J-S41034-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DENNIS L. SHIRES, II, : : Appellant : No. 233 MDA 2019
Appeal from the Judgment of Sentence Entered July 6, 2017 in the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0002155-1998
BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 05, 2020
Dennis L. Shires, II (Appellant), appeals nunc pro tunc from his July 6,
2017 judgment of sentence, which the trial court imposed after revoking
Appellant’s probation. Appellant’s counsel has filed a petition to withdraw
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We deny
counsel’s petition to withdraw, deny Appellant’s applications for appointment
of new counsel and publication,1 and direct counsel to file an advocate’s
brief.
We refer the parties to our September 24, 2019 memorandum for a
full recounting of the facts and prior procedural history. Commonwealth v. ____________________________________________
1 These applications are embedded within Appellant’s pro se response to counsel’s Anders brief.
*Retired Senior Judge assigned to the Superior Court. J-S41034-19
Shires, ___ A.3d ___, 2019 WL 4668094 (Pa. Super. 2019) (unpublished
memorandum). We set forth the pertinent history here, which includes
those portions that now have been included in the certified record following
remand.
In 2002, Appellant pleaded guilty to rape, involuntary deviate sexual
intercourse (IDSI), and aggravated indecent assault in connection with a
1998 incident in which Appellant brandished a knife and sexually assaulted a
17-year-old clerk in the adult video room of a video store. On October 23,
2002, in accordance with the plea agreement, he was sentenced to 5½ to 11
years of incarceration for rape, followed by 3½ to 7 years of incarceration for
aggravated indecent assault, followed by “supervision by the State Board of
Probation and Parole [(Board)]” for a period of 20 years for IDSI.2 Order,
10/29/2002, at 1-2. The trial court made Appellant’s payment of costs,
fines, and restitution “a condition of intermediate punishment, probation[,]
or parole supervision.” Id. The order does not reference any other
conditions of Appellant’s probation. No appeal from this judgment of
sentence was filed.
On February 8, 2010, the Board notified Appellant that the Board had
accepted him for supervision as a “special probation or parole case,” ____________________________________________
2 The transcript from Appellant’s sentencing hearing does not appear in the certified record. This was one of the items this Court directed counsel to obtain on remand. Counsel has represented to this Court that she attempted to obtain this transcript, but it was unavailable due to its age.
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effective November 22, 2016. Board Acceptance for State Supervision,
2/8/2010 (filed 10/23/2019).3 The Board provided Appellant with a
document entitled “Conditions Governing Special Probation/Parole” that set
forth eight conditions of supervision. Board Conditions Governing Special
Probation/Parole, 2/9/2010 (filed 10/23/2019). Appellant acknowledged his
understanding of the conditions and agreed to follow them on February 9,
2010, as evidenced by his signature. See id.
On May 20, 2016, Appellant signed a document from the Board
entitled “Optional Special Conditions for Sex Offenders.” Board Optional
Special Conditions for Sex Offenders, 5/20/2016 (filed 10/23/2019). This
document set forth six conditions of supervision; Appellant initialed next to
each condition and indicated that he understood and agreed to abide by the
conditions. See id.
On May 31, 2016, Appellant signed a document from the Board
entitled “Standard Special Conditions for Sex Offenders.” Board Standard
Special Conditions for Sex Offenders, 5/31/2016 (filed 10/23/2019). This
document set forth 14 conditions of supervision, and again Appellant
initialed next to each condition and indicated he understood and agreed to
abide by the conditions. See id.
____________________________________________
3We have indicated the documents added to the certified record on remand by noting the 2019 filing date.
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At some point that is not clear from the certified record, Appellant was
granted parole. He later completed his parole and began the special
probationary tail portion of his sentence. According to the February 8, 2010
Board Acceptance for State Supervision form, probation was scheduled to
begin on November 22, 2016, but the record, the trial court, and the parties
do not provide clarity as to whether the start of his probation occurred as
scheduled.
On December 28, 2016, an order was entered on the docket dated
December 15, 2016.4 The order stated that “as additional conditions of
[Appellant’s] special probation, [Appellant] must comply with the conditions
governing probation and parole, the standard special conditions for sex
offenders, and any supplemental standard special conditions of supervision.”
Trial Court Order, 12/28/2016, at 1. A notation on the order indicates that it
was served on the Public Defenders’ Office, and not Appellant directly. No
transcript or pleading corresponding to this order appears in the record,
making it unclear why it was entered.
On February 13, 2017, the Board provided “Notice of Charges and
Hearing Special Probation/Parole” to Appellant, notifying him that it was
charging him with three violations of his special probation. The Board first
alleged that Appellant admitted to his probation officer that he had picked up ____________________________________________
4 Prior to this order, the last docket activity occurred back in 2002 around the time of Appellant’s sentencing.
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16-year-old and 18-year-old females at 3:30 a.m. on February 6, 2017, with
the intention to ask them to expose their breasts to him. According to the
Board, this act violated condition number one in the Optional Special
Conditions for Sex Offenders.5
The Board next alleged that Appellant was discharged from Triad
Treatment Specialists because Appellant had accessed or possessed
pornography, had self-reported persistent reliance on or demonstration of
deviant sexual behavior, and had failed to use therapy to prevent sexually
abusive behavior or risk factors related to the cycle of abuse. The Board
averred that Appellant’s discharge violated condition number one of the
Standard Conditions for Sex Offenders, which was to complete successfully
all treatment recommended following a sex offender evaluation from a sex
offender treatment provider.
Finally, the Board alleged that Appellant admitted staying over at his
girlfriend’s house multiple times in the month of January 2017 despite
knowing it was an unapproved residence. The Board stated that this
violated condition number 11 of the Standard Conditions for Sex Offenders.
5 Before each cite to the Optional Special Conditions for Sex Offenders or the Standard Conditions for Sex Offenders, the notice also listed “Condition #8: You shall comply with the following special conditions imposed by the court,” but did not specify where “Condition #8” appears. Notice of Charges and Hearing Special Probation/Parole, 2/13/2017 (filed 10/23/2019) (unnecessary capitalization removed).
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Following a preliminary Gagnon I hearing6 on March 22, 2017, the
trial court found probable cause to believe that Appellant violated the
conditions of his special probation. Order, 3/9/2017, at 1. The trial court
conducted the Gagnon II probation violation hearing on April 19, 2017.
Based upon a counseled admission by Appellant, the trial court found that
the allegations in the Commonwealth’s petition occurred as alleged. Order,
4/25/2017, at 1. Notwithstanding his admission, Appellant denied that the
acts violated any terms of his probation. N.T., 4/19/2017, at 5-6, 9.
According to Appellant, the acts may have violated terms of his parole, but
after his parole expired and his consecutive probationary sentence began, he
was no longer subject to the special conditions. Id. Appellant took this
position because he claims he did not sign any documents with the
conditions once he began his probation.7 Id.
The trial court rejected Appellant’s argument, determining that the
special “conditions survived the change from parole status to probation ____________________________________________
6 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining when probationer is detained based on an alleged probation violation, due process requires a Gagnon I hearing to determine whether there is probable cause that probationer committed violation, followed by a second more comprehensive Gagnon II hearing wherein trial court determines whether to revoke probationer’s probation).
7 Deciphering Appellant’s argument with precision is difficult because the record is not clear as to whether he began his probation before or after signing the Optional Special Conditions for Sex Offenders and the Standard Special Conditions for Sex Offenders in May 2016.
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status.” Order, 4/25/2017, at 1. It also determined that Appellant knew or
should have known what the conditions were because his probation officer
reviewed the conditions with him in January 2017, prior to Appellant’s
commissions of the violations. Id.; see also N.T., 4/19/2017, at 14. The
trial court revoked Appellant’s probation on the IDSI conviction and
continued the matter for sentencing. The trial court noted that in making its
determination it did not consider the December 28, 2016 order imposing
various probation conditions because there was no indication that Appellant
was ever served with or otherwise received notice of that order.8
On July 6, 2017, Appellant was sentenced to three to ten years of
incarceration, to be followed by a period of special probation of ten years.
Appellant, through his counsel, timely filed a notice of appeal from his ____________________________________________
8 According to Appellant’s counsel from the Public Defenders’ Office who represented him at the Gagnon II hearing, the origin of the December 16, 2016 order was that Appellant had
maxed off of state parole in November of [2016] … then went on to special probation … through the [s]tate[,] and at the onset of that special probation period there were no special conditions that mirrored the conditions he had signed for state parole prohibiting him from the viewing of obscene materials. [Appellant’s] probation officer then petitioned in December of [2016] for the special conditions to be instated on [Appellant’s] special probation.
N.T., 4/19/2017, at 2-3. Appellant denied receiving the order, and the Public Defenders’ Office, which had represented Appellant in connection with his guilty plea and sentencing in 2002, had no record of sending the order to Appellant. Id. at 3-11. The docket does not indicate the filing of a written petition by Appellant’s probation officer.
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judgment of sentence. However, on February 12, 2018, this Court
dismissed his appeal after his counsel failed to file a brief. Appellant timely
filed pro se a petition for relief pursuant to the Post Conviction Relief Act, 42
Pa.C.S. §§ 9541-9546, which sought, inter alia, to reinstate his direct appeal
rights based upon counsel’s failure to file a brief. Tricia Hoover Jasper,
Esquire was appointed as new counsel, the petition was amended, and on
January 8, 2019, the PCRA court reinstated Appellant’s direct appeal rights
nunc pro tunc. This appeal timely followed.
In lieu of a concise statement pursuant to Pa.R.A.P. 1925(b), counsel
filed a statement of intent to file an Anders brief pursuant to Pa.R.A.P.
1925(c)(4). Instead of filing an opinion pursuant to Pa.R.A.P. 1925(a), the
trial court indicated that it would be relying upon the trial court’s Rule
1925(a) opinion that was filed on September 25, 2017, before this Court
dismissed Appellant’s appeal of his judgment of sentence stemming from his
probation violation.
On March 27, 2019, Appellant’s counsel filed with this Court an
Anders brief and a petition to withdraw as counsel. On September 24,
2019, due to deficiencies in counsel’s Anders brief and missing items from
the certified trial court record, we denied the petition and remanded to allow
counsel to arrange for supplementation of the certified record and to file
either an advocate’s brief or a proper Anders brief and petition to withdraw.
Counsel arranged for supplementation of the record, and counsel’s second
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Anders brief and petition to withdraw, filed on November 26, 2019, are now
before us. Before we may consider the substance of this appeal, we must
address counsel’s compliance with Anders.
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….
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 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.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[I]n 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
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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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009) (emphasis
added).
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
above requirements. Appellant has filed pro se a response to counsel’s
Anders brief. Generally, when counsel files an Anders brief, this Court
must conduct “a simple review of the record to ascertain if there appear on
its face to be arguably meritorious issues that counsel, intentionally or not,
missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272
(Pa. Super. 2018) (en banc). However, because Appellant filed a pro se
response to the Anders brief, our independent review is limited to those
issues raised in the Anders brief. Commonwealth v. Bennett, 124 A.3d
327, 333 (Pa. Super. 2015). We then review the subsequent pro se
response in the same manner as an advocate’s brief, and consider the
merits of the issues presented pro se and rule upon them accordingly. Id.
at 333-34.
Counsel identifies the issue of arguable merit as “whether the court
erred in finding Appellant violated his consecutive probation when the
violations involved violations of the special conditions of his now expired
parole sentence.” Anders Brief at 6 (capitalization altered). Specifically,
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counsel notes that Appellant signed conditions, but claims the conditions
related to his parole, not his probation. Id. at 10-16. Counsel further
explains that Appellant argues that the trial court erred in finding a violation,
because the conditions upon which his violation was based were set by the
Board, and never imposed by the trial court. Id.
By counsel’s assessment, there is no merit to Appellant’s claim
because Appellant signed Standard Special Conditions for Sex Offenders and
Optional Special Conditions for Sex Offenders in May 2016. Counsel
emphasizes that Appellant’s probation officer explained to Appellant in
January 2017, and other occasions, that Appellant had to follow these
special conditions. According to counsel, while the trial court imposed these
special conditions upon Appellant in its December 15, 2016 order, the trial
court was correct in not considering this order because there is no proof that
Appellant was ever aware of the order. Nevertheless, in counsel’s view, the
order is not relevant to this appeal because the Board may impose
conditions upon probationers “that are germane to, elaborate on, or
interpret any conditions of probation that are imposed by the trial court.”
Id. at 16 (citing Commonwealth v. Elliott, 50 A.3d 1284, 1292 (Pa.
2012)). Because the Board imposed conditions upon Appellant, Appellant
was aware of those conditions as evidenced by his signature, and Appellant
admitted to committing the acts at issue, counsel concludes that there is no
merit to Appellant’s claim of error.
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Appellant, on the other hand, insists that counsel’s evaluation of this
issue misses the mark. Appellant contends that the only court order
imposing conditions of probation in his case is the October 29, 2002
sentencing order. Pro se Response at 6. He emphasizes that while a
December 15, 2016 order imposing conditions of probation exists, the trial
court expressly did not consider the order while revoking his probation
because there is no evidence that Appellant had received the order “and
nobody ‘fully explained why or how the order came about.’” Id. (citing Trial
Court Opinion, 9/25/2017, at 2 n.1 and N.T., 4/19/2017, at 11). Appellant
claims that the conditions he signed in May 2016 were conditions applicable
to his parole, not his probation, because the conditions listed his parole
number. Id. at 7. Furthermore, he argues that because the conditions at
issue were imposed by the Board, and were not ordered by the trial court in
the 2002 court order, the trial court erred by finding he violated his
probation. Id. at 10-11 (citing Commonwealth v. Vilsaint, 893 A.2d 753
(Pa. Super. 2006) and Commonwealth v. MacGregor, 912 A.2d 315 (Pa.
Super. 2006)).
In assessing Appellant’s claim, we observe 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.
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Super. 2015) (citation omitted). Further, “[r]evocation 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. Colon, 102
A.3d 1033, 1041 (Pa. Super. 2014).
As described supra, Appellant signed documents with conditions
imposed by the Board three times: (1) Conditions Governing Special
Probation/Parole in February 2010; (2) Optional Special Conditions for Sex
Offenders in May 2016; and (3) Standard Special Conditions for Sex
Offenders in May 2016. The Board oversees both probation and parole. The
documents are preprinted forms that refer generically to “probation/parole”
without being specifically customized to Appellant’s case. The documents
list Appellant’s parole number. The 2010 conditions were not signed by a
representative of the Board at all, but the 2016 conditions were signed by
Misquitta John, who is designated on the forms as a parole agent. The
record is not clear as to when Appellant began his parole and probation
sentences or the context in which Appellant signed the conditions.
Therefore, based on the record before us, we cannot agree with counsel that
Appellant’s claim that the conditions were applicable only to Appellant’s
parole and not his probation is so clearly devoid of merit to warrant
classifying this claim as frivolous. See MacGregor, 912 A.2d at 318
(holding the trial court erred by revoking MacGregor’s probation based
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upon conditions that “were recited on a preprinted form applicable to parole,
and were drafted by, and signed by a parole agent as the issuing authority,”
and which stated the conditions were being imposed as part of MacGregor’s
parole).
Appellant’s next argument is that the conditions were imposed only by
the Board and not the trial court. As both counsel and Appellant recognize,
the trial court explicitly disregarded the December 2016 order imposing “the
conditions governing probation and parole, the standard special conditions
for sex offenders, and any supplemental standard special conditions of
supervision.” Order, 12/28/2016, at 1. Based upon our review of the
certified record, Appellant is correct that the only other court order in the
record imposing any conditions of probation is the October 29, 2002
sentencing order. The order specifies that the Board shall supervise him for
20 years, and the sole condition mentioned is payment of costs, fines, and
restitution. Order, 10/29/2002, at 1-2.
In MacGregor, the case upon which Appellant principally relies,
MacGregor signed conditions purportedly related to his probation, despite
being listed on a pre-printed form entitled “Special Conditions of Parole.”
912 A.2d at 316. One of the conditions listed on the form was avoiding
contact with anyone under age 18. Id. After MacGregor thrice attended
gatherings with young children present, the trial court revoked his probation
and imposed a prison sentence. Id. at 317.
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On appeal, this Court vacated the judgment of sentence on the basis
that the condition MacGregor violated was never imposed by the trial court.
In doing so, we relied on Vilsaint, 893 A.2d at 757, which held that, “the
legislature [in the Sentencing Code] has specifically empowered the court,
not the probation offices and not any individual probation officers, to
impose the terms of probation.” MacGregor, 912 A.2d at 317 (emphasis
supplied in MacGregor).
Subsequently, in Elliott, our Supreme Court examined this issue
further. The Court sought to reconcile a section of the Sentencing Code, 42
Pa.C.S. § 9754, with two sections of the Prisons and Parole Code, 61 Pa.C.S.
§§ 6131(a)(5)(ii) & 6151. As recounted by the Court,
Section 9754 of the Sentencing Code … provides in relevant part:
(a) General rule.—In imposing an order of probation the court shall specify at the time of sentencing the length of any term during which the defendant is to be supervised, which term may not exceed the maximum term for which the defendant could be confined, and the authority that shall conduct the supervision.
(b) Conditions generally.—The court shall attach such of the reasonable conditions authorized by subsection (c) of this section as it deems necessary to insure or assist the defendant in leading a law- abiding life.
42 Pa.C.S. § 9754(a) & (b).
Subsection (c) delineates fourteen conditions a sentencing court may impose upon a defendant in the imposition of probation. Among these, courts may direct defendants on
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probation to attend treatment and addiction programs, pay fines and restitution, and refrain from frequenting “unlawful or disreputable places.” Id. § 9754(c)(12), (8), (11), and (6), respectively. Further, subsection (c)(13) provides a “catch-all” for trial courts, allowing them to order defendants “[t]o satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” Id. § 9754(c)(13).
Elliott, 50 A.3d at 1288. After examining section 9754, the Supreme Court
concluded that section 9754 permits trial courts to impose “conditions of
probation.” Id. at 1291.
Nonetheless, the Court noted that it could not ignore sections 6131
and 6151 of the Prisons and Parole Code, which mandate that the Board and
its agents establish uniform standards for the supervision of probationers
under its authority, and further to implement those standards and
conditions. Id. The Court in Elliott reconciled the statutes by distinguishing
between “conditions of probation,” which are imposed by the trial court, and
“conditions of supervision,” which are imposed by the Board and its agents.
Id. at 1291-92. It concluded that that “the Board and its agents may
impose conditions of supervision that are germane to, elaborate on, or
interpret any conditions of probation that are imposed by the trial court.”
Id. at 1292.
In Elliott, at the conclusion of Elliott’s sentencing hearing, the trial
court imposed as a condition of his probation that he not have unsupervised
contact with any minor child. Id. at 1285. After serving his maximum
sentence, Elliott was released and began serving his five-year probationary
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term. Id. at 1285-86. Elliott was given a form created by the Pennsylvania
Board entitled “Standard Special Conditions for Sex Offenders–Minor
Victims,” which included a condition that he not enter or loiter within 1,000
feet of areas where minors commonly congregate, including playgrounds,
youth recreation centers, and elementary schools. Id. at 1286.
Elliott’s probation officer observed him sitting near a large water
fountain in a park where young children were playing, closely observing a
young girl in a red bathing suit. Id. Elliott subsequently admitted to going
to the park regularly to watch children and being sexually aroused by the girl
in the red bathing suit. Id. at 1287. Elliott’s probation was revoked and he
was sentenced to two consecutive terms of two and a half to five years of
incarceration. Id. The trial court found, inter alia, that he had violated
supervision condition 19, that he avoid areas where persons under age 18
commonly congregate, such as the park fountain. Id.
On appeal, this Court reversed, finding that supervision condition 19
(no loitering within 1,000 feet) was not incorporated into the trial court’s
general no-contact requirement of Elliott’s probation. Id. at 1288. Citing
Vilsaint and MacGregor, this Court held that only the court, and not
probation officers, can impose terms and conditions of probation.
The Commonwealth appealed, and our Supreme Court vacated this
Court’s order, holding that the Board merely expounded upon the trial
court’s no-contact order:
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[W]e find that [s]upervision [c]ondition 19, that [Elliott] should not ‘enter or loiter within 1,000 feet of areas where the primary activity at such locations involve persons under the age of 18,’ is a permissible condition of supervision imposed by the Board and is derivative of the trial court’s condition of probation that Elliott not have unsupervised contact with minors.
Id. at 1292. The Court in Elliott distinguished MacGregor because, in that
case, the trial court had ordered a $25 probation administration fee as the
sole condition of probation, without actually setting forth any terms and
conditions of probation. Id. at 1292 n.4. Thus, the condition of supervision
imposed in MacGregor was not derivative of the condition of probation
imposed by the trial court, and therefore, the Board did not have authority
to impose the condition. Id. The matter was remanded to this Court for a
determination as to whether the evidence was in fact sufficient to sustain the
defendant’s probation revocation based upon supervision condition 19. Id.
at 1293.
In the instant case, counsel insists that Elliott is dispositive of
Appellant’s issue. We are not convinced. Elliott does not stand for the
general proposition that the Board may set conditions of supervision that a
probationer must follow or face revocation of probation. Instead, based
upon its reconciliation of the Sentencing Code and the Prisons and Parole
Code, Elliott demands that there be underlying conditions of probation set
by a trial court, which then may be expanded upon to some extent by the
Board.
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As Appellant correctly recognizes, outside of the disregarded
December 2016 order, the only condition of probation set by the trial court
appears to be the condition to pay costs, fines, and restitution in the 2002
sentencing order. Arguably, the conditions of supervision imposed by the
Board are not germane to this condition of probation set by the trial court.
Therefore, Appellant’s claim that his violations of the conditions of
supervision imposed by the Board were insufficient to revoke his probation is
not so clearly devoid of merit to warrant classifying this appeal as frivolous.9
From our review, it appears that counsel is able to put forward good-faith
arguments that the trial court erred by revoking his probation based upon
his violations of the conditions of supervision.
Accordingly, we deny counsel’s petition for leave to withdraw and
direct counsel to file an advocate’s brief within 60 days. The Commonwealth
may file a brief in response 30 days thereafter.
9 Appellant also raises a second related issue in his pro se Anders response. He contends that the revocation of his probation for violating conditions of his probation that were never court ordered violated his due process rights under the United States and Pennsylvania constitutions, because it deprived him of his “liberty to be free from probation [] violations.” Pro se Response at 12. As framed by Appellant, this issue has no merit. “[D]ue process does not afford relief absent a protected liberty interest.” Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013). There is no protected liberty interest to be free from probation violations when one is serving a sentence of probation.
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Petition to withdraw denied. Counsel directed to file an advocate’s
brief within 60 days. Appellant’s applications within his pro se response for
appointment of new counsel and publication denied. Jurisdiction retained.
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