Com. v. Gifford, H.

• Court: Superior Court of Pennsylvania
• Decided: October 21, 2015
• Docket: 778 EDA 2015
• Status: Unpublished

Opinion

J-S57027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

HARLEY GIFFORD

Appellant No. 778 EDA 2015

Appeal from the Judgment of Sentence February 19, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006464-2011 _____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

Appellant No. 780 EDA 2015

Appeal from the Judgment of Sentence February 19, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006030-2011

BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED OCTOBER 21, 2015

Harley Gifford brings these appeals from the judgments of sentence

imposed on February 19, 2015, in the Court of Common Pleas of Delaware J-S57027-15

County, following the revocation of her probation in the underlying cases.

Concomitant with this appeal, counsel has filed an Anders1 brief and

petition seeking to withdraw as counsel. The single issue identified in the

Anders brief is a challenge to the discretionary aspects of the probation

violation sentence. Based upon the following, we affirm the judgments of

sentence and grant the petition for leave to withdraw.

The trial court has provided a thorough summary of the background of

this case, and therefore we recite only the details that are necessary for

purposes of this discussion. See Trial Court Opinion, 4/30/2015, at 1–11.

On January 31, 2012, Gifford entered negotiated guilty pleas in two

cases that included multiple counts of burglary and conspiracy,2 docketed in

the Court of Common Pleas of Delaware County at Docket No. 6030 of 2011

and Docket No. 6464 of 2011. On June 27, 2012, the trial court imposed

the following sentences:

At Docket No. 6030 of 2011 —

Burglary – 2 years’ intermediate punishment followed by 5 years’ probation

Burglary – 2 years’ intermediate punishment followed by 5 years’ probation

Burglary – 3 years’ probation ____________________________________________

1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). 2 See 18 Pa.C.S. §§ 3502, 903, respectively.

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Conspiracy – 3 years’ probation

The sentences for the first two burglaries were ordered to run concurrently.

The probation sentences were ordered to run consecutively to each other

and with the other two sentences.

At Docket No. 6464 of 2011 –

Burglary – 2 years’ intermediate punishment followed by 5 years’ probation

Burglary – 2 years’ intermediate punishment followed by 5 years’ probation

These sentences were ordered to run concurrently with each other and with

the sentence imposed at Docket No. 6030 of 2011. Therefore, for both

cases, the aggregate sentence was a 2-year term of state intermediate

punishment followed by an 11-year term of probation.

On February 19, 2015, Gifford stipulated to violating the probation

sentences imposed at Docket Nos. 6030 of 2011 and 6464 of 2011, by new

burglary conviction and absconding from supervision. As a result, the trial

court revoked her probation and imposed the following sentence:

At Docket No. 6030 of 2011 –

Burglary – 2 to 10 years’ incarceration

Burglary – 3 years’ probation

Conspiracy – 2 years’ probation

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The above sentences were ordered to run consecutively and, therefore, the

aggregate sentence was 4 to 20 years’ incarceration followed by 5 years’

probation.

Both of the above sentences were ordered to run consecutively and,

therefore, the aggregate sentence was 4 to 20 years’ imprisonment.

The trial judge ordered that the sentences in both cases run

concurrently. Accordingly, for both cases, the total probation revocation

sentence was 4 to 20 years’ incarceration, followed by a 5-year probationary

term. This timely appeal followed.

Prior to addressing the issues identified in this appeal, we must review

counsel’s petition to withdraw. See Commonwealth v. Cartrette, 83 A.3d

1030, 1032 (Pa. Super. 2013) (en banc) (“Initially, we note that we may not

address the merits of the issue raised on appeal without first reviewing the

request to withdraw.”).

Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349, 361 (Pa. 2009). The 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

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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. Counsel also must provide a copy of the Anders brief to the appellant. Attending the brief must be a letter that advises the appellant of his or her right to “(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court’s attention in addition to the points raised by counsel in the Anders brief.” Commonwealth v. Nischan, 2007 PA Super 199, 928 A.2d 349, 353 (Pa. Super. 2007); see Commonwealth v. Daniels, 2010 PA Super 112, 999 A.2d 590, 594 (Pa. Super. 2010); Commonwealth v. Millisock, 2005 PA Super 147, 873 A.2d 748, 751-52 (Pa. Super. 2005).

Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014).

Here, our review of the record reveals counsel has complied with the

requirements for withdrawal. Specifically, counsel filed a petition for leave to

withdraw, in which he states his belief that the appeal is frivolous, and filed

an Anders brief pursuant to the dictates of Santiago, supra, 978 A.2d at

361. Counsel has provided a copy of the letter he mailed to Gifford, advising

her of her right to retain new counsel or proceed pro se, and the letter to

Gifford reflects counsel’s enclosure of a copy of the Anders brief. Moreover,

our review of the record reveals no response from Gifford. Therefore, we

proceed “to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

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frivolous.” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super.

2015) (quotations and citation omitted). In so doing, we review not only the

issues identified by appointed counsel in the Anders brief, but examine all

of the proceedings to “make certain that appointed counsel has not

overlooked the existence of potentially non-frivolous issues.” Id. at 1249

(footnote omitted).

The issue framed in the Anders brief is as follows: “Whether the

aggregate sentence of 4 to 20 years imprisonment imposed upon Ms. Gifford

is harsh and excessive under the circumstances?” Anders Brief at 4. As

such, the Anders brief sets forth a discretionary sentencing claim.

“[T]here is no absolute right to appeal when challenging the discretionary aspect of a sentence.” Commonwealth v. Crump, 2010 PA Super 101, 995 A.2d 1280, 1282 (Pa.Super. 2010); 42 Pa.C.S. § 9781(b). Rather, an “[a]ppeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code.” Crump, supra at 1282. In determining whether a substantial question exists, this Court does not examine the merits of the sentencing claim. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (Pa. 1987).

In addition, “issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived.” Commonwealth v. Kittrell, 2011 PA Super 60, 19 A.3d 532, 538 (Pa. Super. 2011). Furthermore, a defendant is required to preserve the issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f) statement. Commonwealth v. Naranjo, 2012 PA Super 183, 53 A.3d 66, 72 (Pa. Super. 2012).

Cartrette, supra, 83 A.3d at 1042.

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Here, Gifford did file a timely notice of appeal.3 However, Gifford

failed to properly preserve her discretionary aspects of sentencing claim at

sentencing or in a timely-filed motion to modify sentence pursuant to

Pa.R.Crim.P. 708(E). Moreover, the Anders brief does not contain a Rule

2119(f) statement, and the Commonwealth has objected to its absence.

Accordingly, Gifford has waived this claim for review. See Commonwealth

v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008). (“[W]hen a court

revokes probation and imposes a new sentence, a criminal defendant needs

to preserve challenges to the discretionary aspects of that new sentence

either by objecting during the revocation sentencing or by filing a post-

sentence motion.”); see also Commonwealth v. Montgomery, 861 A.2d

304, 308 (Pa. Super. 2004) (“Where an appellant fails to comply with

Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived for

purposes of review.”).

Nevertheless, in light of the Anders brief, we will address Gifford’s

sentencing claim. See Kalichak, supra, 943 A.2d at 291–292 (addressing

discretionary aspects of probation revocation sentence presented in Anders

brief even though no post sentence motion filed). See also ____________________________________________

3 We note counsel, in response to the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, filed a statement pursuant to Pa.R.A.P. 1925(c)(4), indicating that he intended to file an Anders brief on appeal. See Statement of Matters Complained of on Appeal, 4/7/2015.

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Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (“Where

counsel files an Anders brief, this Court has reviewed the matter even

absent a separate Pa.R.A.P. 2119(f) statement.”).

The Anders brief avers that “even after [Gifford] was found in

violation of her probation, she stated that she realized the mistakes she has

made in her life and was working to correct them [and] 4 to 20 years

imprisonment is harsh and excessive under these circumstances.” Anders

brief at 8, citing N.T., 2/19/2015, at 10. To the extent Gifford raises a

substantial question by claiming that the revocation court failed to consider

mitigating circumstances,4 the record belies her claim.

Our standard of review is as follows:

The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment — a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citation

omitted), appeal denied, ___ A.3d ___ (Pa. Super. 2015).

____________________________________________

4 See Commonwealth v. Swope, ___ A.3d ___, ___ [2015 PA Super 196] (Pa. Super. 2015) (“This Court has also held that ‘an excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating factors—raises a substantial question.’”) (citation omitted).

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“Upon revocation the sentencing alternatives available to the court

shall be the same as were available at the time of initial sentencing[.]” 42

Pa.C.S. § 9771(b).

Thus, if the original offense was punishable by total confinement, such a penalty is available to a revocation court, subject to the limitation that the court shall not impose total confinement unless it finds that: (1) the defendant has been convicted of another crime; (2) the defendant's conduct indicates a likelihood of future offenses; or (3) such a sentence is necessary to vindicate the court's authority.

Kalichak, supra, 943 A.2d at 289.

Here, the trial court revoked Gifford’s probation and properly

sentenced her to total confinement as Gifford stipulated to the probation

violation.

Moreover, the trial court sentenced Gifford within the statutory limits,5

and below the recommendations of her probation officer. As the trial court

explained:

This court further directed that its [probation revocation] sentences at bar were to be served concurrently to one another. Thus, [Gifford] stemming from her probation violations was sentenced in the aggregate for Nos. 6030-11 and 6464-11 to four (4) through twenty (20) years incarceration at a state correctional institution, followed by five (5) years state probation. N.T. 2/19/15, pp. 26-28. See Certificates of Imposition of Judgment of Sentence, Nos. 6030-11 and 6464-11, dated February 19, 2015. ____________________________________________

5 The underlying crimes to which Gifford pleaded guilty were all felonies of the first degree, punishable by a maximum term of imprisonment of 20 years. See 18 Pa.C.S. § 1103(1).

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Defendant Gifford’s supervising Board agent recommended she be sentenced anew on the revocation of her probations in the aggregate to a ten and a half (10.5) through twenty-one (21) year sentence of imprisonment, effective the date of imposition and concurrent to [Gifford’s] newest incarceration term (No. 3352-14). N.T. 2/19/15, pp. 4-5. Despite his suggestion that the sentences at bar be served concurrent to that of No. 3352-14, the net impact of the agent’s recommendation was Defendant Gifford serving five and a half (5.5) years imprisonment additional to that of her more recent conviction (No. 3352-14). N.T. 2/19/15, pp.5, 28-29.

Although this court opted instead to direct that [Gifford’s probation revocation] sentences be served consecutive to her newest incarceration term, the sentences were intentionally structured contrary to the agent’s suggestion and the Commonwealth’s concurring argument so she would serve a minimum imprisonment of just four (4) years beyond that mandated per her more current conviction under docket No. 3352-14. See Certificates of Imposition of Judgment of Sentence, Nos. 6030-11 and 6464-11, dated February 19, 2015. See also N.T. 2/19/15, pp. 4-5, 6-7, 27-29.

Trial Court Opinion, 4/30/2015, at 10–11.

On this record, we would discern no abuse of discretion. Moreover, we

detect no other issues that would sustain an appeal in this case. See

Flowers, supra. Therefore, we agree with counsel’s assessment that the

appeal is wholly frivolous. Accordingly, we affirm Gifford’s judgments of

sentence and grant counsel’s petition for leave to withdraw as counsel.

Judgments of sentence affirmed. Petition for leave to withdraw as

counsel granted.

Stabile, J., joins the memorandum.

Mundy, J., concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/21/2015

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