Com. v. Dessiso, B.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2017
• Docket: Com. v. Dessiso, B. No. 1096 EDA 2015
• Status: Unpublished

Opinion

J. S10020/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BYRON DESSISO, : : Appellant : No. 1096 EDA 2015

Appeal from the Judgment of Sentence February 27, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0003526-2010

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 22, 2017

Appellant, Byron Dessiso, appeals from the Judgment of Sentence

entered following the revocation of his probation. Appellant’s counsel filed

an Application to Withdraw as Counsel and a Brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), stating that the appeal is wholly frivolous. After

careful review, we grant counsel’s request to withdraw, vacate Appellant’s

Judgment of Sentence in part, and affirm Appellant’s Judgment of Sentence

in part.

The facts, as gleaned from the certified record, are as follows. On

March 7, 2010, police arrested Appellant after police recovered a loaded .22-

caliber firearm from his jacket pocket. Following a bench trial, the trial court

convicted Appellant of Persons Not to Possess Firearms, Carrying a Firearm J. S10020/17

Without a License, and Carrying a Firearm in Public in Philadelphia. 1 On

August 13, 2010, the trial court sentenced Appellant to concurrent terms of

six years’ probation for two of the offenses, but imposed no penalty for

Carrying a Firearm in Public in Philadelphia, 18 Pa.C.S. § 6108.

On February 27, 2015, Appellant entered two open guilty pleas on

unrelated charges, which constituted probation violations. The trial court,

also sitting as the violation of probation (“VOP”) court on the same day,

found Appellant had violated his probation and revoked his probation. The

court resentenced Appellant to an aggregate term of 2½ to 5 years’

incarceration, as follows: (1) 2½ to 5 years’ incarceration for Persons Not to

Possess Firearms; (2) a concurrent term of 2½ to 5 years’ incarceration for

Carrying a Firearm Without a License; and (3) a concurrent term of 2 to 4

years’ incarceration for Carrying a Firearm in Public in Philadelphia.

Appellant filed a timely Notice of Appeal. Appellant filed a statement

pursuant to Pa.R.A.P. 1925 as ordered.2 On September 22, 2016,

Appellant’s counsel filed a Brief pursuant to Anders and Santiago, supra,

which included a request to withdraw.

Before we address the merits of this appeal, we must determine

whether counsel has complied with the procedures provided in Anders and

1 18 Pa.C.S. § 6105; 18 Pa.C.S. § 6106; and 18 Pa.C.S. § 6108, respectively. 2 The trial court did not file a Pa.R.A.P. 1925(a) Opinion.

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its progeny. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). Counsel who wishes to withdraw must file a petition to

withdraw stating that he or she has made a conscientious examination of the

record and determined that there are no meritorious issues to be raised on

appeal. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

Also, counsel must provide a copy of the Anders Brief to the appellant and

inform him of his right to proceed pro se or retain different counsel. Id.

See also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).

The substance of the 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.

Once counsel has satisfied the above requirements, it is then this

Court’s duty to conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous. See Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.

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Super. 2007) (en banc); Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (footnote and citation omitted).

Counsel in the instant appeal has complied with the above

requirements. We, thus proceed to conduct an independent review to

ascertain if the appeal is indeed wholly frivolous.

Our review of the record indicates that there is one issue of merit not

raised by Appellant or his counsel in the Anders Brief. As the

Commonwealth has noted, the VOP court “did not have authority to impose

a new [VOP] sentence on the conviction for carrying a firearm on public

property or public street in Philadelphia because it had originally imposed ‘no

further penalty’ for that offense.” Appellee’s Brief at 9 (citing

Commonwealth v. Williams, 997 A.2d 1205, 1208 (Pa. Super. 2010)).

“Revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court's decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

discretion.” Williams, supra at 1208. “An appellate court may affirm,

modify, vacate, set aside or reverse any order brought before it for review,

and may remand the matter and direct the entry of such appropriate order,

or require such further proceedings to be had as may be just under the

circumstances.” 42 Pa.C.S. § 706. However, “a probation revocation court

does not have the authority to re-sentence an offender on a final guilt-

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without-punishment sentence after the period for altering or modifying the

sentence has expired.” Williams, supra at 1209.

After reviewing the record and the relevant case law, we agree with

the Commonwealth that the VOP court imposed an illegal sentence of 2 to 4

years’ incarceration for Carrying a Firearm in Public in Philadelphia. Because

the trial court had originally imposed a sentence of no further penalty for the

violation, and the 30-day period for altering or modifying a sentence had

elapsed, the VOP court was without authority to impose a term of

incarceration for that conviction.

We also agree with the Commonwealth that correction by this Court

will not disturb the trial court’s overall sentencing scheme. See Appellee’s

Brief at 9-10. The VOP court sentenced Appellant to an aggregate term of

2½ to 5 years’ incarceration, which included the improper concurrent term of

2 to 4 years’ incarceration for Carrying a Firearm in Public in Philadelphia.

Since vacating the concurrent illegal sentence would not change the length

of Appellant’s incarceration or disturb the trial court’s overall sentencing

scheme, we need not remand this case for resentencing. See

Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006).

Judgment of Sentence imposed for violation of 18 Pa.C.S. § 6108

vacated. Judgment of Sentence affirmed in all other respects. Application

to Withdraw as Counsel granted. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2017

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