Com. v. Jeffcoat, K.

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2016
• Docket: 3561 EDA 2015
• Status: Unpublished

Opinion

J-S59019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KENNETH JEFFCOAT

Appellant No. 3561 EDA 2015

Appeal from the Judgment of Sentence October 28, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002255-2014

BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 09, 2016

Appellant, Kenneth Jeffcoat, appeals from the judgment of sentence

entered on October 28, 2015, following the revocation of his 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 September 9, 2014, Appellant pled guilty to possession of a

*Former Justice specially assigned to the Superior Court. J-S59019-16

controlled substance with intent to deliver1 and was sentenced to four to 16

months’ imprisonment. He was later alleged to be in violation of his parole

and a parole revocation hearing was held on October 28, 2015. See

Gagnon v. Scarpelli, 411 U.S. 778 (1973). At the hearing, Appellant

stipulated that he had two new convictions and, thus, was in violation of his

parole. The trial court accepted the recommendation of the Delaware

County Office of Probation and Parole that he be sentenced to serve his full

back time of 332 days. Appellant agreed with this recommendation. The

trial court also accepted his request that he be made re-entry eligible. This

appeal followed.2

Appellant’s counsel included one issue in his Anders brief:

[Whether sentencing Appellant to] another 332 days[’] imprisonment for violating his parole [is] excessive under [the] circumstances[?]

Anders Brief at 3.

“When presented with an Anders brief, [we] may not review the

merits of the underlying issues without first passing on the request to

____________________________________________

1 35 P.S. § 780-113(a)(30). 2 Appellant did not file a post-sentence motion. Appellant timely filed a notice of appeal on November 25, 2015. 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). Appellant’s counsel filed a concise statement alleging a frivolous appeal pursuant to Pa.R.A.P. 1925(c)(4) on January 20, 2016. The trial court issued a Rule 1925(a) opinion on January 21, 2016.

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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 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.

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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

all the above requirements.3 We now turn to the issue raised in the Anders

brief.

Counsel’s Anders brief contends that sentencing Appellant to another

332 days of imprisonment for violating his parole is excessive under the

circumstances. Anders Brief at 3. Alleging a sentence is excessive

challenges a discretionary aspect of sentencing. Commowealth v. Ahmad,

961 A.2d 884, 886 (Pa. Super. 2008). However, upon a violation of

parole, the trial court does not impose a new sentence. Instead, a

defendant is required to serve the balance of a valid sentence that has been

3 Appellant has not responded to the petition to withdraw as counsel.

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previously imposed. Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa.

Super. 1993). We previously determined:

There is no authority for a parole-revocation court to impose a new penalty. Rather, the only option for a court that decides to revoke parole is to recommit the defendant to serve the already- imposed, original sentence. At some point thereafter, the defendant may again be paroled.

Therefore, 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. 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. In the exercise of that discretion, a conviction for a new crime is a legally sufficient basis to revoke parole.

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. Accordingly, an appeal of a parole revocation is not an appeal of the discretionary aspects of sentence.

As such, a defendant appealing recommitment cannot contend, for example, that the sentence is harsh and excessive. Such a claim might implicate discretionary sentencing but it is improper in a parole-revocation appeal. Similarly, it is inappropriate for a parole-revocation appellant to challenge the sentence by arguing the court failed to consider mitigating factors or failed to place reasons for sentence on the record. Challenges of those types again implicate the discretionary aspects of the underlying sentence, not the legal propriety of revoking parole.

Commonwealth v. Kalichak, 943 A.2d 285, 290-291 (Pa. Super. 2008)

(citations and footnote omitted).

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Here, because Appellant’s claim challenges the excessiveness of his

sentence imposed based on his parole violation, it is wholly frivolous. See

id. at 292-293 (concluding that raising a discretionary aspects of sentence

claim is not a proper attack on a parole revocation and as such, is wholly

frivolous under Anders). Because a parole-revocation court does not have

the authority to impose a new sentence and can only recommit the

defendant to serve the remaining term of the sentence already imposed,

raising the claim that his sentence is excessive is improper in this context.

See Commonwealth v. Galetta, 864 A.2d 532, 538 (Pa. Super. 2004);

Commonwealth v. Fair, 497 A.2d 643, 645 (Pa. Super. 1985).

Accordingly, Appellant’s claim is without merit. Further, we note that

although Appellant does not challenge the revocation of his parole, we

conclude the trial court did not err in doing so because Appellant was

convicted of new crimes.

After an independent review of the entire record, we see nothing that

might arguably support this appeal. 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.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/9/2016

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