Com. v. Scary, B. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SCARY, :
:
Appellant : No. 3369 EDA 2017
Appeal from the Judgment of Sentence September 8, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0002812-2016
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: Filed March 19, 2019
Appellant Brian Scary appeals from the judgment of sentence following
his revocation of probation. Appellant’s counsel has filed a petition to
withdraw and an Anders/Santiago brief.1 We affirm and grant counsel’s
petition to withdraw.
The facts underlying Appellant’s convictions are fully detailed in the trial
court’s opinion and need not be restated here. On August 16, 2016, Appellant
pled guilty to simple assault and tampering with physical evidence. 2 On
October 11, 2016, the trial court sentenced Appellant to one to twenty-three
and a half months’ incarceration for simple assault concurrent to two years’
probation for evidence tampering.
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
2 18 Pa.C.S. §§ 2701(a)(3) and 4910(1), respectively.
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The trial court summarized the relevant procedural history of this case
as follows:
[Appellant] was paroled on November 17, 2016, but a bench
warrant was issued for his arrest on May 15, 2017, for absconding
from supervision. The bench warrant was rescinded on May 26,
2017 with the stipulation that Appellant would be subject to GPS
monitoring and report on a weekly basis to his parole officer, and
a hearing was scheduled for June 14, 2017. A Gagnon[3]
reconsideration hearing was held on June 6, 2017, before the
Honorable C. Theodore Fritsch, at which time Judge Fritsch
determined that [Appellant] was to be held until his Gagnon II
parole/probation violation hearing which was scheduled for June
14, 2017. That hearing was rescheduled for August 16, 2017, and
again continued until September 8, 2017.
At the Gagnon II hearing on September 8, 2017, at which
[Appellant] was represented by his private previously retained
defense counsel, Louis R. Busico, Esquire, [(Attorney Busico)],
[Appellant] entered a Probation/Parole Violation Agreement
admitting that he violated the terms and conditions of his parole
and probation. After conducting a colloquy and accepting the
agreement, [the trial court] revoked [Appellant’s] parole and
probation and sentenced him to serve his backtime of twenty-two
(22) months and two (2) days, with credit for time served from
May 26, 2017 to the present. [Appellant] was presumptively
paroled as of September 12, 2017, upon his providing a verifiable
and acceptable address, and he was also directed, as a condition
of his parole, to participate in drug and alcohol and mental health
treatment until he was successfully discharged.
On September 11, 2017, [Attorney] Busico sent a letter to
[Appellant] summarizing the results of the September 8, 2017
hearing before this [c]ourt and advising him to abide by the
conditions of his probation/parole.
On October 6, 2017, [Appellant] filed pro se a Notice of Appeal to
the “Supreme Court of Pennsylvania” from the sentence issued on
September 8, 2017, along with a motion to proceed in forma
pauperis [(IFP)]. The IFP motion was granted on October 13,
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3 Gagnon v. Scarpelli, 411 U.S. 778, 789 (1973).
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2017, [Appellant] did not file any post-sentence motions, nor did
he request [Attorney] Busico to do so.
[Appellant’s] pro se appeal created some administrative confusion
as to whether he was still represented by counsel. [This Court]
observed that there was no indication in the Bucks County Court
of Common Pleas’ docket that [Appellant’s] trial defense counsel,
[Attorney] Busico, had been granted leave to withdraw. In
addition, Bucks County Senior Deputy Public Defender Lisa Y.
Williams, [(Attorney Williams)] notified [this Court] that
[Attorney] Busico was still considered [Appellant’s] attorney of
record. Consequently, [this Court] issued an order on November
29, 2017, directing [Attorney] Busico to inform the Court of the
status of [Appellant’s] representation and for [Attorney] Williams
to remain listed as [Appellant’s] counsel. [Attorney] Busico
thereafter sent a letter to the clerk of [this Court] on December
6, 2017, explaining that he had only been retained by [Appellant]
to represent him up to the Gagnon II hearing. Despite that
correspondence, [this Court] issued an order on December 11,
2017 directing [this Court’s] Prothonotary to relist [Attorney]
Busico, and not [Attorney] Williams, as [Appellant’s] counsel of
record, and further directing [Attorney] Busico to file an
appropriate motion if he intended to withdraw. [Attorney] Busico
subsequently filed a motion to withdraw as counsel of record on
January 19, 2018.
Trial Ct. Op., 9/11/18, at 2-5 (some capitalization omitted).
On April 6, 2018, this Court granted Attorney Busico’s motion to
withdraw and remanded the matter for a determination of whether Appellant
was eligible for court-appointed counsel on direct appeal. Order, 4/6/18.
Following a hearing, the trial court appointed Attorney Williams to represent
Appellant. On July 28, 2018, Attorney Williams requested an extension to file
a Pa.R.A.P. 1925(b) statement, pending her receipt and review of the
transcripts of testimony. Thereafter, on August 9, 2018, the trial court
ordered Appellant to file a Rule 1925(b) statement within ten days, which
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Appellant timely filed on August 10, 2018. The trial court filed a Rule 1925(a)
opinion and suggested that Appellant’s claims were meritless.
On October 26, 2018, Attorney Williams filed an Anders/Santiago brief
and a separate petition to withdraw. Attorney Williams also included a
certificate of service indicating that she had furnished both the letter advising
Appellant of his rights and the Anders/Santiago brief to Appellant. See Pet.
to Withdraw, 10/26/18. Appellant did not file a pro se brief or a counseled
brief with new, privately retained counsel.
Attorney Williams’ Anders/Santiago brief identifies the following
issues:
1. Whether Appellant’s admission that he was in violation of his
probation and his agreement to the sentence recommended by
adult probation and parole were knowing, voluntary, and
intelligent when his counsel failed to fully explain both the
sentence and the agreement in which the Appellant entered[.]
2. Whether Appellant received ineffective assistance of counsel
when he entered into a stipulation admitting that he was in
violation of his probation and agreeing to the recommended
sentence when his counsel failed to fully explain the nature of
the agreement to the Appellant[.]
3. Whether Appellant’s counsel at his probation violation hearing
was ineffective for failing to comply with Appellant’s request
[that] counsel file a post-sentence motion to either reconsider
Appellant’s sentence or to vacate Appellant’s sentence and
grant him a new violation hearing[.]
Anders/Santiago Brief at 5 (full capitalization omitted).
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
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request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009). The brief 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, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014) (some
citations omitted).
If counsel complies with these requirements, then “we will make a full
examination of the proceedings in the lower court and render an independent
judgment [as to] whether the appeal is in fact ‘frivolous.’” Id. at 882 n.7
(citation omitted). Finally, “this Court must conduct an independent review
of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
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(Pa. Super. 2015) (footnote and citation omitted); accord Commonwealth
v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
Here, Attorney Williams filed a petition to withdraw in which she stated
that she “diligently reviewed the record . . . and investigated all grounds of
appeal” and that she believes this appeal would be frivolous. Pet. to Withdraw
at ¶ 5-6. Attorney Williams also furnished a copy of the Anders/Santiago
brief to Appellant, as well as a letter advising Appellant of his right to retain
new counsel or proceed pro se. Ltr. to Appellant, 10/26/18. Moreover,
Attorney Williams’ brief provides a summary of the procedural history and the
relevant facts with appropriate citations to the record, refers to the issues that
she believes could arguably support the appeal, and sets forth her reasons for
her conclusion that an appeal is frivolous. Anders/Santiago Brief at 7-11,
13-24. Accordingly, Attorney Williams has complied with the requirements of
Anders and Santiago, and we will review the issues raised in her brief.
Attorney Williams first identifies Appellant’s claim that his decision to
enter a parole violation agreement was not knowing, intelligent, or voluntary.
Id. at 15. Specifically, Appellant argues that he was unaware that the agreed-
upon sentence included a two-year term of probation. Id. at 16.
“When reviewing the results of a revocation hearing, this Court is limited
to determining the validity of those proceedings, and the legality of the
judgment of sentence imposed.” Commonwealth v. Williams, 801 A.2d
584, 585 (Pa. Super. 2002).
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A violation hearing “is not a highly formal procedure in which traditional
rules of evidence and strict rules of procedure must be complied with.”
Commonwealth v. Bell, 410 A.2d 843, 844 (Pa. Super. 1979).
Nevertheless, a defendant who stipulates to a violation gives up important
rights; therefore, some on-the-record showing must be made at a violation
hearing to demonstrate that the defendant’s stipulation is voluntary. Id.In its Rule 1925(a) opinion, the trial court stated that
despite having signed a probation/parole violation agreement
while represented by private, reputable counsel in which he
acknowledged his parole and probation violations, and despite his
admission at the colloquy conducted at his parole violation hearing
on September 8 2017 that he knowingly, voluntarily and
intelligently entered into that agreement, Appellant is apparently
now exhibiting buyer’s remorse. . . .
Trial Ct. Op., 9/11/18, at 7. The court noted that at the hearing, Appellant
“was afforded the opportunity to ask any questions he may have had
regarding the terms of the agreement.” Id. The court concluded that
“pursuant to the colloquy conducted at the hearing on September 8, 2017,
[Appellant] voluntarily, knowingly, and intelligently entered into the subject
parole/probation violation agreement.” Id.Our review of the record confirms that Appellant signed a written
agreement that explicitly outlined the agreed-upon terms of his decision to
waive the hearing and admit the violation. See Probation/Parole Violation
Agreement, 9/8/17. Specifically, it provided that Appellant agreed to be found
in violation of his parole, that his parole was therefore revoked, and that
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Appellant would be sentenced to his backtime of twenty-two months and two
days. Id. The agreement further stated that Appellant would be
presumptively paroled to a verifiable address, which the probation department
was to verify no later than September 11, 2017. Id. It also stated that
Appellant was in violation of his probation, and that he was re-sentenced to a
two-year term of probation, which would run concurrent to his parole with an
effective date of September 8, 2017. Id.The record also confirms that Appellant participated in a colloquy with
the trial court. See N.T., 9/8/17, at 3-6. During the colloquy, Appellant
indicated that (1) he could read, write, and understand English; (2) he had a
written agreement setting forth the obligations under the agreement that was
reached; (3) he did not have questions about the agreement; (4) he entered
into the agreement voluntarily on his own free will, and that no one
threatened, coerced, or promised him anything beyond what was contained in
the agreement; (5) he had a right to contest the alleged violation; and (6) he
understood that he had a right to present evidence at a violation hearing. Id.Accordingly, the record demonstrates that Appellant voluntarily waived
his right to a hearing and that he knowingly entered the violation agreement,
which included a two-year probation term. See Bell, 410 A.2d at 843. We
further note that although Appellant was given the chance to inform the trial
court that he did not understand the document or the terms of his admission,
he did not do so. Therefore, we agree with Attorney Williams’ assessment
that an appeal on this basis would be frivolous.
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The two remaining claims identified by counsel relate to Attorney
Busico’s ineffectiveness at the revocation hearing. Specifically, Appellant
argues that Attorney Busico allegedly failed to explain the nature of the
stipulation to the parole and probation violation as well as the recommended
sentence. Anders/Santiago Brief at 18. Appellant also argues that Attorney
Busico was ineffective for allegedly failing to comply with Appellant’s request
to file post-sentence motions on his behalf. Id. at 22.
Generally, a criminal defendant may not assert claims of ineffective
assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79
A.3d 562, 577-80 (Pa. 2013). Instead, such claims are to be deferred to
PCRA4 review. Id. However, our Supreme Court has recognized three
exceptions to the general rule. In Holmes, the Supreme Court held that a
trial court has discretion to address ineffectiveness claims on direct review in
cases where (1) there are extraordinary circumstances in which trial counsel’s
ineffectiveness is apparent from the record and “meritorious to the extent that
immediate consideration best serves the interests of justice[;]” or (2) “there
is good cause shown and the defendant knowingly and expressly waives his
entitlement to seek subsequent PCRA review of his conviction and sentence.”
Holmes, 79 A.3d at 577. More recently, our Supreme Court adopted a third
exception, which requires “trial courts to address claims challenging trial
counsel’s performance where the defendant is statutorily precluded from
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4 Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
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obtaining subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d
352, 361 (Pa. 2018) (citations omitted).
Here, the record does not indicate that extraordinary circumstances
exist, or that Appellant waived his right to PCRA review. See Holmes, 79
A.3d at 577. Further, Appellant is not statutorily barred from seeking PCRA
relief. See Delgros, 183 A.3d at 361. Because none of the exceptions apply,
Appellant’s ineffectiveness claims cannot be considered on direct appeal.
Lastly, our independent review of the record does not reveal any
additional, non-frivolous issues in this appeal. See Yorgey, 188 A.3d at 1197.
Accordingly, we grant Attorney Williams’ petition to withdraw and affirm the
judgment of sentence.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2019
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