Com. v. Isaac, M.

• Court: Superior Court of Pennsylvania
• Decided: November 7, 2018
• Docket: 1187 EDA 2018
• Status: Unpublished

Opinion

J-S62023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MAURICE ISAAC : : Appellant : No. 1187 EDA 2018

Appeal from the Judgment of Sentence Entered March 16, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001627-2013

BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 07, 2018

Maurice Isaac appeals from the judgment of sentence entered March 16,

2018, following revocation of his probationary sentence, where Isaac violated

terms of his probation prior to commencement of the probationary period. In

addition, appointed counsel, Patrick J. Connors, Esq., seeks to withdraw his

representation of Isaac pursuant to Anders v. California, 386 U.S. 738

(1967). We affirm and grant counsel’s petition to withdraw.

In November 2013, Isaac entered a negotiated guilty plea to three

counts of delivery of a controlled substance.1 Pursuant to the agreement, the

plea court sentenced Isaac to 15 to 30 months of incarceration, followed by

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1 35 P.S. § 780-113(a)(30). J-S62023-18

two years of probation. Isaac did not appeal from the judgment of sentence

imposed.

In March 2018, the revocation court conducted a hearing to address

allegations that Isaac had violated the terms of his probation.2 In July 2014,

Isaac was transferred from SCI-Dallas to a county correctional facility in

preparation for his release on parole. Isaac’s probationary term was scheduled

to begin on August 23, 2015. However, prior to that date, in October 2014,

Isaac left the facility on an approved pass but failed to return. Thereafter,

Isaac remained at-large until he was arrested on new charges in September

2015, to which he pleaded guilty and for which he received an additional

period of incarceration. At the conclusion of the hearing, the revocation court

found Isaac in violation of his probation and resentenced him to an additional

12 to 24 months of incarceration, consecutive to the sentence imposed on the

new charges. See generally Notes of Testimony (N.T. Revocation),

03/16/2018.

Isaac timely appealed, and counsel filed a Pa.R.A.P. 1925(c)(4)

statement, indicating his intent to file an Anders brief in this Court. The court

issued a responsive opinion. Before this Court, Isaac now raises the following

issue: “[w]hether the sentence imposed on Mr. Isaac for violating his

probation should be vacated where he was not yet on probation when the

violations occurred[.]” Anders Br. at 2.

2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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“When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa.Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), namely:

(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.

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 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, 928 A.2d 349, 353 (Pa.Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa.Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, only then may this Court “conduct an independent review of

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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) (citations and footnote omitted).

In the instant matter, Attorney Connors’ Anders brief complies with the

above-stated requirements. Namely, he includes a summary of the relevant

factual and procedural history; he refers to the portions of the record that

could arguably support Isaac’s claim; and he sets forth his conclusion that

Isaac’s appeal is frivolous. He explains his reasoning and supports his rationale

with citations to the record as well as pertinent legal authority. Attorney

Connors has supplied Isaac with a copy of his Anders brief and a letter

explaining the rights enumerated in Nischan. Accordingly, counsel has

complied with the technical requirements for withdrawal. Thus, we may

independently review the record to determine if the issue Isaac raises is

frivolous and to ascertain if there are other non-frivolous issues he may pursue

on appeal.

Essentially, Isaac asserts that it was inappropriate for the revocation

court to find him in violation of the terms of his probation because his alleged

violation occurred prior to the commencement of his probationary term.

However, as noted by Attorney Connors, this Court has long held that a

defendant’s probation may be revoked for conduct preceding the probationary

term. See, e.g., Commonwealth v. Hoover, 909 A.2d 321, 324 (Pa.Super.

2006) (affirming revocation where defendant violated terms of work release

while on parole, prior to commencement of probation); Commonwealth v.

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Wendowski, 420 A.2d 630 (Pa.Super. 1980) (affirming revocation where

defendant incurred new charge while serving parole, prior to commencement

of probation). As stated by this Court in Wendowski,

[A] term of probation may and should be construed for revocation purposes as including the term beginning at the time probation is granted. Otherwise, having been granted probation a defendant could commit criminal acts with impunity-as far as revocation of probation is concerned-until he commenced actual service of the probationary period.

Wendowski, 420 A.2d at 630 (formatting applied; internal citation omitted).

Here, the plea court imposed a compound sentence on Isaac in

November 2013. The probationary portion of the sentence was to commence

in August 2015, following a period of incarceration. In October 2014, while on

parole and prior to the commencement of his probation, Isaac absconded from

supervision and remained at large until he was arrested on new charges in

September 2015. Not only did Isaac violate the terms of his parole,3 Isaac’s

conduct was violative of the terms of his probation. Thus, the court was within

its authority to revoke Isaac’s probation and impose a new sentence. Hoover,

909 A.2d at 324; Wendowski, 420 A.2d at 630.

In short, we agree with Attorney Connors that Isaac’s issue is frivolous.

We have independently reviewed the record and find no other issues of

arguable merit that he could pursue on appeal. Accordingly, we affirm Isaac’s

judgment of sentence and grant counsel’s petition to withdraw.

3 Isaac stipulated to the parole violation. N.T. Revocation at 4.

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Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/7/18

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