Com. v. Seekins, S.

• Court: Superior Court of Pennsylvania
• Decided: December 18, 2017
• Docket: 420 WDA 2017
• Status: Unpublished

Opinion

J-S66034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

SHAWN S. SEEKINS,

Appellant No. 420 WDA 2017

Appeal from the Judgment of Sentence February 9, 2017 in the Court of Common Pleas of Warren County Criminal Division at No.: CP-62-CR-0000132-2016

BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 18, 2017

Appellant, Shawn S. Seekins, appeals from the judgment of sentence

imposed after revocation of his probation following his guilty plea to

violations of his parole.1 Appointed counsel has filed a petition for leave to

withdraw as counsel pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

grant counsel’s petition to withdraw and affirm Appellant’s judgment of

sentence. ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 After Appellant admitted to violating his parole, the trial court revoked his consecutive probationary sentence, which had been set to commence following completion of Appellant’s parole sentence, and sentenced him to not less than six months nor more than two years less one day of incarceration. J-S66034-17

We take the following facts from the trial court’s May 15, 2017

opinion, and our independent review of the certified record. On September

9, 2016, Appellant pleaded guilty, pursuant to a negotiated plea agreement,

to one count of corruption of minors.2 On October 7, 2016, the trial court

sentenced him to not less than 170 nor more than 340 days of incarceration,

followed by one year of consecutive probation. Appellant was immediately

paroled.

On February 9, 2017, at a Gagnon II3 hearing, Appellant stipulated to

violating his parole by causing a commotion at his high school, violating his

curfew, and being charged with statutory sexual assault and corruption of

minors. (See N.T. Hearing, 2/09/17, at 8-9). After Appellant emphasized

that he was on parole at the time, but that his probation had not started, the

court explained that “[i]f you violate during the term of your parole, you are

also violating your probation even though it hasn’t commenced.” (Id. at 9-

10). Appellant admitted to the parole violations. (See id. at 12-13).4

The court then revoked Appellant’s parole, remanded him to serve the

balance of his maximum sentence, and then immediately re-paroled him.

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2 18 Pa.C.S.A. § 6301(a)(1)(i). 3 Gagnon v. Scarpelli, 411 U.S. 778 (1973). 4 After Appellant admitted to the parole violations, the court asked him how he pleaded to the violations, to which Appellant responded “Guilty[.]” (N.T. Hearing, at 13). The court accepted his admission. (See id.).

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(See id. at 13). Next, the court revoked his probation and sentenced him to

not less than six months nor more than two years less one day of

incarceration in Warren County Jail. (See id. at 13). Appellant did not file a

motion to modify sentence. See Pa.R.Crim.P. 708(E). On March 10, 2017,

he filed a timely notice of appeal.5 On July 27, 2017, counsel filed a petition

to withdraw and an Anders brief on the basis that the appeal is wholly

frivolous. Appellant has not responded.

The standard of review for an Anders brief is well-settled.

Court-appointed counsel who seek to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous must:

(1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) file a brief referring to anything that arguably might support the appeal but which does not resemble a “no-merit” letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the court’s attention.

[T]his Court may not review the merits of the underlying issues without first passing on the request to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations

and quotation marks omitted). Further, our Supreme Court ruled in ____________________________________________

5 On March 31, 2017, Appellant filed a concise statement of errors complained of on appeal. The court filed an opinion on May 15, 2017. See Pa.R.A.P. 1925.

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Santiago, supra, that Anders briefs must contain “a discussion of

counsel’s reasons for believing that the client’s appeal is frivolous[.]”

Santiago, supra at 360.

Here, counsel’s Anders brief and petition to withdraw substantially

comply with the applicable technical requirements and demonstrate that he

has made “a conscious examination of the record [and] determined that

[the] appeal would be frivolous.” Lilley, supra at 997. The record

establishes that counsel served Appellant with a copy of the Anders brief

and application to withdraw, and a letter of notice, which advised Appellant

of his right to retain new counsel or to proceed pro se and raise additional

issues to this Court. (See Petition for Leave to Withdraw as Counsel,

7/27/17, at 2, Exhibit A). Further, the application and brief cite “to anything

that arguably might support the appeal[.]” Lilley, supra at 997 (citation

omitted); (see also Anders Brief, at 4-9). As noted by our Supreme Court

in Santiago, the fact that some of counsel’s statements arguably support

the frivolity of the appeal does not violate the requirements of Anders. See

Santiago, supra at 360-61. Accordingly, we conclude that counsel

complied with Anders’ technical requirements. See Lilley, supra at 997.

Having concluded that counsel’s petition and brief substantially comply

with the technical Anders requirements, we must “conduct [our] own review

of the trial court’s proceedings and render an independent judgment as to

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whether the appeal is, in fact, wholly frivolous.” Lilley, supra at 998

(citation and quotation marks omitted).

The Anders brief raises two questions for our review:

A. Did Appellant knowingly enter his plea of guilty to a parole/probation violation?

B. Could the sentencing court properly revoke a period of probation that the Appellant had not begun to serve, and if so should the law change?

(Anders Brief, at 3).

Appellant’s first issue challenges the validity of his guilty plea to

having violated his parole. (See id. at 6-8). He claims that his plea was not

valid because he did not know that his probation could be revoked as a

result of his guilty plea to a parole violation. (See id.). Appellant’s first

claim is waived and would not merit relief.

“Initially, we note that, in an appeal from a sentence imposed after the

court has revoked probation, we can review the validity of the revocation

proceedings, the legality of the sentence imposed following revocation, and

any challenge to the discretionary aspects of the sentence imposed.”

Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (citation

omitted). “Revocation of a probation sentence is a matter committed to the

sound discretion of the trial court, and that court’s decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

discretion.” Commonwealth v. McNeal, 120 A.3d 313, 322 (Pa. Super.

2015) (citation omitted).

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A motion to modify sentence after revocation of probation must be

filed within ten days following imposition of sentence. See Pa.R.Crim.P.

708(E). “Issues not raised in the [trial] court are waived and cannot be

raised for the first time on appeal.” Pa.R.A.P. 302(a).

Here, Appellant did not claim at sentencing that his admission to his

parole violations was unknowing. Nor did he file a motion to modify

sentence challenging his admissions. Accordingly, because he has not raised

his issue to the validity of his admission before the trial court, Appellant

waived his first claim. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 708(E).

Moreover, even if Appellant had preserved the issue, his claim that he

unknowingly admitted to a violation of his parole is meritless.

The transcript from the Gagnon II hearing clearly demonstrates that

the trial court explained to Appellant that “a violation of his [parole]

conditions violates the probation.” (N.T. Hearing, 2/09/17, at 9; see id. at

9-10). Thus, the record belies Appellant’s claim that he did not know his

admission would result in a violation of probation. Appellant’s first issue

would not merit relief.

In his second issue, Appellant argues that “since he had not yet begun

his probationary term that his probation cannot logically be revoked.”

(Anders Brief, at 8). We disagree.

In general, the imposition of sentence following the revocation of probation is vested within the sound discretion of

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the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. Our standard of review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. Once probation has been revoked, a sentence of total confinement may be imposed if any of the following conditions exist: (1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or, (3) such a sentence is essential to vindicate the authority of court.

Commonwealth v. Hoover, 909 A.2d 321, 322–23 (Pa. Super. 2006)

(citations omitted). This Court has held that “a defendant’s probationary

sentence could be revoked prior to commencement of such sentence if his

conduct after the probationary sentence was imposed, but before it began,

warranted such revocation.” Id. at 323 (citation omitted); see also

Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980)

(holding that term of probation includes term prior to commencement of

service of probationary period).

In the instant case, the trial court found that Appellant’s parole

violation warranted revocation of his probationary sentence. Upon review,

we conclude that the trial court’s decision was supported by the record.

Based on Appellant’s parole violation, the court was well within its authority

to revoke his probation before he began serving the probationary period and

impose a sentence of total confinement. See Hoover, supra at 322-23;

Wendowski, supra at 630. Appellant’s second issue is meritless.

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Based on the foregoing, the claims raised in the Anders brief lack

merit. Further, our independent review of the record reveals no non-

frivolous claims that Appellant could have raised. We agree with counsel

that this appeal is wholly frivolous. See Lilley, supra at 998. Accordingly,

we grant counsel’s petition to withdraw and affirm the judgment of

sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/18/2017

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