011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL A. KRAVITZ,
Appellant No. 2484 EDA 2016
Appeal from the Judgment of Sentence July 8, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006757-2014
BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2017
Appellant, Michael A. Kravitz, appeals from the judgment of sentence
imposed on July 8, 2016, in the Delaware County Court of Common Pleas
following the revocation of Appellant’s parole on the charge of simple
assault. Appellant’s counsel has filed a petition to withdraw representation
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern
withdrawal from representation on direct appeal. Appellant has not filed a
pro se response to counsel’s petition to withdraw. Following our review, we
grant counsel’s petition to withdraw and affirm the judgment of sentence.
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*
Former Justice specially assigned to the Superior Court.
J-S04011-17
The relevant facts and procedural history are as follows. Appellant
entered a negotiated guilty plea to simple assault graded as a second degree
misdemeanor and was sentenced on December 15, 2014, to incarceration
for three to twenty-three months. Appellant was granted parole. Appellant
violated the terms of his parole, and following a Gagnon II1 hearing on July
8, 2016, was sentenced to full back time of 534 days. The court granted
parole upon Appellant’s completion of a county prison program, Prep II.
This timely appeal followed.
Before we address any question raised on appeal, we first must
resolve appellate counsel’s request to withdraw. Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). See
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (stating,
“When faced with a purported Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.”).
There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on appeal. The procedural mandates are
that counsel must:
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1
Gagnon v. Scarpelli, 411 U.S. 778 (1978). Inquiry by our
prothonotary’s office to the trial court revealed that there are no notes of
testimony for the July 8, 2016 Gagnon II hearing or for any other
proceeding. We have utilized, inter alia, the Gagnon II hearing report of
the parole agent dated June 15, 2016, that was presented to the court on
July 8, 2016.
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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 [his client]; and 3) advise [his client] that he or
she has the right to retain private counsel or raise additional
arguments that the [client] deems worthy of the court’s
attention.
Cartrette, 83 A.3d at 1032 (citation omitted).
In addition, our Supreme Court, in Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), stated that an Anders brief 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.
Santiago, 978 A.2d at 361. The Supreme Court reaffirmed the principle
that indigents “generally have a right to counsel on a first appeal, [but] . . .
this right does not include the right to bring a frivolous appeal and,
concomitantly, does not include the right to counsel for bringing such an
appeal.” Id. at 357 (citation omitted). The Court stated:
In the Court’s view, this distinction gave meaning to the Court’s
long-standing emphasis on an indigent appellant’s right to
“advocacy.” . . . As the Court put it, “although an indigent whose
appeal is frivolous has no right to have an advocate make his
case to the appellate court, such an indigent does, in all cases,
have the right to have an attorney, zealous for the indigent’s
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interests, evaluate his case and attempt to discern nonfrivolous
arguments.”
Santiago, 978 A.2d at 357–358 (citation omitted).
Counsel has substantially complied with the requirements for
withdrawal outlined in Anders and Santiago. Specifically, counsel
requested to withdraw based upon his determination that the appeal is
“wholly frivolous,” and he stated his reasons for that conclusion with
appropriate support. Application to Withdraw Appearance, 10/24/16, at ¶ 3.
Additionally, counsel sent a letter to Appellant, and he attached a copy of
the letter to his motion. Counsel states that he informed Appellant that he
has filed a motion to withdraw and an Anders brief, and he apprised
Appellant of his rights in light of the motion to withdraw as counsel. Thus,
Appellant’s appellate counsel has satisfied the requirements of Anders and
Santiago. Moreover, our review of the record reveals no correspondence
from Appellant supplementing the Anders brief. We thus conclude that the
procedural and briefing requirements for withdrawal have been met.
In the Anders brief, counsel presents the following issue for our
review: “Whether Appellant’s sentence was harsh and excessive and an
abuse of discretion in light of the facts of the present case?” Anders Brief
at 3. Counsel asserts that Appellant should not “suffer a total confinement
sentence since the underlying case was a misdemeanor, he had developed
no new case, and had successfully completed 17 months on the street.”
Anders Brief at 6. Appellant maintains that his seventeen months “on the
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street” do not indicate “that he might have committed other crimes if
released.” Id. He suggests that because the underlying case was not a
felony, “less than total confinement may not have depreciated the
seriousness of the simple assault.” 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.
[Commonwealth v.] Galletta, 864 A.2d [532,] 539 [(Pa.
Super. 2004)]. 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 [the]
sentence on the record. Commonwealth v. Shimonvich, 858
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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.
Commonwealth v. Kalichak, 943 A.2d 285, 290–291 (Pa. Super. 2008)
(emphasis added).
First, we note the grading of the underlying offense is irrelevant. As
the Kalichak Court explained, “[T]he 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, Appellant’s claim that his sentence
was harsh and excessive invokes a challenge to the discretionary aspects of
sentencing, an issue that is not appropriate in an appeal from a parole
revocation sentence. Id. at 291. Accordingly, we conclude Appellant has
failed to present any viable claim for our review.
We agree with counsel’s assessment that this appeal is wholly
frivolous. Thus, we affirm the judgment of sentence and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2017
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