Com. v. Washington, R.

Opinion

J-S06008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONALD WASHINGTON : : Appellant : No. 1720 EDA 2018

Appeal from the Order Entered April 25, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002172-2004

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED APRIL 17, 2019

Ronald Washington appeals from the judgment of sentence of one-and-

one-half to three years of imprisonment following revocation of his probation.

Appellant’s counsel, Patrick J. Connors, Esquire, has filed an application 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 affirm the

judgment of sentence and grant counsel’s application to withdraw.

In 2005, Appellant was convicted of possession of a firearm without a

license, as well as of multiple counts robbery, simple assault, recklessly

endangering another person, and criminal conspiracy. He was sentenced to

an aggregate term of six to twelve years of imprisonment followed by six years

of probation. In 2016, while he was out on parole, Appellant was arrested on

new drug charges. As a result, the state board of parole recommitted

Appellant to serve his back time in the instant case. Appellant was also J-S06008-19

separately charged with violation of the terms of his probation (“VOP”), and

he waived his right to a Gagnon I hearing.1

In February and March 2017, Appellant was convicted and sentenced on

the new drug charges. At a Gagnon II hearing on April 25, 2018, the VOP

court held that Appellant violated the terms of his probation in the instant

case, revoked his probation, and imposed a new sentence of one-and-one-

half to three years of imprisonment, to be served consecutive to the sentence

imposed in the drug case. This timely appeal followed.

In this Court, Appellant’s counsel filed both an Anders brief and a

petition to withdraw as counsel, and Appellant filed a pro se response

challenging counsel’s analysis. Accordingly, the following principles guide our

review of this matter.

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.

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1 “A Gagnon I hearing is a pre-revocation hearing to determine if probable cause exists that a violation was committed. After this determination is made, a Gagnon II hearing is conducted where the Commonwealth is required to establish that the defendant did violate his parole/probation.” Commonwealth v. Stafford, 29 A.3d 800, 802 n.1 (Pa.Super. 2011) (citation omitted). See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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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.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted). However, “when an appellant, either acting pro se or

through private counsel, files a response to the Anders brief, our independent

review is limited to those issues raised in the Anders brief. We then review

the subsequent pro se or counseled filing as we do any advocate’s brief.”

Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa.Super. 2015).

Our Supreme Court has clarified portions of the Anders procedure as

follows:

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, supra at 361.

In his pro se response, Appellant contends that counsel did not

substantially comply with the requirements of Anders and Santiago.

Specifically, while acknowledging that counsel provided a summary of the case

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history, Appellant claims that counsel failed to refer to case law that might

arguably support his issues. Appellant’s pro se response at 10.

We disagree. Based upon our examination of counsel’s petition to

withdraw and Anders brief, we conclude that counsel has substantially

complied with the technical requirements set forth above. As required by

Santiago, counsel set forth the case history, referred to an issue that

arguably supports the appeal, stated his conclusion that the appeal is

frivolous, and cited to controlling case law which supports that conclusion.

See Anders brief at 4-6. Accordingly, we proceed to an independent review

of the issue identified by counsel, as well as consideration of the additional

issues raised by Appellant. See Bennett, supra at 333.

Counsel posits the following question of arguable merit: “Whether the

sentences imposed on [Appellant] for violating his probation should be

vacated where he was not yet on probation when the violations occurred?”

Anders brief at 3. We consider the question mindful that, on appeal from a

sentence imposed following revocation of probation, our review is limited to

issues of the validity of the proceedings and the legality and discretionary

aspects of the sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1033–

34 (Pa.Super. 2013) (en banc).

This Court has noted that “a term of probation. . . may and should be

construed for revocation purposes as including the term beginning at the time

probation is granted.” Commonwealth v. Ware, 737 A.2d 251, 254

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(Pa.Super. 1999) (citation and internal quotation marks omitted). At this

Court explained:

If, at any time before the defendant has completed the maximum period of probation, or before he has begun service of his probation, he should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation and that the granting of the same would not be in subservience to the ends of justice and the best interests of the public, or the defendant, the court could revoke or change the order of probation. A defendant on probation has no contract with the court. He is still a person convicted of crime, and the expressed intent of the Court to have him under probation beginning at a future time does not change his position from the possession of a privilege to the enjoyment of a right.

Commonwealth v. Hoover, 909 A.2d 321, 323-24 (Pa.Super. 2006)

(internal quotation marks and citation omitted; emphasis in original) (quoting

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

As such, a court may revoke probation for violations occurring while the

defendant “was on parole at the time and had not yet begun her probationary

term.” Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000).

See also Ware, supra at 253 (“The fact that appellant had not commenced

serving probation when the new offense occurred did not prevent the court

from revoking its prior order placing appellant on probation.”).

Accordingly, we agree with counsel that the fact that Appellant had not

completed the incarceration portion of his split sentence when he committed

the drug crimes did not deprive the VOP court of the authority to revoke

Appellant’s probation and impose a new sentence. We now consider the issues

raised by Appellant in his pro se response.

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Appellant alleges that (1) either the trial court lacked jurisdiction to

revoke his probation or the trial court’s authority to do so constituted an ex

post facto violation; and (2) the VOP sentence violates his double jeopardy

rights. Specifically, Appellant argues that, under 61 P.S. § 314, “the Gagnon

II procedures should have been governed by the Pennsylvania Board of

Probation and Parole where his aggregate sentence . . . imposed during the

year of 2005 had not yet expired and the conditions of his probation had not

beg[u]n.” Appellant’s pro se response at 16. To the extent that the trial court

relied upon a statute enacted in 2009 to support its authority, Appellant

contends his ex post facto rights were violated. Id. Given that the Board did

not revoke Appellant’s probation at the time it revoked his parole, Appellant

contends that its subsequent revocation at the VOP proceeding violated his

double jeopardy rights. Id. at 13.

None of Appellant’s arguments has merit. The legislature repealed 61

P.S. § 314 (“Parole from county jails, houses of correction, or workhouses;

procedure; violation of parole; re-parole”) in 2009. Moreover, under the

repealed statutory scheme, the trial court that imposed the original sentence

“retained the power, authority, or jurisdiction” to decide whether the

defendant violated the terms of his probation, to revoke probation, and to

resentence the defendant, even where the Board was supervising the

defendant’s probation. Commonwealth v. Mitchell, 955 A.2d 433, 441

(Pa.Super. 2008). Hence, the trial court had jurisdiction to adjudicate the VOP

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proceedings, and there is no ex post facto concern. See 42 Pa.C.S. § 9771(b)

(“The court may revoke an order of probation upon proof of the violation of

specified conditions of the probation.”).

Nor does Appellant’s double jeopardy contention warrant relief. Our

Supreme Court has explained that “probation and parole are not part of the

criminal prosecution[.]” Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa.

2007). Therefore, “[r]evocation of probation and resentencing does not

implicate double jeopardy precisely because ‘revocation is not a second

punishment for the original conviction, but rather is an integral element of the

original conditional sentence.’” Commonwealth v. Johnson, 967 A.2d 1001,

1005 (Pa.Super. 2009) (quoting Mullins, supra at 85). The fact that the

Board of Probation and Parole separately revoked his parole prior to the

proceedings before the VOP court does not alter the analysis. See Knox v.

Pennsylvania Bd. of Prob. & Parole, 588 A.2d 79, 81 (Pa. Cmwlth. 1991)

(acknowledging that the “double jeopardy provisions of both the United States

and Pennsylvania Constitutions do not apply to parole revocation proceedings

of the Board”).

For the foregoing reasons, we affirm Appellant’s judgment of sentence

and grant counsel’s application to withdraw.

Judgment of sentence affirmed. Application of Patrick J. Connors,

Esquire, to withdraw as counsel is granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/17/19

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