Com. v. Lee, J.

• Court: Superior Court of Pennsylvania
• Decided: November 8, 2018
• Docket: 3880 EDA 2016
• Status: Unpublished

Opinion

J-S53030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN HOWARD LEE : : Appellant : No. 3880 EDA 2016

Appeal from the Judgment of Sentence November 10, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001315-2011

BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 08, 2018

John Howard Lee appeals from the judgment of sentence imposed

November 10, 2016, in the Delaware County Court of Common Pleas. Upon

stipulation to a technical violation of parole, the trial court re-sentenced Lee

to 380 days full back time, to be aggregated with his existing state sentence

with parole no sooner than his maximum date. Contemporaneous with this

appeal, Lee’s counsel has filed a petition to withdraw from representation and

an Anders brief. See Anders v. California, 386 U.S. 738 (1967);

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). The sole issue

addressed in the Anders brief is a challenge to the discretionary aspects of

Lee’s sentence. For the reasons below, we affirm, and grant counsel’s petition

to withdraw.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S53030-18

The facts of Lee’s underlying conviction are not pertinent to our

disposition of his appeal. We briefly note that on May 5, 2011, Lee originally

entered into a negotiated guilty plea to driving under the influence (“DUI”)

(highest rate of alcohol/third or subsequence offense) and driving while

license is suspended/revoked.1 That same day, the court sentenced Lee to an

aggregate term of 18 to 30 months’ imprisonment, followed by two years’

probation. He subsequently violated the terms of his parole and, following a

Gagnon II2 hearing on November 10, 2016, was sentenced to full back time

of 380 days. This timely appeal followed.3

When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any of

the substantive issues raised on appeal. See Commonwealth v. Bennett,

124 A.3d 327, 330 (Pa. Super. 2015). Here, our review of the record reveals

counsel has substantially complied with the requirements for withdrawal

____________________________________________

1 See 75 P.S. §§ 3802(c) and 1543(b)(1), respectively.

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

3 On December 15, 2016, the trial court ordered Lee to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 4, 2017, Lee’s counsel filed a statement of his intent to file an Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4). On April 4, 2018, the trial court filed an opinion, stating that because counsel filed a Rule 1925(c)(4) statement and expressed the intention to file an Anders brief, it would “refrain from entering any opinion on the merits” of Lee’s appeal. Opinion, 4/4/2018, at unnumbered 2.

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outlined in Anders, supra, and its progeny. Specifically, counsel requested

permission to withdraw based upon his determination that the appeal is

“wholly frivolous,”4 filed an Anders brief pursuant to the dictates of

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), furnished a

copy of the Anders brief to Lee and advised Lee of his right to retain new

counsel or proceed pro se. See Commonwealth v. Cartrette, 83 A.3d 1030,

1032 (Pa. Super. 2013) (en banc). Moreover, our review of the record reveals

no correspondence from Lee responding to the Anders brief. Accordingly, we

will proceed to examine the record and make an independent determination

of whether the appeal is wholly frivolous. See Commonwealth v. Flowers,

113 A.3d 1246, 1248 (Pa. Super. 2015).

The only issue identified in counsel’s Anders brief challenges the

appropriateness of Lee’s sentence:

At the Gagnon II hearing herein, Mr. Lee stipulated that he was in violation of his probation [sic]. The record reflects, however, that he has been engaged in various beneficial programs while imprisoned. These include drug and alcohol programs such as Alcoholics Anonymous meetings, and anger management programs.

The Judge nevertheless revoked his parole and re- sentenced him to serve his full back[t]ime of 380 days.

Counsel believes an issue of arguable merit exists as to whether that new sentence is harsh and excessive under the circumstances.

4 See Application to Withdraw Appearance, 6/20/2018, at ¶ 3.

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This issue, however, is frivolous since the [trial court] had no discretion to impose any sentence other than full backtime for a parole violation. See Commonwealth v. Galletta, 864 A.2d 532 (Pa. Super. 2004). Moreover, the Court had to take into consideration the fact that Mr. Lee violated his parole by committing his fourth DUI.

Anders Brief at 5 (record citations omitted).

Our review of a parole revocation hearing and concomitant sentence is

well-established:

Unlike a probation revocation, a parole revocation does not involve the imposition of a new sentence. Commonwealth v. Mitchell, 429 Pa.Super. 435, 632 A.2d 934, 936 (1993). Indeed, there is no authority for a parole-revocation court to impose a new penalty. Id. Rather, the only option for a court that decides to revoke parole is to recommit the defendant to serve the already- imposed, original sentence. Id. …

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. Mitchell, 632 A.2d at 936, 937. …

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. Mitchell, 632 A.2d at 936. Accordingly, an appeal of a parole revocation is not an appeal of the discretionary aspects of sentence. Id.

As such, a defendant appealing recommitment cannot contend, for example, that the sentence is harsh and excessive. Galletta, 864 A.2d at 539. Such a claim might implicate discretionary sentencing but it is improper in a parole-revocation appeal. Id. Similarly, it is inappropriate for a parole-revocation appellant to challenge the sentence by arguing that the court failed to consider mitigating factors or failed to place reasons for sentence on the record. Commonwealth v. Shimonvich, 858 A.2d 132, 135 (Pa. Super. 2004). Challenges of those types again

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implicate the discretionary aspects of the underlying sentence, not the legal propriety of revoking parole. Id.

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

(emphasis supplied).

As the Kalichak Court explained, and as acknowledged in the Anders

brief, “the only option for a court that decides to revoke parole is to recommit

the defendant to serve the already-imposed, original sentence.” Id. at 290.

As such, Lee’s claim that his re-sentence is harsh and excessive because the

court ordered him to serve his full back time invokes a challenge to the

discretionary aspects of sentencing, an issue that is not appropriate in an

appeal from a parole revocation sentence. See id. at 291. Accordingly, we

conclude Lee has failed to present any viable claim for our review.

Because we agree with counsel’s assessment that this appeal is wholly

frivolous, we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/8/18

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