J-S56033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DAVID MICHAEL SMITH,
Appellant No. 767 MDA 2014
Appeal from the Judgment of Sentence April 4, 2014 in the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-CR-0003204-2001
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 07, 2014
Appellant, David Michael Smith, appeals from the sentence imposed
from representation pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
On April 2, 2003, a jury convicted Appellant of one count each of rape,
statutory sexual assault, involuntary deviate sexual intercourse, terroristic
threats, and corruption of minors; and two counts each of simple assault and
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S56033-14
indecent assault.1
daughter, was eleven-years-
old, and continued for a three-year period. When the victim was fourteen,
On June 11, 2003, the court sentenced Appellant to an aggregate term of
incarceration of not less than six nor more than twelve years, to be followed
by eight years of probation. (See N.T. Sentencing Hearing, 6/11/03, at 25-
26). The probationary sentences were applied to the convictions of one
count each of terroristic threats and corruption of minors, and two counts of
simple assault. (See id.).
Appellant was released from prison in June 2013. On August 27,
2013, the Commonwealth commenced violation of probation proceedings
against Appellant for his failure to comply with the term of his probation that
he attend and complete sex offender treatment. On November 8, 2013, the
trial court held a probation violation hearing. Brian Hoffman, of the
Pennsylvania Board of Probation and Parole, testified on the
See N.T. Probation Violation Hearing, 11/08/13,
at 6-24). Agent Hoffman stated that he began supervising Appellant on
Monday, June 17, 2013, after his release from prison on Saturday, June 15,
____________________________________________
1 18 Pa.C.S.A. §§ 3121(a)(6), 3122.1, 3123(a)(7), 2706(a)(1), 6301(a)(1), 2701(a)(1), and 3123(a)(7) and (8), respectively.
-2- J-S56033-14
2013. (See id. at 7, 19). At that time, Agent Hoffman review
conditions of probation with him, specifically, condition number eight, that
he was required to engage in sex offender treatment. (See id. at 8, 21-22).
He provided Appellant with all contact information for Triad Treatment
Specialists to enable him to enroll in therapy, but Appellant was very
resistant to treatment. (See id. at 11, 22-23). Agent Hoffman testified that
Triad Treatment Specialists did not admit Appellant into therapy because he
(Id. at 13). At that point, Appellant was taken into custody for violating the
terms of his probation. (See id. at 14).
Molly Simmons, a counselor from Triad Treatment Specialists, testified
that at her initial, July 2013, evaluation of Appellant, he indicated that he
Id. at 26; see id. at 25). On August 8, 2013, Appellant told Ms.
g [in treatment] if
[he] would be required [to admit that he had] intentional sexual contact with
Id. at 28). When advised that he could take a therapeutic
polygraph examination in lieu of treatment, Appellant stated that he refused
to pay for it. (See id. -examined both of
(See id. at 18-24, 30-37, 39-53).
-3- J-S56033-14
probation beca
all issues of credibility . . . [Appellant] has violated the terms of his
probation . . . [and] probation has been an ineffective means of promoting
Id. at 61). The court scheduled sentencing
for January 10, 2014, and ordered the preparation of a pre-sentence
investigation (PSI) report. (See id.).
On January 10, 2014, the court held a sentencing hearing, during
f testimony from the
probation violation hearing, and the record in this case. (See N.T. Hearing,
1/10/14, at 6-13). In pertinent part, the court found that Appellant refused
to participate [in sex offender treatment or] to pay for the polygraph
examination to determine whether, in fact, [he was] being deceptive with
Id. at 11). Thereafter, the court imposed
incarceration, followed by five years of probation. (See id. at 14; Violation
Sentence Sheet, 1/10/14, at 1).
Appellant filed a motion to modify sentence and, on January 29, 2014,
the court vacated its sentence and ordered a new sentencing hearing. At
the April 4, 2014 hearing, the court made the same factual findings as it had
previously, (see N.T. Re-Sentencing Hearing, 4/04/14, at 13, 25-30), and
imposed an aggregate sentence of not less than two and one-half nor more
-4- J-S56033-14
See id.
at 33; Violation Sentence Sheet, 4/04/14, at 1). Appellant timely appealed. 2
On July 7, 2014, counsel filed an application to withdraw and an
Anders brief on the basis that the appeal is frivolous.
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 - 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 co
[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 ____________________________________________
2 Pursuant to the se court that he would be filing an Anders brief. See Pa.R.A.P. 1925(c)(4). The court filed a Rule 1925(a) opinion on May 16, 2014, in which it stated omplained of on appeal, it
Court Opinion, 5/16/14, at 2); see also Commonwealth v. McBride, 957
file an Anders[] brief pursuant to Rule 1925(c)(4), a trial court opinion is
-5- J-S56033-14
Santiago, supra, that Anders
Santiago, supra at 360.
Anders brief and application to withdraw
substantially comply with the applicable technical requirements and reveal
conscientious examination of the record [and]
Lilley, supra at 997.
Additionally, the record establishes that counsel served Appellant with copies
of the Anders brief and the application to withdraw, and a notice that
advised Appellant of his right to retain new counsel or to proceed pro se and
raise additional issues to this Court. See id.; (see also Application For
Leave to Withdraw as Counsel, 7/07/14, Exhibit A). Further, the brief cites
to anything that arguably might support the appeal[ Lilley, supra at
997; (see also Anders Brief, at 13-16). As noted by our Supreme Court in
Santiago, the fact that some of coun
Free access — add to your briefcase to read the full text and ask questions with AI
J-S56033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DAVID MICHAEL SMITH,
Appellant No. 767 MDA 2014
Appeal from the Judgment of Sentence April 4, 2014 in the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-CR-0003204-2001
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 07, 2014
Appellant, David Michael Smith, appeals from the sentence imposed
from representation pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
On April 2, 2003, a jury convicted Appellant of one count each of rape,
statutory sexual assault, involuntary deviate sexual intercourse, terroristic
threats, and corruption of minors; and two counts each of simple assault and
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S56033-14
indecent assault.1
daughter, was eleven-years-
old, and continued for a three-year period. When the victim was fourteen,
On June 11, 2003, the court sentenced Appellant to an aggregate term of
incarceration of not less than six nor more than twelve years, to be followed
by eight years of probation. (See N.T. Sentencing Hearing, 6/11/03, at 25-
26). The probationary sentences were applied to the convictions of one
count each of terroristic threats and corruption of minors, and two counts of
simple assault. (See id.).
Appellant was released from prison in June 2013. On August 27,
2013, the Commonwealth commenced violation of probation proceedings
against Appellant for his failure to comply with the term of his probation that
he attend and complete sex offender treatment. On November 8, 2013, the
trial court held a probation violation hearing. Brian Hoffman, of the
Pennsylvania Board of Probation and Parole, testified on the
See N.T. Probation Violation Hearing, 11/08/13,
at 6-24). Agent Hoffman stated that he began supervising Appellant on
Monday, June 17, 2013, after his release from prison on Saturday, June 15,
____________________________________________
1 18 Pa.C.S.A. §§ 3121(a)(6), 3122.1, 3123(a)(7), 2706(a)(1), 6301(a)(1), 2701(a)(1), and 3123(a)(7) and (8), respectively.
-2- J-S56033-14
2013. (See id. at 7, 19). At that time, Agent Hoffman review
conditions of probation with him, specifically, condition number eight, that
he was required to engage in sex offender treatment. (See id. at 8, 21-22).
He provided Appellant with all contact information for Triad Treatment
Specialists to enable him to enroll in therapy, but Appellant was very
resistant to treatment. (See id. at 11, 22-23). Agent Hoffman testified that
Triad Treatment Specialists did not admit Appellant into therapy because he
(Id. at 13). At that point, Appellant was taken into custody for violating the
terms of his probation. (See id. at 14).
Molly Simmons, a counselor from Triad Treatment Specialists, testified
that at her initial, July 2013, evaluation of Appellant, he indicated that he
Id. at 26; see id. at 25). On August 8, 2013, Appellant told Ms.
g [in treatment] if
[he] would be required [to admit that he had] intentional sexual contact with
Id. at 28). When advised that he could take a therapeutic
polygraph examination in lieu of treatment, Appellant stated that he refused
to pay for it. (See id. -examined both of
(See id. at 18-24, 30-37, 39-53).
-3- J-S56033-14
probation beca
all issues of credibility . . . [Appellant] has violated the terms of his
probation . . . [and] probation has been an ineffective means of promoting
Id. at 61). The court scheduled sentencing
for January 10, 2014, and ordered the preparation of a pre-sentence
investigation (PSI) report. (See id.).
On January 10, 2014, the court held a sentencing hearing, during
f testimony from the
probation violation hearing, and the record in this case. (See N.T. Hearing,
1/10/14, at 6-13). In pertinent part, the court found that Appellant refused
to participate [in sex offender treatment or] to pay for the polygraph
examination to determine whether, in fact, [he was] being deceptive with
Id. at 11). Thereafter, the court imposed
incarceration, followed by five years of probation. (See id. at 14; Violation
Sentence Sheet, 1/10/14, at 1).
Appellant filed a motion to modify sentence and, on January 29, 2014,
the court vacated its sentence and ordered a new sentencing hearing. At
the April 4, 2014 hearing, the court made the same factual findings as it had
previously, (see N.T. Re-Sentencing Hearing, 4/04/14, at 13, 25-30), and
imposed an aggregate sentence of not less than two and one-half nor more
-4- J-S56033-14
See id.
at 33; Violation Sentence Sheet, 4/04/14, at 1). Appellant timely appealed. 2
On July 7, 2014, counsel filed an application to withdraw and an
Anders brief on the basis that the appeal is frivolous.
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 - 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 co
[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 ____________________________________________
2 Pursuant to the se court that he would be filing an Anders brief. See Pa.R.A.P. 1925(c)(4). The court filed a Rule 1925(a) opinion on May 16, 2014, in which it stated omplained of on appeal, it
Court Opinion, 5/16/14, at 2); see also Commonwealth v. McBride, 957
file an Anders[] brief pursuant to Rule 1925(c)(4), a trial court opinion is
-5- J-S56033-14
Santiago, supra, that Anders
Santiago, supra at 360.
Anders brief and application to withdraw
substantially comply with the applicable technical requirements and reveal
conscientious examination of the record [and]
Lilley, supra at 997.
Additionally, the record establishes that counsel served Appellant with copies
of the Anders brief and the application to withdraw, and a notice that
advised Appellant of his right to retain new counsel or to proceed pro se and
raise additional issues to this Court. See id.; (see also Application For
Leave to Withdraw as Counsel, 7/07/14, Exhibit A). Further, the brief cites
to anything that arguably might support the appeal[ Lilley, supra at
997; (see also Anders Brief, at 13-16). As noted by our Supreme Court in
Santiago, the fact that some of coun
frivolity of the appeal does not violate the requirements of Anders. See
Santiago, supra at 360-61.
comply with the technical Anders requirements,
Lilley,
supra at 998 (citation omitted).
-6- J-S56033-14
The Anders
appellate counsel be permitted to withdraw as counsel because any appellate
Anders Brief, at 4). Counsel
appeal his judgment of sentence[, but that he] has not communicated to
Id. at 12). However, the Anders
brief addresses the question of whether the evidence was sufficient to
n. (Id. at 14). Accordingly,
we will conduct our own independent review of this issue.
Our scope of review of an appeal from a sentence imposed following
the revocation of probation is well-settled:
Our 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. 42 Pa.C.S.[A.] § 9771(b). Also, upon sentencing following a revocation of probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence.
Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)
(case citations omitted).
A probation violation is established whenever it is shown that the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct.
Moreover, the Commonwealth need only make this showing by a preponderance of the evidence.[1]
-7- J-S56033-14
burden of proof in the administration of justice, and it is defined as the greater weight of the evidence,
Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010), appeal
denied, 20 A.3d 1211 (Pa. 2011) (citations omitted).
probation officer,
all contact information for Triad Treatment Specialists, but that Appellant
was not admitted into treatment. (See N.T. Probation Violation Hearing,
11/08/13, at 7-8, 11, 13, 19-23). Triad counselor Molly Simmons testified
that Appellant was not admitted into sexual offender treatment because of
his continued failure to admit that he had committed the acts for which he
was convicted, and his refusal to pay for a therapeutic polygraph
examination in lieu of counseling. (See id. at 25-26, 28-29).
finding that Appellant had violated the terms of his probation by failing to
Id. at 61); see
also Ortega, supra at 886.
Moreover, we observe that, when Appellant originally was sentenced,
he faced a maximum aggregate term of incarceration of fourteen years for
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the crimes of simple assault, terroristic threats, and corruption of minors.
(See N.T. Re-Sentencing, 4/04/14, at 22-23, 26); see also 18 Pa.C.S.A. §
1104(1), (2). Therefore, the sentence of not less than two and one-half nor
imposed after his probation revocation, the maximum
sentence that [the court] could have imposed originally at the time of the
MacGregor, supra at 317.
Lilley, supra at 998; see also
MacGregor, supra at 317. Additionally, we find no other non-frivolous
issues.
granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/7/2014
-9-