Com. v. Hall, R.

Opinion

J-S64021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RICHARD JOSEPH HALL

Appellant No. 43 MDA 2015

Appeal from the Judgment of Sentence of November 24, 2014 In the Court of Common Pleas of Luzerne County Criminal Division at No.: CP-40-CR-0002627-2009

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.: FILED DECEMBER 14, 2015

Richard Joseph Hall appeals his November 24, 2014 judgment of

sentence, which was imposed after Hall’s probation was revoked. Hall’s

counsel has filed with this Court a petition to withdraw as counsel, together

with an Anders brief.1 We find that Hall’s counsel has satisfied the

Anders/Santiago requirements and that Hall has no non-frivolous issues to

pursue on appeal. Consequently, we grant counsel’s petition to withdraw as

counsel, and we affirm Hall’s judgment of sentence.

____________________________________________

* Former Justice specially assigned to the Superior Court. 1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S64021-15

Initially, Hall pleaded guilty to burglary.2 On May 24, 2010, the trial

court sentenced Hall to twelve months to twenty-four months’

imprisonment, plus three consecutive years of probation. Once Hall was

credited for time served, his calculated minimum release date was December

10, 2010. His maximum release date was December 10, 2011. As part of

his sentence, Hall also was to complete a drug and alcohol treatment

program, and follow all rules and regulations.

Hall subsequently was paroled on May 5, 2011. On December 20,

2011, Hall reached his maximum date with state parole and began serving

his three-year special probation sentence. Among the conditions of his

special probation was that he was to live at a specified and approved

residence and that he must avoid drugs and alcohol.

On December 16, 2013, Hall failed a breathalyzer test administered by

his probation officer. Again on January 9, 2014, Hall failed a breathalyzer

test and , this time, admitted to consuming alcohol. He was arrested and

taken to Luzerne County Prison. Hall waived his Gagnon I preliminary

revocation hearing.3 At his Gagnon II revocation hearing, the trial court

revoked Hall’s special probation and resentenced Hall to county probation for

2 18 Pa.C.S. § 3502(a). The Commonwealth withdrew Hall’s lesser charges of theft by unlawful taking, 18 Pa.C.S. § 3921, and criminal mischief, 18 Pa.C.S. § 3304, pursuant to a plea agreement. 3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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the remainder of his supervision term. He was ordered to report for a drug

and alcohol evaluation, complete the treatment, and follow all

recommendations for aftercare. In addition, Hall was to report for a Secure

Continuous Remote Alcohol Monitor [“SCRAM”] bracelet to be worn at all

times.

On March 10, 2014, a bench warrant was issued for Hall for his failure

to appear at a scheduled hearing. On June 12, 2014, Hall was in custody

and present for his hearing. The trial court ordered Hall to be released,

pending the verification of his new address. He was ordered to continue to

comply with his alcohol and drug treatment. Because he had not yet done

so, he also was ordered to report to the probation office immediately upon

release to be fitted for his SCRAM bracelet.

On July 23, 2014, another arrest warrant was issued for Hall because

he failed to appear for a revocation hearing after Hall’s probation officer

reported him for two technical violations. Hall apparently violated the

condition that he reside at an approved residence and failed to get his

SCRAM bracelet.

On October 30, 2014, at a probation revocation hearing, Hall admitted

that he was not living at his approved residence. Notes of Testimony

(“N.T.”), 10/30/2014, at 5. The court found that he had violated that

condition of his probation. The court reserved ruling on the second violation

of his failure to appear for his SCRAM bracelet, pursuant to Hall’s allegations

that he had paperwork indicating that he could not be fitted for the bracelet

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until he paid $300. Id. at 6-7. A hearing was scheduled for November 24,

2014 to determine whether Hall violated the condition of the SCRAM

bracelet. The trial court also requested an updated pre-sentence

investigation (“PSI”) report at this time. Id. at 8.

On November 24, 2014, after hearing testimony regarding the SCRAM

bracelet, the trial court found that Hall had violated that condition of his

probation as well. The court then resentenced Hall on his burglary

conviction. The judge stated that the standard sentencing guideline range

for Hall’s charge, with a prior record score of five and an offense gravity

score of six, was twenty-one to twenty-seven months. N.T., 11/24/2014, at

7. The court observed that Hall initially was sentenced to a term in the

mitigated range. Id. at 7. The trial court noted that a state facility would

be the best place for Hall to receive the rehabilitation that he needed. Id. at

9. The trial court then sentenced Hall to twelve to thirty-six months in a

state correctional institution. Hall was given credit for his time served and

was ordered to submit to a drug and alcohol assessment. Id. at 10.

On December 19, 2014, Hall filed a notice of appeal. The trial court

ordered Hall to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). On January 15, 2015, counsel for Hall timely

complied. In his 1925(b) statement, counsel for Hall indicated that he had

reviewed the record, concluded that there were no non-frivolous issues to

pursue on appeal, and gave notice of his intent to file an Anders brief. On

January 20, 2015, the court filed a Pa.R.A.P. 1925(a) statement.

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As noted, Hall’s counsel has filed an Anders brief and a motion to

withdraw as counsel. Counsel for Hall has identified one issue that arguably

supports Hall’s appeal, but he ultimately concludes that the issue has no

discernible merit. Counsel sets forth that issue as follows: “Whether the

sentence imposed by the Trial Court [is] harsh and excessive?” Anders

Brief for Hall at 1.

Because counsel for Hall proceeds pursuant to Anders and Santiago,

this Court first must pass upon counsel’s petition to withdraw before

reviewing the merits of the issue presented by Hall. Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Prior to

withdrawing as counsel pursuant to Anders, counsel must file a brief that

meets the requirements established by our Supreme Court in Santiago.

The brief must provide the following information:

(1) a summary of the procedural history and facts, with citations to the record;

(2) reference to anything in the record that counsel believes arguably supports the appeal;

(3) counsel’s conclusion that the appeal is frivolous; and

(4) 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 his client.

Attending the brief must be a letter that advises the client of his rights to

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“(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, 928 A.2d 349, 353 (Pa. Super. 2007); see

also Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).

Finally, to facilitate our review of counsel’s satisfaction of his obligations,

counsel must attach to his petition to withdraw the letter that he transmitted

to his client. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.

Super. 2005).

Our review of counsel’s petition to withdraw and the accompanying

brief demonstrates that counsel has satisfied the Anders requirements.

Counsel has provided procedural and factual histories of this case, detailing

the facts and events relevant to this appeal with appropriate citations to the

record. Anders Brief for Hall at 2-4. Counsel also has articulated Hall’s

position and has analyzed the issue in light of the record with appropriate

citations to the record and case law. Id. at 5-7. Ultimately, counsel has

concluded that Hall has no non-frivolous bases for challenging his sentence.

Id. at 7.

Counsel also sent Hall a letter informing him that he has identified no

non-frivolous issues to pursue on appeal, that he has filed an application to

withdraw from Hall’s representation, and that Hall may find new counsel or

proceed pro se. Counsel has attached the letter to his petition to withdraw,

as required by Millisock. See Petition to Withdraw as Counsel, 8/6/2015.

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Accordingly, counsel has complied substantially with Santiago’s technical

requirements. See Millisock, 873 A.2d at 751. Hall has not filed a

response with this Court to counsel’s Anders Brief, the letter that counsel

sent to him, or the motion to withdraw as counsel.

We now must conduct an independent review of the record to

determine whether this appeal is, as counsel claims, wholly frivolous, or if

any non-frivolous issues may remain. Santiago, 978 A.2d at 354 (“[T]he

court—not counsel—then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds it

may grant counsel’s request to withdraw[.]”) (quoting Anders, 386 U.S. at

744).

We begin with the issue identified by counsel, whether the trial court

abused its discretion by imposing a sentence within the guidelines when

resentencing Hall. A sentence will not be disturbed on appeal absent a

manifest abuse of discretion. Commonwealth v. Hoch, 936 A.2d 515, 517

(Pa. Super. 2007). An abuse of discretion is not merely an error of

judgment. Rather, the appellant must establish “that the sentencing court

ignored or misapplied the law, exercised its judgment for reasons of

partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

decision.” Id. at 518.

Additionally, the right to challenge the discretionary aspects of

sentencing is not absolute. Commonwealth v. Moury, 992 A.2d 162, 169

(Pa. Super. 2010).

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An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

Id. at 170 (internal citations omitted).

Hall has complied with the first part of the test by filing a timely notice

of appeal. However, Hall has not filed a post-sentence motion. “[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.” Commonwealth v. Kalichak, 943 A.2d 285, 289

(Pa. Super. 2008); see also Commonwealth v. Colon, 102 A.3d 1033 (Pa.

Super. 2014). Because Hall did not object during the revocation hearing or

file a post-sentence motion, he has waived this issue. See Pa.R.A.P. 302

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”); Commonwealth v. Mann, 820 A.2d 788, 794

(Pa. Super 2003). Likewise, an issue that is waived is frivolous. See

Kalichak, 943 A.2d at 291 (holding that when an issue has been waived,

“pursuing th[e] matter on direct appeal is frivolous”).

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We have conducted an independent review of the record and conclude

that counsel’s characterization and analysis of the record are accurate, and

that there are no non-frivolous challenges to Hall’s judgment of sentence.

Moreover, our review has revealed no other non-frivolous issues that merit

consideration.

Judgment of sentence affirmed. Counsel’s petition to withdraw

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/14/2015

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