Com. v. Jones, L.

Opinion

J-S59019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LOUSEVEJO JONES

Appellant No. 3095 EDA 2013

Appeal from the Judgment of Sentence October 8, 2013 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001021-2011

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2014

Lousevejo Jones appeals from the judgment of sentence imposed in

the Court of Common Pleas of Delaware County after he stipulated to having

violated his parole and was resentenced to serve his full back time of 574

Counsel has petitioned this Court to withdraw his

representation of Jones pursuant to Anders, McClendon and Santiago.1

judgment of sentence.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S59019-14

On May 3, 2011, Jones entered a negotiated plea before the Honorable

James F. Nilon, Jr., to one count of resisting arrest. He was sentenced to

time served (tw

was convicted of five new crimes in Philadelphia County, including two

counts of burglary and one count each of criminal trespass, criminal mischief

and aggravated assault. On October 8, 2013, Jones appeared before Judge

Nilon for a Gagnon II hearing, at which time he stipulated to the violation

of his parole. Judge Nilon sentenced him to serve his full back time,

amounting to 574 days, consecutive to his Philadelphia County sentence for

one count of burglary.

Jones filed a timely notice of appeal on November 6, 2013.

Thereafter, Judge Nilon ordered Jones to file a concise statement of errors

counsel filed a statement of intent to file an Anders brief with this Court,

pursuant to Pa.R.A.P. 1925(c)(4).

Anders brief, this Court may not review

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

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.

2005). In order to withdraw pursuant to Anders and McClendon, counsel

must: (1) petition the Court for leave to withdraw, certifying that after a

thorough review of the record, counsel has concluded the issues to be raised

are wholly frivolous; (2) file a brief referring to anything in the record that

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might arguably support the appeal; and (3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points that the appellant deems worthy of

review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.

2001). In Santiago, the Pennsylvania Supreme Court altered the

requirements for withdrawal under Anders to mandate the inclusion of a

statement detailing reasons for concluding the appeal is frivolous.

the record and concluded the appeal is wholly frivolous. Counsel supplied

Jones with a copy of

pro se, or with newly-retained counsel, and to raise any other issues he

believes might have merit.2 Counsel also has submitted a brief, setting out

in neutral form a single issue of arguable merit. Finally, counsel has

explained, pursuant to the dictates of Santiago, why he believes the issue

to be frivolous. See Anders Brief, at 3. Counsel having satisfied the

procedural requirements for withdrawal, we now conduct our own review of

the proceedings and render an independent judgment as to whether the

appeal is, in fact, wholly frivolous. Commonwealth v. Wright, 846 A.2d

730, 736 (Pa. Super. 2004).

2 Jones has not filed a pro se response or brief.

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In his Anders brief, counsel raises a single point of arguable merit:

that 574 days of imprisonment is excessive under the circumstances.

In Commonwealth v. Mitchell, 632 A.2d 934 (Pa. Super. 1993), this

Court set forth the following, which guides our analysis in the present case:

Clearly, the order revoking parole does not impose a new sentence; it requires appellant, rather, to serve the balance of a valid sentence previously imposed. Moreover, such a recommittal is just that a recommittal and not a sentence. Further, at a [v]iolation of [p]arole hearing, the court is not free to give a new sentence. The power of the court after a finding of violation of parole in cases not under the control of the State Board of Parole is to recommit to jail[.] There is no authority for giving a new sentence with a minimum and maximum. Therefore, an appellant contesting a revocation of parole need not comply with the provisions of Pa.R.A.P. 2119(f) by first articulating a substantial question regarding the discretionary aspects of sentencing. . . . The sole issue on appeal is whether the trial court erred, parole and committing him to a term of total confinement.

Id. at 936 (citations and quotation marks omitted).

Here, there is no question that Jones was convicted of new criminal

offenses; indeed, he stipulated to that fact at his Gagnon II hearing. Those

a sufficient basis upon which to revoke parole. See id. As Judge Nilon had

no choice but to recommit Jones to serve the balance of his sentence, see

id., Jones is entitled to no relief.

Judgment of sentence affirmed. Application to withdraw granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/2014

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