Com. v. Profeto, R. ( 2019 )

J-S14044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT W PROFETO :
:
Appellant : No. 2728 EDA 2018
Appeal from the Judgment of Sentence Entered August 22, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004489-2016
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 02, 2019
Robert W. Profeto (Profeto) appeals from the judgment of sentence
entered by the Court of Common Pleas of Delaware County (trial court) after
his parole was revoked. Counsel has petitioned to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967). The sole issue in the brief is that
the trial court imposed an excessively harsh prison sentence of one year. We
grant counsel’s petition and affirm the judgment of sentence.
I.
In September 2016, Profeto pleaded guilty to possession of drug
paraphernalia. He received a negotiated sentence of one year of probation.
After his probation was revoked due to a violation, Profeto was sentenced to
a prison term of four to twelve months. Before completing that sentence,
Profeto was released on parole, the conditions of which required him to report
weekly to the Office of Probation and Parole, refrain from substance
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* Retired Senior Judge assigned to the Superior Court.
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possession and abuse, submit to drug testing, pay court costs and fees, and
complete outpatient therapy for substance abuse.
At a parole violation hearing held in August 2018, a member of the Office
of Probation and Parole testified that Profeto had failed to report on five
occasions and did not submit to drug testing or make any payments toward
his court costs and fees. Profeto explained that he had only failed to report
on days when he was either in the hospital or in jail. The trial court found
Profeto in violation of his parole conditions and ordered him to serve the
previously imposed sentence with full credit for backtime. Profeto timely
appealed.
Profeto’s appellate counsel, Patrick J. Connors, Esq., has petitioned to
withdraw from representation in this appeal and has submitted a brief
pursuant to Anders and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). Before we address the merits of the issue raised in the brief, we must
first rule on counsel’s petition. See Commonwealth v. Daniels, 999 A.2d
590, 593 (Pa. Super. 2010) (“When presented with an Anders brief, this Court
may not review the merits of the underlying issues without first passing on
the request to withdraw.”).
II.
Anders requires court-appointed appellate counsel to “petition the court
for leave to withdraw and state that after making a conscientious examination
of the record, [s]he has determined that the appeal is frivolous.”
Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012)
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(quoting Santiago, 978 A.2d at 361). Counsel must then file an Anders brief
which includes the following contents:
(1) a summary of the procedural history and facts, with citations
to the record;
(2) reference to anything in the record that counsel believes
arguably supports the appeal;
(3) counsel’s conclusion that the appeal is frivolous; and
(4) 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.
When an Anders brief is filed, counsel must furnish a copy to the client.
Commonwealth v. Orellana, 86 A.3d 877, 879–80 (Pa. Super. 2014).
Counsel must also attach a letter to the brief advising of the right to (1) retain
new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise
additional meritorious issues that the appellant deems worthy of the court’s
attention but which were not included in the Anders brief. Id.In this case, counsel stated in the petition to withdraw that he reviewed
the file and the record, advised Profeto of his appellate rights, and notified
Profeto of the petition’s filing. As to the other requirements for the Anders
brief which have been enumerated above, we find that counsel has
substantially complied. Counsel summarized the pertinent case facts and
procedural history. Profeto was furnished with a copy of the brief which
outlines parts of the record which might arguably support the appeal. Counsel
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explained in the brief why those grounds are wholly frivolous, warranting
counsel’s withdrawal. The petition to withdraw is, therefore, granted.
III.
Once a reviewing court concludes that counsel has met the technical
obligations to withdraw, the court must “make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. The issue raised
in the present Anders brief is whether the trial court erred in ordering Profeto
to serve a prison term of one year upon a violation of parole. (Brief of
Appellant at p. 8.) We agree with counsel that this claim is frivolous.
Generally, when a defendant’s parole is revoked and a defendant is
recommitted into custody, the severity of the sentence is not subject to
review. Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008);
see also 42 Pa.C.S. § 9776(e). Upon ruling that a violation was committed,
the trial court only has authority to recommit a parolee back into custody; the
court has no power to impose a new sentence because the previously imposed
sentence remains in effect. See Commonwealth v. Mitchell, 632 A.2d 934,
936 (Pa. 1993).1
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1 Were the present case to involve a challenge to the length of the sentence,
the issue would be one of judicial discretion, which “is not automatically
reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,
815 (Pa. Super. 2017). To assess whether this Court has jurisdiction to reach
the merits of a such a claim, we would first have to consider, among other
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“[A] defendant appealing recommitment cannot contend, for example,
that the sentence is harsh and excessive. Such a claim might implicate
discretionary sentencing but it is improper in a parole-revocation appeal.” Id.The only question in such an appeal is whether the trial court erred as a matter
of law in ordering the revocation. Id. “In order to support a revocation of
parole, the Commonwealth has to prove, by a preponderance of the evidence,
that a parolee violated his parole.” Id. A violation is not necessarily a
commission of a new crime, as even non-compliance with parole conditions,
such as failing to report, may warrant revocation. Id.Here, the evidence supports the trial court’s finding that Profeto violated
the terms of his parole. He failed to report and submit to drug testing as the
conditions required. He failed to make payments toward his court costs and
fees. These are valid grounds for revocation. Upon revoking Profeto’s parole,
the court recommitted him in accordance with the previously imposed
sentence just as the law required. Thus, we agree with Counsel that this
appeal is wholly frivolous, and our independent review of the record shows
that there are no issues of arguable merit which would entitle Profeto to relief.
Petition to withdraw granted. Judgment of sentence affirmed.
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things, whether “there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).”
Id. 815-16. Because the revocation of parole and recommitment of Profeto
into custody does not an involve a discretionary aspect of sentencing, we do
not need to address the jurisdictional question of whether this appeal poses a
“substantial question.” See Mitchell, 632 A.2d at 936 (“an appeal of a parole
revocation is not an appeal of the discretionary aspects of sentence.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/19
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