Com. v. Lang. J. ( 2014 )

J-S43005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON HARRY LANG
Appellant No. 259 EDA 2014
Appeal from the Judgment of Sentence December 20, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007610-2007
BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 05, 2014
Appellant, Jason Harry Lang, appeals from the judgment of sentence
entered in the Montgomery County Court of Common Pleas, following
revocation of his probation. We affirm and grant counse
withdraw.
The relevant facts and procedural history of this appeal are as follows.
On January 30, 2008, the Commonwealth filed a criminal information
charging Appellant with multiple offenses stemming from his possession of
prescription drugs and cocaine at a Montgomery Township motel. On
October 3, 2008, Appellant entered a negotiated guilty plea at No. 7610 of
2007 to one count of possession of a controlled substance with intent to
_____________________________________________
*Former Justice specially assigned to the Superior Court.
*Justice Fitzgerald did not participate in the consideration or decision of this
case.
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-113(a)(30). That same day, the court
accepted the plea and imposed the agreed-upon sentence of one (1) to three
1
The court
Hearing, 10/3/08, at 14).
Appellant subsequently violated the terms of his probation and parole
at multiple docket numbers, including No. 7610 of 2007. The court
conducted a revocation hearing on October 20, 2010. At the conclusion of
the hearing, the court revoked A
and deferred re-sentencing. On November 30, 2010, the court re-sentenced
Appellant as follows:
And now, November 30, 2010, the sentence imposed on
undergo imprisonment for not less than time served nor
more than 23 months in the Montgomery County
Correctional Facility, commitment to date from May 19,
2010.
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1
The trial court states that the jurist who presided ov
sentencing hearing imposed a mandatory minimum sentence, pursuant to 18
Pa.C.S.A. § 7508(a)(3)(i). (See Trial Court Opinion, filed April 7, 2014, at 3
n.3.) The certified record, however, does not confirm this assertion. Our
review of the notes of testimony reveals no mention of imposition of a
mandatory minimum sentence. Significantly, there is no evidence that the
Commonwealth provided notice of its intent to seek a mandatory minimum
sentence. See 18 Pa.C.S.A. § 7508(b) (explaining reasonable notice of
after conviction and before sentencing). Absent more, we cannot conclude
that the sentence imposed constituted a Section 7508(a)(3)(i) mandatory
minimum term.
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[Appellant] is sentenced to probation for a period of one
year in the custody of the Montgomery County Adult
Probation Department consecutive to parole under
information [Nos. 157.1 and 2499 of 2007 and No. 8262.1
of 2005], concurrent sentences.
(N.T. Re-Sentencing Hearing, 11/30/10, at 8).
Appellant again violated the terms of his probation and parole at the
various docket numbers, including No. 7610 of 2007. The court conducted a
revocation hearing on June 17, 2011. At the conclusion of the hearing, the
court revoked parole at No. 7610 of 2007 and ordered Appellant to serve
sixteen (16) months, nineteen (19) days of backtime. The court also made
-diagnosis, inpatient program if
July 12, 2011, the parole board granted Appellant early parole to an
inpatient program at the Keystone Center in Lansdale.
Appellant subsequently violated the terms of his probation at No. 7610
of 2007 by committing technical violations. Appellant also pled guilty to a
new firearms offense in Philadelphia. The court initially conducted a
revocation hearing on December 6, 2013. At that time, Appellant appeared
requested to proceed pro se
allowing the public defender to remain as standby counsel. During the
revocation hearing, the court questioned Appellant about his recent firearms
conviction in Philadelphia. Appellant claimed he was unaware that the
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Commonwealth would utilize the Philadelphia conviction as a basis to revoke
probation at No. 7610 of 2007. At the conclusion of the hearing, the court
continued the matter. Regarding the continuance, the court informed the
parties as follows:
reschedule it for Tuesday, December 17, 2013, at 1:30.
sentence[es] are, what his whole history is, answer any
questions that he has. He has some concerns about
same page together.
(N.T. Revocation Hearing, 12/6/13, at 16). On December 17, 2013,
Appellant stipulated to a probation violation. The court revoked probation
and deferred re-sentencing. On December 20, 2013, the court re-sentenced
a pro se post-sentence motion on December 30, 2013, which the court
denied on January 6, 2014.
Appellant timely filed a pro se notice of appeal on January 14, 2014.
On January 16, 2014, the court ordered Appellant to file a concise statement
of errors complained on appeal, pursuant to Pa.R.A.P. 1925(b). On February
11, 2014, the court conducted a hearing to determine whether Appellant
knowingly sought to waive his right to counsel on direct appeal. During the
hearing, Appellant elected to proceed with counsel from the public
1925(b) statement.
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As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007).
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
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Neither Anders nor McClendon[2]
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
mination and assessment of the record and
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
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
n that the appeal is frivolous; and
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.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw
representation. The petition states counsel conscientiously reviewed the
record and concluded the appeal would be wholly frivolous. Counsel also
supplied Appellant with a copy of the withdrawal petition, the brief, and a
pro se or with new privately
retained counsel to raise any additional arguments Appellant deems
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2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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necessary. In his Anders brief, counsel provides a summary of the facts
and procedural history of the case with citations to the record. Counsel
refers to evidence in the record that may arguably support the issues raised
on appeal, and he provides citations to relevant law. The brief also provides
Thus, counsel has substantially complied with the requirements of Anders
and Santiago.
As Appellant has filed neither a pro se brief nor a counseled brief with
new privately retained counsel, we review this appeal on the basis of the
issues raised in the Anders brief:
VIOLATED WHEN APPELLANT WAS NOT GIVEN ADVANCE
NOTICE OF AN ADDENDUM TO THE NOTICE OF
PROBATION VIOLATIONS PRIOR TO THE VIOLATION OF
PROBATION HEARING?
IS THE SENTENCE OF TOTAL CONFINEMENT IMPOSED BY
THE TRIAL COURT FOLLOWING THE REVOCATION OF
(Anders Brief at 4).
In his first issue, Appellant acknowledges that he received notice of
the technical probation violations prior to the December 6, 2013 revocation
hearing. Appellant complains, however, that the Commonwealth provided a
written addendum to the original notice during the hearing. Appellant
maintains the addendum amounted to his first notice of the
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untimely submission of the addendum left him with insufficient time to
prepare a defense against the charge of a direct probation violation.
Appellant concludes the Commonwealth and revocation court violated his
due process rights by failing to provide adequate notice of the direct
violation included in the addendum. We disagree.
claimed probation violations prior to commencement of the revocation
Commonwealth v. Carter, 523 A.2d 779, 781 (Pa.Super.
1987) (quoting Commonwealth v. Quinlan, 488 Pa. 255, 258, 412 A.2d
494, 496 (1980)).
The purpose of requiring prior written notice is to ensure
both against the allegations of violations, and against the
argument that the violations, if proved, demonstrate
on the ability to contest revocation.
Carter, supra at 781 (internal citation and quotation marks omitted). See
also Reavis v. Pennsylvania Bd. of Probation and Parole, 909 A.2d 28ffender did not assert
prejudice or suggest defense); Colon v. Pennsylvania Bd. of Probation
and Parole, 456 A.2d 1145 (Pa.Cmwlth. 1983) (holding offender was not
denied due process in connection with revocation hearing on ground that he
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had only eight (8) days to prepare defense, absent description of prejudice
or suggestion of defense).
Instantly, the revocation court addressed the notice of the direct
violation as follows:
Appellant next claims that he was given insufficient notice
of the addendum to the original probation violation charges
and, consequently, was unable to prepare a defense to
those charges prior to the December 20, 2013 sentencing.
Appellant first alleges that he was provided with only three
set forth in the
addendum to the original notice of violation. This
allegation is false. On December 6, 2013, Appellant
appeared before the [court] for a violation of probation
hearing. Appellant was made aware of the addendum to
the original probation violation charges before this
probation hearing was rescheduled. At the rescheduled
December 17, 2013 violation hearing, Appellant testified
that he received the addendum to the original probation
he had prior notice of the charges contained in the
addendum. Finally, it should be noted that even though
Appellant stipulated to the violation on December 17,
2013, both the [court] and [standby] counsel informed him
for the [c]ourt to find
that he violated his probation.
(See Trial Court Opinion at 3) (internal citations to the record omitted). We
also observe that the eleven-
addendum and the resumption of the revocation hearing gave Appellant
adequate time to prepare his case. See Reavis, supra; Colon, supra.
Moreover, Appellant stipulated to a violation at the December 17, 2013
hearing, which was enough to revoke his probation. Thus, Appellant cannot
demonstrate prejudice as a result of the late issuance of the addendum. Id.
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Therefore, Appellant is not entitled to relief on his first issue.
In his second issue, Appellant argues the new sentence of two to four
s of confinement,
exceeds the statutory maximum term of imprisonment for his PWID
conviction. Appellant claims the maximum sentence the court could have
Appellant concludes his current sentence is illegal. We disagree.
In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court, which,
Commonwealth v. Hoover
standard of 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
Id. at 322-
probation, the trial court is limited only by the maximum sentence that it
Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).
Additionally, a person who commits PWID is subject to the following
penalties:
§ 780-113. Prohibited acts; penalties
* * *
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(f) Any person who violates clause (12), (14) or (30)
of subsection (a) with respect to:
* * *
(1.1) Phencyclidine; methamphetamine, including
its salts, isomers and salts of isomers; coca leaves and
any salt, compound, derivative or preparation of coca
leaves; any salt, compound, derivative or preparation of
the preceding which is chemically equivalent or identical
with any of these substances, except decocanized coca
leaves or extracts of coca leaves, which extracts do not
contain cocaine or ecgonine; and marihuana in a
quantity in excess of one thousand (1,000) pounds, is
guilty of a felony and upon conviction thereof shall
be sentenced to imprisonment not exceeding ten
years, or to pay a fine not exceeding one hundred
thousand dollars ($100,000), or both, or such larger
amount as is sufficient to exhaust the assets utilized in
and the profits obtained from the illegal manufacture or
distribution of these substances.
35 P.S. § 780-113(f)(1.1) (emphasis added).
Instantly, the revocation court determined that Appellant was subject
to a maximum sent
clearly explained to Appellant that the charge of [PWID]
ty of up
sentencing sheet unmistakably demonstrates that the
[PWID] charge was graded as an ungraded felony.
Additionally, the October 3, 2008 sentencing guideline
form clearly shows that the statutory limits for this
ungraded felony were 60 to 120 months. There is no
as a felony of the third degree. Rather, evidence indicates
felony punishable by a maximum sentence of ten years.
As Appellant had five years and one month exposure as of
the date of sentencing, the two to four year sentence
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imposed by the [revocation court judge] did not constitute
an illegal sentence.
(See Trial Court Opinion at 2-3) (internal footnote omitted).
Following the entry of the guilty plea, the court sentenced Appellant to
-sentenced Appellant to
time served to twenty-
probation. In 2011, the court revoked parole and did not impose a new
sentence; rather, the court ordered Appellant to serve sixteen months,
nineteen days of backtime. See Commonwealth v. Kalichak, 943 A.2d
285, 290 (Pa.Super. 2008) (explaining parole revocation does not involve
imposition of new sentence; instead, only option for parole revocation court
is to recommit defendant to serve already-imposed, original sentence).
Following the current revocation hearing, the court re-sentenced Appellant to
imprisonment, which is less than the maximum ten (10) years permissible
See 35 P.S. § 780-113(f)(1.1). Therefore,
the court imposed a legal sentence. See Coolbaugh, supra. Accordingly,
withdraw.
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2014
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