Com. v. Thompson, A.

• Court: Superior Court of Pennsylvania
• Decided: April 14, 2015
• Docket: 1520 EDA 2014
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ALSHIEM THOMPSON

Appellant No. 1520 EDA 2014

Appeal from the Judgment of Sentence November 14, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007558-2007 CP-51-CR-0011042-2007

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 14, 2015

Appellant, Alshiem Thompson, appeals from the judgment of sentence

entered after his probation and parole were revoked due to the filing of new

charges against him. Additionally, Thompson’s court appointed counsel,

Jennifer A. Santiago, Esq., has filed an application to withdraw as counsel

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful

review, we affirm Thompson’s judgment of sentence and grant counsel’s

petition to withdraw.

On September 24, 2012, Thompson was arrested when he was found

in a van with his legs over a mat that concealed a loaded handgun. At the

time, Thompson was on parole from a conviction for possession of a J-S03022-15

controlled substance, as well as being on probation for a conviction for

possession of a controlled substance with intent to deliver (“PWID”).

The Commonwealth moved to revoke both his probation and his

parole, and a revocation hearing was held before the Honorable Glenn B.

Bronson, who had not imposed either of the underlying sentences. At the

end of the hearing, Judge Bronson found Thompson to be in violation of the

terms of his probation and parole, and revoked both. After a sentencing

hearing on November 14, 2013, Judge Bronson sentenced Thompson to a

term of imprisonment of 1 1/2 to 5 years, followed by 3 years of probation

on the probation violation, and sentenced Thompson to back time on the

parole violation. Thompson filed a timely motion for reconsideration of

sentence on Monday, November 25, 2013.1 Judge Bronson denied

Thompson relief, and Thompson filed this appeal pro se.2

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1 Prior to filing the motion for reconsideration, Thompson filed a notice of appeal to this Court. That appeal was withdrawn by Thompson shortly after he filed the motion for reconsideration. Thompson’s notice of appeal filed on April 10, 2014 was untimely. See Commonwealth v. Coleman, 721 A.2d 798 (Pa. Super. 1998). However, at the close of sentencing, Judge Bronson requested Thompson’s then-counsel to file a motion for reconsideration to “protect his appellate rights” before withdrawing from the case. See N.T., 11/14/13, at 89. We conclude that since the procedure followed by counsel followed the directions given by Judge Bronson, the untimely appeal in this case was the result of a breakdown in the court’s operation, and therefore decline to quash the appeal. See Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001). 2 Thompson filed one notice of appeal covering both sentences. The filing of one notice of appeal from orders entered at different docket numbers “has (Footnote Continued Next Page)

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_______________________ (Footnote Continued)

long been discouraged.” 20 G. Ronald Darlington, et al., Pennsylvania Appellate Practice § 341:3.102 (2013-2014 ed.) (footnote omitted). This policy is set forth in the Note to Rule 341, which states that “[w]here, however, one or more orders resolve issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed.” Pa.R.A.P., 341 Note.

Courts, however, have not automatically quashed such appeals. For instance, our Supreme Court considered this question in General Electric Credit Corp. v. Aetna Casualty & Surety Co., 263 A.2d 448 (Pa. 1970), where the appellant filed a single appeal from two separate judgments entered against it. Upon considering these facts, our Supreme Court stated:

Taking one appeal from several judgments is not acceptable practice and is discouraged. It has been held that a single appeal is incapable of bringing on for review more than one final order, judgment or decree. When circumstances have permitted, however, we have refrained from quashing the whole appeal, but this Court has quashed such appeals where no meaningful choice could be made.

Id. at 452-453 (internal citations and footnotes omitted).

Similarly, this Court, citing General Electric Credit Corp., declined to quash where counsel for appellants filed only one notice of appeal from separate orders denying each appellant’s motion to intervene. See Egenrieder v. Ohio Casualty Group, 581 A.2d 937, 940 n.3 (Pa. Super. 1990). The panel noted that counsel should have filed a separate notice of appeal for each appellant and that the appeals would then have been subject to consolidation. See id. But see Commonwealth v. C.M.K., 932 A.2d 111 (Pa. Super. 2007) (court quashing single notice of appeal by criminal co-defendants who were tried jointly but sentenced individually).

Thus, the filing of one notice of appeal is “discouraged,” but both our Supreme Court and this Court have refrained from quashing an appeal where “circumstances have permitted.” Our examination of the circumstances of this appeal lead us to the conclusion that it is appropriate to review both the revocation of parole and the revocation of probation in this single appeal.

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As noted, Thompson’s appointed counsel has requested to withdraw

and has submitted an Anders brief in support thereof contending that

Appellant’s appeal is frivolous. The Supreme Court of Pennsylvania has

articulated the procedure to be followed when court-appointed counsel seeks

to withdraw from representing an appellant on direct appeal:

[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 arguably believes 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

We note that counsel has complied with the technical requirements of

Anders as articulated in Santiago. Additionally, counsel confirms that she

sent a copy of the Anders brief to Thompson as well as a letter explaining to

Thompson that he has the right to proceed pro se or the right to retain new

counsel. A copy of the letter is appended to counsel’s Anders brief, as

required by this Court. See Commonwealth v. Daniels, 999 A.2d 5990,

594 (Pa. Super. 2010); Commonwealth v. Millisock, 873 A.2d 748 (Pa.

Super. 2005).

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We will now proceed to examine the issues counsel has set forth in the

Anders brief.3 Counsel identifies only two issues for our review. Thompson

contends that Judge Bronson did not have jurisdiction over his probation or

parole, as Judge Bronson was not the judge who had imposed the original

sentences.

On appeal from a judgment of sentence following the revocation of

probation

[o]ur 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).

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).

“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. Ahmad, 961 A.2d 884, 888 (Pa. Super.

2008) (citation omitted). A court may revoke an order of probation upon

proof of the violation of specified conditions of the probation. See

Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005). “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

3 Thompson has not filed a response to counsel’s petition to withdraw.

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vehicle to accomplish rehabilitation and not sufficient to deter against future

antisocial conduct.” Id., at 791 (citations omitted). Technical violations are

sufficient to trigger revocation. See Commonwealth v. Sierra, 752 A.2d

910 (Pa. Super. 2000).

Counsel certifies that she has found no authority to support

Thompson’s argument that Judge Bronson did not have jurisdiction, and the

Commonwealth agrees. Our own independent review has found no such

authority. Furthermore, Thompson’s argument elevates a mere preference

to a jurisdictional rule. Obviously, the court system prefers to allow a

sentencing judge, who best knows the circumstances of the sentence

imposed, the opportunity to deal with alleged violations of that sentence.

However, that preference is administrative only, and does not constitute a

right held by defendants. We therefore agree with counsel that this issue is

wholly meritless.

Next, Thompson contends that the sentence imposed is excessive.

This claim raises a challenge to the discretionary aspects of the sentence

imposed. See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa.

Super. 2007).

“A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

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of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence. See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274 (citation omitted). “First, an appellant must set forth in his brief a

concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.” Id. (citation omitted).

“Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id. (citation omitted). That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.” Tirado,

870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)

statement to determine whether a substantial question exists. 4 See id.

“Our inquiry must focus on the reasons for which the appeal is sought, in

4 Rule 2119 provides the following, in pertinent part:

(f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

Pa.R.A.P., Rule 2119(f), 42 PA.CONS.STAT.ANN.

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contrast to the facts underlying the appeal, which are necessary only to

decide the appeal on the merits.” Id. (citation omitted).

In the present case, Thompson’s appellate brief does not contain the

requisite Rule 2119(f) concise statement, and, as such, this issue could be

technically waived. See, e.g., Commonwealth v. Gambal, 561 A.2d 710,

713 (Pa. 1989). Furthermore, the argument section of counsel’s Anders

brief does not separately list the arguments regarding each issue identified.

However, rather than remand for an appropriate Anders brief, we will

address Thompson’s issue on the merits in the interest of judicial efficiency.

Thompson argues that the sentence imposed by the trial court was

excessive. It is well-settled that a generic claim that a sentence is excessive

does not raise a substantial question for our review. See, e.g.,

Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013).

Additionally, we observe that Judge Bronson thoroughly identified the factors

that led him to impose the sentences at issue: Thompson’s significant

criminal history, the leniency the sentencing courts had initially shown and

Thomspon had abused, and Thompson’s inability to recognize the

seriousness of the charges he was facing. Pursuant to this reasoning, we

conclude that the sentences imposed by Judge Bronson do not constitute an

abuse of discretion, and therefore, we agree with counsel that this issue is

wholly frivolous.

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After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

Judgment of sentence affirmed. Permission to withdraw as counsel is

granted. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/14/2015

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