Com. v. Lee, J. ( 2018 )


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  • J-S53030-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                         :
    :
    :
    JOHN HOWARD LEE                          :
    :
    Appellant             :   No. 3880 EDA 2016
    Appeal from the Judgment of Sentence November 10, 2016
    In the Court of Common Pleas of Delaware County
    Criminal Division at No(s): CP-23-CR-0001315-2011
    BEFORE:    GANTMAN, P.J., OTT, J., and PLATT*, J.
    MEMORANDUM BY OTT, J.:                          FILED NOVEMBER 08, 2018
    John Howard Lee appeals from the judgment of sentence imposed
    November 10, 2016, in the Delaware County Court of Common Pleas. Upon
    stipulation to a technical violation of parole, the trial court re-sentenced Lee
    to 380 days full back time, to be aggregated with his existing state sentence
    with parole no sooner than his maximum date. Contemporaneous with this
    appeal, Lee’s counsel has filed a petition to withdraw from representation and
    an Anders brief.      See Anders v. California, 
    386 U.S. 738
    (1967);
    Commonwealth v. McClendon, 
    434 A.2d 1185
    (Pa. 1981). The sole issue
    addressed in the Anders brief is a challenge to the discretionary aspects of
    Lee’s sentence. For the reasons below, we affirm, and grant counsel’s petition
    to withdraw.
    ____________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-S53030-18
    The facts of Lee’s underlying conviction are not pertinent to our
    disposition of his appeal. We briefly note that on May 5, 2011, Lee originally
    entered into a negotiated guilty plea to driving under the influence (“DUI”)
    (highest rate of alcohol/third or subsequence offense) and driving while
    license is suspended/revoked.1 That same day, the court sentenced Lee to an
    aggregate term of 18 to 30 months’ imprisonment, followed by two years’
    probation. He subsequently violated the terms of his parole and, following a
    Gagnon II2 hearing on November 10, 2016, was sentenced to full back time
    of 380 days. This timely appeal followed.3
    When counsel files a petition to withdraw and accompanying Anders
    brief, we must first examine the request to withdraw before addressing any of
    the substantive issues raised on appeal. See Commonwealth v. Bennett,
    
    124 A.3d 327
    , 330 (Pa. Super. 2015). Here, our review of the record reveals
    counsel has substantially complied with the requirements for withdrawal
    ____________________________________________
    1   See 75 P.S. §§ 3802(c) and 1543(b)(1), respectively.
    2   See Gagnon v. Scarpelli, 
    411 U.S. 778
    (1973).
    3   On December 15, 2016, the trial court ordered Lee to file a concise
    statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
    On January 4, 2017, Lee’s counsel filed a statement of his intent to file an
    Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4). On April 4, 2018,
    the trial court filed an opinion, stating that because counsel filed a Rule
    1925(c)(4) statement and expressed the intention to file an Anders brief, it
    would “refrain from entering any opinion on the merits” of Lee’s appeal.
    Opinion, 4/4/2018, at unnumbered 2.
    -2-
    J-S53030-18
    outlined in 
    Anders, supra
    , and its progeny. Specifically, counsel requested
    permission to withdraw based upon his determination that the appeal is
    “wholly frivolous,”4 filed an Anders brief pursuant to the dictates of
    Commonwealth v. Santiago, 
    978 A.2d 349
    , 361 (Pa. 2009), furnished a
    copy of the Anders brief to Lee and advised Lee of his right to retain new
    counsel or proceed pro se. See Commonwealth v. Cartrette, 
    83 A.3d 1030
    ,
    1032 (Pa. Super. 2013) (en banc). Moreover, our review of the record reveals
    no correspondence from Lee responding to the Anders brief. Accordingly, we
    will proceed to examine the record and make an independent determination
    of whether the appeal is wholly frivolous. See Commonwealth v. Flowers,
    
    113 A.3d 1246
    , 1248 (Pa. Super. 2015).
    The only issue identified in counsel’s Anders brief challenges the
    appropriateness of Lee’s sentence:
    At the Gagnon II hearing herein, Mr. Lee stipulated that he
    was in violation of his probation [sic]. The record reflects,
    however, that he has been engaged in various beneficial programs
    while imprisoned. These include drug and alcohol programs such
    as Alcoholics Anonymous meetings, and anger management
    programs.
    The Judge nevertheless revoked his parole and re-
    sentenced him to serve his full back[t]ime of 380 days.
    Counsel believes an issue of arguable merit exists as to
    whether that new sentence is harsh and excessive under the
    circumstances.
    ____________________________________________
    4   See Application to Withdraw Appearance, 6/20/2018, at ¶ 3.
    -3-
    J-S53030-18
    This issue, however, is frivolous since the [trial court] had
    no discretion to impose any sentence other than full backtime for
    a parole violation. See Commonwealth v. Galletta, 
    864 A.2d 532
    (Pa. Super. 2004). Moreover, the Court had to take into
    consideration the fact that Mr. Lee violated his parole by
    committing his fourth DUI.
    Anders Brief at 5 (record citations omitted).
    Our review of a parole revocation hearing and concomitant sentence is
    well-established:
    Unlike a probation revocation, a parole revocation does not
    involve the imposition of a new sentence. Commonwealth v.
    Mitchell, 429 Pa.Super. 435, 
    632 A.2d 934
    , 936 (1993). Indeed,
    there is no authority for a parole-revocation court to impose a new
    penalty. 
    Id. Rather, the
    only option for a court that decides to
    revoke parole is to recommit the defendant to serve the already-
    imposed, original sentence. 
    Id. … Therefore,
    the purposes of a court’s parole-revocation
    hearing—the revocation court’s tasks—are to determine whether
    the parolee violated parole and, if so, whether parole remains a
    viable means of rehabilitating the defendant and deterring future
    antisocial  conduct,    or   whether     revocation,  and    thus
    recommitment, are in order. 
    Mitchell, 632 A.2d at 936
    , 937. …
    Following parole revocation and recommitment, the proper
    issue on appeal is whether the revocation court erred, as a matter
    of law, in deciding to revoke parole and, therefore, to recommit
    the defendant to confinement. 
    Mitchell, 632 A.2d at 936
    .
    Accordingly, an appeal of a parole revocation is not an
    appeal of the discretionary aspects of sentence. 
    Id. As such,
    a defendant appealing recommitment cannot
    contend, for example, that the sentence is harsh and excessive.
    
    Galletta, 864 A.2d at 539
    .         Such a claim might implicate
    discretionary sentencing but it is improper in a parole-revocation
    appeal. 
    Id. Similarly, it
    is inappropriate for a parole-revocation
    appellant to challenge the sentence by arguing that the court
    failed to consider mitigating factors or failed to place reasons for
    sentence on the record. Commonwealth v. Shimonvich, 
    858 A.2d 132
    , 135 (Pa. Super. 2004). Challenges of those types again
    -4-
    J-S53030-18
    implicate the discretionary aspects of the underlying sentence, not
    the legal propriety of revoking parole. 
    Id. Commonwealth v.
    Kalichak, 
    943 A.2d 285
    , 290–291 (Pa. Super. 2008)
    (emphasis supplied).
    As the Kalichak Court explained, and as acknowledged in the Anders
    brief, “the only option for a court that decides to revoke parole is to recommit
    the defendant to serve the already-imposed, original sentence.” 
    Id. at 290.
    As such, Lee’s claim that his re-sentence is harsh and excessive because the
    court ordered him to serve his full back time invokes a challenge to the
    discretionary aspects of sentencing, an issue that is not appropriate in an
    appeal from a parole revocation sentence. See 
    id. at 291.
    Accordingly, we
    conclude Lee has failed to present any viable claim for our review.
    Because we agree with counsel’s assessment that this appeal is wholly
    frivolous, we affirm the judgment of sentence and grant counsel’s petition to
    withdraw.
    Judgment of sentence affirmed.        Petition to withdraw as counsel
    granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/8/18
    -5-