J-S09015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER JAMES CARBONE,
Appellant No. 2810 EDA 2016
Appeal from the Judgment of Sentence June 3, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0001037-2010, CP-46-CR-0001479-
2010, CP-46-CR-0008198-2010
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 29, 2017
Appellant, Christopher James Carbone, appeals from the judgment of
sentence entered following revocation of his probation at three trial court
docket numbers. Appellant’s counsel has filed a petition seeking to withdraw
his 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 a withdrawal from representation on direct appeal. Appellant
has not filed a response to counsel’s petition. After careful review, we grant
counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Appellant had entered negotiated guilty pleas in three cases. At
docket 8198-2010, Appellant pled guilty to criminal trespass in violation of
18 Pa.C.S. § 3503(a)(1)(ii).1 Appellant pled guilty to theft from a motor
vehicle in violation of 18 Pa.C.S. § 3934(a) at docket 1479-2010. At docket
1037-2010, Appellant pled guilty to possession of drug paraphernalia in
violation of 35 P.S. § 780-113(a)(32). While the Montgomery County
Probation and Parole Department supervised Appellant for the associated
sentences, Appellant violated the terms of supervision.
At a Gagnon II2 hearing held on March 17, 2015, Appellant stipulated
to being in violation and entered an open stipulation on the three criminal
dockets. N.T., 3/17/15, at 3-7. An on-the-record colloquy was conducted at
that hearing. Id.
____________________________________________
1
We note that subsections (b.1)(1)(iv) and (b.1)(2) of section 3503,
criminal trespass, were recently declared unconstitutional in Leach v.
Commonwealth, 141 A.3d 426 (Pa. 2016) (holding that 18 Pa.C.S. §
3503(b.1)(1)(iv), (b.1)(2) violates the single-subject rule of Article III,
Section 3 of the Pennsylvania Constitution). However, we note the holding
in Leach does not affect our disposition in the instant case because
Appellant was sentenced under subsection (a)(1)(ii).
2
Due process requires a probationer be given a preliminary (“Gagnon I”)
and a final (“Gagnon II”) hearing prior to revoking probation.
Commonwealth v. Knoble, 42 A.3d 976, 978 n.1 (Pa. 2012) (citing
Gagnon v. Scarpelli, 411 U.S. 778 (1973)). The Gagnon decision has
become the common moniker for both parole and probation revocation
proceedings. Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa.
Super. 2011).
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On June 3, 2015, Appellant was sentenced at docket 8198-2010 to
four to eight years of imprisonment from his commitment date of November
23, 2011. N.T., 6/3/15, at 10. At docket 1479-2010, Appellant was
sentenced to two and one-half to five years of imprisonment. Id. That
sentence was to run concurrently to the sentence at docket 8198-2010 and
also from November 23, 2011. Id. At docket 1037-2010, Appellant was
placed on one year of probation that ran from the date of sentencing. Id.
On April 29, 2016, Appellant filed a pro se petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546, asserting the
ineffectiveness of counsel for failing to file a direct appeal. PCRA counsel
was appointed and filed an amended PCRA petition on June 29, 2016,
reiterating the claim of counsel’s ineffectiveness. On July 26, 2016, the
PCRA court entered an order granting Appellant relief and reinstating
Appellant’s direct appeal rights.
Inexplicably, on August 9, 2016, Appellant’s counsel filed a motion to
withdraw Appellant’s admission of guilt entered at the Gagnon II hearing
held on March 17, 2015. This post-sentence motion was denied by order
dated August 23, 2016, and entered August 24, 2016. Appellant filed a
notice of appeal on August 23, 2016. Appellant was directed to file a
Pa.R.A.P. 1925(b) statement. Appellant filed an amended notice of appeal
on September 2, 2016, which provided as follows:
Notice is hereby given that [Appellant] hereby appeals to the
Superior Court of Pennsylvania from the Order-Sentence/Penalty
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Imposed on June 3, 2015. This Amended Notice of Appeal is
intended to cure the previous Notice of Appeal filed with the
Montgomery County Clerk of Courts Office on August 23, 2016.
Notice of Appeal, 9/2/16, at 1. On September 12, 2016, Appellant filed a
Pa.R.A.P. 1925(b) statement. The trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a). On December 3, 2016, counsel filed a petition for leave
of court to withdraw as appellate counsel and an Anders brief in this Court.
Before we address the questions raised on appeal, we must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and
briefing requirements imposed upon an attorney who seeks to withdraw on
appeal. The procedural mandates are that 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.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within his petition
to withdraw, counsel averred that he conducted a conscientious review of
the record and concluded that the present appeal is wholly frivolous.
Counsel sent Appellant a copy of the Anders brief and petition to withdraw,
as well as a letter, a copy of which is attached to the brief. In the letter,
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counsel advised Appellant that he could represent himself or that he could
retain private counsel to represent him.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
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 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. It sets forth the factual
and procedural history of this case, outlines pertinent case authority, cites to
the record, and refers to issues of arguable merit. Anders Brief at 4-14.
Further, the brief sets forth counsel’s conclusion that the appeal is frivolous
and the reasons for counsel’s conclusion. Id.
The issue raised in the Anders brief is whether Appellant’s Gagnon II
counsel was ineffective for failing to advise Appellant of the potential range
of sentences that could have been imposed. Because the case is before us
on direct appeal, however, this issue is not properly before our Court. In
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court
reiterated the holding from Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002), and stated that generally, “claims of ineffective assistance of counsel
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are to be deferred to PCRA review; trial courts should not entertain claims of
ineffectiveness upon post-verdict motions; and such claims should not be
reviewed upon direct appeal.” Holmes, 79 A.3d at 576. The Holmes
Court, however, recognized two exceptions to the general rule whereby
claims of ineffective assistance of counsel could be raised on direct appeal:
(1) where the trial court determines that a claim of ineffectiveness is both
meritorious and apparent from the record so that immediate consideration
and relief is warranted; or (2) where the trial court finds good cause for
unitary review, and the defendant makes a knowing and express waiver of
his entitlement to seek PCRA review from his conviction and sentence,
including an express recognition that the waiver subjects further collateral
review to the time and serial petition restrictions of the PCRA. Id. at 564,
577.
Appellant did not satisfy either of the aforementioned exceptions
outlined in Holmes. The trial court did not conclude that Appellant’s claim
of ineffectiveness is meritorious and apparent from the record necessitating
immediate consideration, and Appellant has not expressly waived his right to
pursue PCRA review. Trial Court Opinion, 10/13/16, at 3-4. Accordingly, we
dismiss this claim without prejudice to Appellant’s right to seek collateral
review under the PCRA.
Counsel’s petition to withdraw granted. Judgment of sentence
affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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