Com. v. Ross, N.

• Court: Superior Court of Pennsylvania
• Decided: April 13, 2015
• Docket: 1208 EDA 2014
• Status: Unpublished

Opinion

J-S19009-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

NORMAN ROSS

Appellant No. 1208 EDA 2014

Appeal from the Judgment of Sentence entered March 12, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0010039-2007

BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 13, 2015

Norman Ross appeals from the judgment of sentence entered for his

violation of probation (VOP). Appellant’s counsel has filed an Anders1 brief

and petitioned to withdraw because he contends that this appeal is wholly

frivolous. We affirm and grant the petition to withdraw.

In 2008, Appellant pled guilty to two counts each of forgery and theft

by unlawful taking.2 The trial court sentenced Appellant to two to four years

in prison followed by two years of probation. On October 13, 2009,

____________________________________________

1 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (refining Pennsylvania’s technical requirements for withdrawing under Anders). 2 18 Pa.C.S.A. §§ 4101(a) and 3921(a). J-S19009-15

Appellant was placed on state parole. On October 9, 2011, Appellant was

placed on special probation.3

On August 10, 2012, federal authorities arrested Appellant and

charged him with seven crimes of fraud and identity theft. Appellant waived

indictment, pled guilty, and was sentenced to three years in prison followed

by six years’ supervised release on September 13, 2013. Appellant

committed the federal offenses while on state parole, special probation, or

both.

After the federal district court sentenced Appellant, he appeared

before the trial court for a VOP hearing on March 12, 2014. At the VOP

hearing, Appellant admitted that his federal convictions constituted a

violation, and he waived preparation of a presentence investigation report.

N.T., 3/12/14, at 4-5. The trial court sentenced Appellant, who it described

as a career criminal with no hope of rehabilitation, id. at 9-10, to two

consecutive terms of one to two years in prison, consecutive to Appellant’s

federal prison sentence.

Appellant filed pro se a notice of appeal, and the trial court appointed

new counsel to represent him, who timely filed a concise statement of errors

on appeal. Counsel points to one issue for our review: whether the trial

3 For “special probation,” the Pennsylvania Board of Probation and Parole is the supervising authority and the trial court is the revocation authority. See 12 West’s Pa. Prac., Law of Probation & Parole § 3:6 (3d ed. 2014).

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court could sentence Appellant for a VOP when he had not yet started to

serve the probationary period of his original sentence. Before we consider

the merits, we must address whether counsel has complied with the

requirements to withdraw from representation under Anders. See

Santiago, 978 A.2d at 361.

To withdraw under Anders/Santiago, counsel must (1) petition this

Court for leave to withdraw after certifying that a thorough review of the

record indicates the appeal is frivolous; (2) file a brief referring to anything

in the record that might arguably support the appeal; and (3) give the

appellant a copy of the brief and advise the appellant of the right to obtain

new counsel or file a pro se brief to raise any additional points for review.

Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).

Additionally, the Anders/Santiago brief 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.

We find that counsel has complied with Anders and Santiago.

Counsel has petitioned for leave to withdraw, filed a brief that refers us to

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anything that might support the appeal, and informed Appellant of his right

to hire a new lawyer or file a pro se response.4 Furthermore, counsel’s brief

meets Santiago’s substantive requirements listed above.

We now conduct an independent review of the record to determine

whether this appeal is indeed frivolous. “When counsel meets his or her

obligations, ‘it then becomes the responsibility of the reviewing court to

make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.’”

Santiago, 978 A.2d at 355 (quoting Commonwealth v. McClendon, 434

A.2d 1185, 1187 (Pa. 1981)). In appeals from the imposition of VOP

sentences, our review is limited to the validity of the VOP proceedings, the

legality of the sentence, and whether the trial court abused its discretion in

imposing the VOP sentence. Commonwealth v. Hoover, 909 A.2d 321,

322-23 (Pa. Super. 2006).

Counsel properly notes that Appellant’s contention has no basis in fact

or law. First, Appellant was placed on special probation on October 9, 2011.

Appellant’s federal crimes spanned periods ending in November and

December 2011. Therefore, Appellant committed his federal crimes in

November and December 2011 while on probation. It was well within the

trial court’s discretion to revoke Appellant’s probation and sentence him to

4 Appellant has not filed a response.

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total confinement. See 42 Pa.C.S.A. § 9771 (providing that for a VOP, a

sentencing judge possesses the same sentencing alternatives that were

available at the time of the initial sentencing, and that a court may impose a

VOP sentence of total confinement if, inter alia, the offender was convicted

of new crimes).

Second, even if Appellant were correct, the trial court could have

revoked Appellant’s probation for his violations committed while on state

parole, i.e., before he began to serve probation. See Commonwealth v.

Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980). “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.” Id. (quoting Wright

v. United States, 315 A.2d 839, 841-42 (D.C. 1974)); see also Hoover,

909 A.2d at 323-34 (reaffirming that a trial court may revoke probation and

resentence a defendant to total confinement for violations that occurred

before the defendant began serving the probationary sentence).

In sum, the sole issue raised by counsel is frivolous. Additionally, we

have conducted an independent review of the record, and we agree with

counsel that no non-frivolous appellate issues exist. Because the appeal is

wholly frivolous, we affirm and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/2015

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