Com. v. Shaffer, M.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

MARK ALAN SHAFFER :

:

Appellant : No. 1551 WDA 2017

Appeal from the Judgment of Sentence September 20, 2017 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000565-2011

BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 09, 2018

Appellant, Mark Alan Shaffer, appeals from the judgment of sentence

entered on September 20, 2018, following the revocation of his probation. On

appeal, Appellant’s counsel filed a petition to withdraw as counsel and a brief

pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth

v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel’s

petition to withdraw and affirm Appellant’s judgment of sentence.

We briefly summarize the facts and procedural history of this case as

follows. On May 5, 2013, Appellant entered a guilty plea to one count of

possession with intent to deliver heroin (PWID), 35 P.S. § 780-113(a)(30).

The trial court sentenced Appellant to seven years of probation. The trial court

revoked Appellant’s probation on July 18, 2013 and January 19, 2015 for

technical probation violations, including using controlled substances. In both

instances, the trial court did not resentence Appellant to a term of

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* Retired Senior Judge assigned to the Superior Court.

incarceration. On May 19, 2017, Appellant again admitted to technical

violations of his probation including using a controlled substance, obtaining

someone else’s urine for drug screening, and fleeing from his probation officer

on two occasions when the officer was conducting home visits. The trial court

ordered Appellant to submit to an evaluation to determine if he qualified for

the State Intermediate Program (SIP). Appellant, however, withdrew from

SIP before completing an evaluation. At the conclusion of a Gagnon II1

hearing, the trial court revoked Appellant’s probation and sentenced Appellant

to a term of incarceration of seven and one-half (7½) to 15 years, with credit

for time-served. Arguing that his sentence was excessive, Appellant filed a

timely motion for reconsideration of his sentence. The trial court denied relief

and this timely appeal resulted.2

Before reaching the merits of the appeal, we must first address the

propriety of counsel's petition to withdraw and Anders brief. We have

previously determined:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

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

2 Both the trial court and Appellant complied with Pa.R.A.P. 1925. The trial court issued a Rule 1925(b) opinion on February 1, 2018.

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Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on the appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.

Our Supreme Court has clarified portions of the Anders procedure:

In the Anders brief that accompanies court-appointed counsel's petition to withdraw, 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.

Santiago, 978 A.2d at 361.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (some

citations omitted).

Upon review, counsel has complied with all of the foregoing

requirements pursuant to Anders and Santiago. Thus, we proceed to review

the issue set forth in counsel’s Anders brief before conducting an independent

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review of the record to discern if there are non-frivolous issues overlooked by

counsel. Id.

On appeal, counsel for Appellant presents the following issue:

I. Whether the [t]rial [c]ourt committed an abuse of discretion when it revoked Appellant’s probation/parole and re-sentenced him to serve a minimum of seven and [one- half] (7½) years to a maximum of fifteen (15) years in a State Correctional Institution given the circumstances of the case.

Anders Brief at 4.

“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). An appellant must establish, by reference to the

record, that the sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision in order to show an abuse of discretion.

Commonwealth v. Horning, 2018 WL 3372367, at *6 (July 11, 2018).

Upon revocation of probation,

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“the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.” 42 Pa.C.S.A. § 9771(b). Thus, upon revoking probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence, although once probation has been revoked, the court shall not impose a sentence of total confinement unless it finds that:

(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 the court.

42 Pa.C.S.A. § 9771(c).

Moreover, 42 Pa.C.S.A. § 9721(b) specifies that in every case following the revocation of probation, “the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.”

However, following revocation, a sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statutes in question. Simply put, since the defendant has previously appeared before the sentencing court, the stated reasons for a revocation sentence need not be as elaborate as that which is required at initial sentencing. The rationale for this is obvious. When sentencing is a consequence of the revocation of probation, the trial judge is already fully informed as to the facts and circumstances of both the crime and the nature of the defendant, particularly where [] the trial judge had the benefit of a [pre-sentence investigation report] during the initial sentencing proceedings.

Commonwealth v. Pasture, 107 A.3d 21, 27–28 (Pa. 2014) (some citations

omitted).

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In this case, Appellant asserts that the trial court abused its discretion

by imposing an excessive sentence. “Appellant concedes some incarceration

was warranted, but not the maximum sentence for [PWID.]” Anders Brief at

9. Appellant claims that although this was his third violation of probation, the

current violation was technical and not the result of new criminal charges. Id.

Thus, Appellant contends his conduct did not indicate that he was likely to

commit another crime or that incarceration was necessary to vindicate the

authority of the trial court. Id. at 9-10.

Here, the trial court disclosed its reasons for the imposition of the

Appellant’s sentence in open court as follows:

[L]et’s start back at the original offense. You had [250] packets of heroin the day this happened. You got a break [with a sentence] that was below the mandatory and below the guidelines to stay in the county jail, with services. You failed at that.

You were sent to the SIP program, so you had the best [services] the state had to offer for the next two years.

We all make mistakes. You had another chance to [t]ake that offer, but you – showing that you don’t believe you’re an addict, you don’t believe it’s a problem, no, you’re not going to do that.

That’s why [the P]robation [Department] has [] recommend[ed a maximum term of imprisonment], which is appropriate. You have not participated. You’ve r[u]n from probation [into the woods] behind your residence.

You were storing urine in a condom to pass drug screens[. …A] warrant was issued to have you searched out of the woods.

The sentence and recommendation show that this is to vindicate the authority of the court, officer safety, and the fact that you have not come to grips with your problem and refuse to [do so].

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So, therefore, for the protection of society and for the vindication of the court, you personally earned yourself the maximum sentence of no less than seven and a half years nor more than fifteen years in a state correctional institution.

N.T., 9/20/2017, at 4-5.

In its Rule 1925(a) opinion, the trial court further explained:

As the [c]ourt observed, [Appellant] had refused from the outset to acknowledge his addiction, which resulted not only in his illegal possession and ingestion of narcotics, but in varied attempts to escape detention while on supervision. He thus demonstrated a complete lack of regard for the [c]ourt’s authority and the laws of this Commonwealth. Whereas a lesser sentence – [Appellant’s] prior experience with the SIP program – had proven ineffective and [Appellant] was ineligible to complete the program, therefore, a harsher one was warranted.

Trial Court Opinion, 2/1/2018, at 1.

Based upon our standard of review and our examination of the certified

record, we discern no abuse of discretion in resentencing Appellant following

the revocation of his probation. Although Appellant committed technical

violations of his probation, as the trial court noted, Appellant had multiple

opportunities to avail himself of rehabilitation and failed to do so. The trial

court also recognized that the original offense involved narcotics sales and

that Appellant’s subsequent violations of probation all revolved around

narcotics. As a result, the trial court concluded, on the record as required,

that a maximum term of incarceration was necessary to vindicate its authority.

This assessment fell within the discretion of the revocation court. Appellant’s

refusal or inability to comply with the terms of his probation warranted a

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sentence of total confinement. As such, there is no merit to the issue

presented in Appellant’s Anders brief.

Finally, we have conducted an independent review of the entire record

as required by Anders and have not discerned any other non-frivolous issues.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/9/2018