J-S42002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JARRETT TERELL EDWARDS
Appellant No. 1808 MDA 2016
Appeal from the Order Entered September 14, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003591-2011
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 10, 2017
Appellant, Jarrett Terell Edwards, appeals from the judgment of
sentence entered on September 14, 2016, following the revocation of his
county parole. In this direct appeal, Appellant’s court-appointed counsel
filed both a petition to withdraw as counsel and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that
Appellant’s counsel complied with the procedural requirements necessary for
withdrawal. Moreover, after independently reviewing the record, we
conclude that the instant appeal is wholly frivolous. We therefore grant
counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.
We summarize the relevant factual background and procedural history
as follows. On January 9, 2013, Appellant pled guilty to driving under the
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influence (DUI) - highest rate and DUI - general impairment1 and received a
sentence of 72 hours to 6 months’ confinement. Confronted for the fourth
time with allegations that he violated the terms of his parole, Appellant
waived his Gagnon I hearing and proceeded directly to a revocation hearing
on September 14, 2016. See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
The terms of Appellant’s parole required that he report in person to his
supervising officer at designated times and places, request and obtain
permission to change his residence, attend Alcohol and Highway Safety
Driving School, and obey the law. See Trial Court Opinion, 11/17/16, at
1-2. The record developed at Appellant’s September 14, 2016 revocation
hearing established that Appellant violated his parole by failing to report to
his supervising officer during July 2016, failing to report a change of
address, testing positive for alcohol consumption at a highway safety class
on July 23, 2016, and pleading guilty to possession of marijuana. Id.; N.T.
Revocation Hearing, 9/14/16, at 2-5. In view of these violations, the
Luzerne County Office of Probation and Parole asked the trial court to revoke
Appellant’s parole and remand him to serve the maximum term of his
sentence in confinement. Id. at 4-5. The trial court revoked Appellant’s
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1
75 Pa.C.S.A. §§ 3802(c) and 3802(a)(1), respectively. Both charges
represented Appellant’s first DUI offenses. The Commonwealth withdrew
certain summary offenses following the entry of Appellant’s guilty plea.
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parole, reset the maximum date of his sentence to October 14, 2016,2 and
ordered that he remain incarcerated until that date.
Appellant did not file a post-sentence motion. Instead, Appellant, still
represented by the public defender’s office, filed a pro se notice of appeal
dated September 21, 2016.3 On October 4, 2016, the trial court ordered
Appellant to file a concise statement of errors complained of on appeal
(“concise statement”). See Pa.R.A.P. 1925(b). When no concise statement
was forthcoming, the court issued an opinion on November 17, 2016 finding
that Appellant waived appellate review of his claims. See Trial Court
Opinion, 11/17/16, at 3. At the direction of this Court, the trial court
conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998) on February 7, 2017. After that hearing, the court denied a
pending petition to withdraw filed by trial counsel and ordered the public
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2
The court did not resentence Appellant. Instead, based upon our review of
the record, the court simply adjusted Appellant’s maximum sentencing date
to reflect credit for time served for this offense.
3
Appellant’s notice bears a date-stamp showing its receipt by the clerk of
courts on November 1, 2016. The trial court’s docket also reflects November
1, 2016 as the filing date for Appellant’s notice. The notice, however, bears
a “received” stamp at the top of the page with “9-27-16” handwritten in the
blank that is provided. In addition, the trial court’s October 4, 2016 order
directing Appellant to file a concise statement under Pa.R.A.P. 1925(b)
states that Appellant filed his notice of appeal “on or about September 27,
2016[.]” Since September 27, 2016 falls within 30 days of Appellant’s
judgment of sentence, we shall treat Appellant’s notice of appeal as timely
filed.
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defender to continue to represent Appellant on appeal. On March 27, 2017,
Appellant’s counsel filed, nunc pro tunc, a concise statement declaring that
there were no non-frivolous issues to address on appeal. See Pa.R.A.P.
1925(c)(4). On April 6, 2017, the trial court accepted the nunc pro tunc
March 27, 2017 filing. The matter is now ripe for our review.
The Anders brief raises one issue for our consideration:
Whether the trial court abused its discretion in revoking
Appellant’s parole and [re]committing him to a term of total
confinement?
Anders Brief at 1.
“When presented with an Anders brief, [we] may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). We must first determine whether counsel completed the
necessary procedural requirements for withdrawing as counsel.
Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013).
Court-appointed counsel must satisfy certain requirements to withdraw
under Anders.
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 [appellant] and advise him of his right to retain new counsel
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or to himself raise any additional points he deems worthy of
[our] attention.
Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012),
quoting Santiago, 978 A.2d at 361. In the submitted Anders brief, 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.
Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.
If counsel meets these requirements, it is then our responsibility “to
make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is wholly frivolous.” Santiago, 978
A.2d at 355 n.5, citing Commonwealth v. McClendon, 434 A.2d 1185,
1187 (Pa. 1981). Counsel will be permitted to withdraw if both the
procedural and substantive requirements are satisfied. In addition, we
“must conduct an independent review of the record to discern if there are
any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnote and citation omitted). In the case at bar, we find counsel has met
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all the above requirements.4 We now turn to the issue raised in the Anders
brief.
Counsel’s Anders brief points out that Appellant was honest with his
driving safety instructor about his consumption of alcohol, that this was
Appellant’s first positive breathalyzer in six years, and that Appellant was
unable to report to his parole officer in July 2016 because he could not
depart early from his job. Anders Brief at 4.
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. [Commonwealth v. Mitchell, 632
A.2d 934, 936 (Pa. Super. 1993).] The Commonwealth must
prove the violation by a preponderance of the evidence and,
once it does so, the decision to revoke parole is a matter for the
court's discretion. Id. at 937. In the exercise of that discretion,
a conviction for a new crime is a legally sufficient basis to revoke
parole. Commonwealth v. Galletta, 864 A.2d 532, 539 (Pa.
Super. 2004).
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.
Commonwealth v. Kalichak, 943 A.2d 285, 290-291 (Pa. Super. 2008).
After an independent review of the entire record, we see nothing that
might arguably support this appeal. The issues raised in the Anders brief
are patently frivolous and Appellant’s guilty plea to marijuana possession
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4
Appellant has not responded to the petition to withdraw as counsel.
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represents an uncontested justification for revocation and recommitment.
This is especially so in the context of a fourth revocation proceeding. The
appeal is, therefore, wholly frivolous. Accordingly, we affirm Appellant’s
judgment of sentence and grant counsel’s petition for leave to withdraw
appearance.
Petition for leave to withdraw as counsel granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2017
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Com. v. Edwards, J.
Combined Opinion