Com. v. Simmons, J. ( 2014 )

J-S38039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JACOB SIMMONS, :
:
Appellant : No. 1838 EDA 2013
Appeal from the Judgment of Sentence Entered October 12, 2012,
In the Court of Common Pleas of Montgomery County,
Criminal Division, at No. CP-46-CR-0002400-2011.
BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 04, 2014
Appellant, Jacob Simmons, appeals from the judgment of sentence
entered following the revocation of his probation. Appellate counsel has filed
a petition to withdraw his representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), which govern a withdrawal from representation on
direc
judgment of sentence.
The procedural history of this case is summarized as follows. On
October 11, 2011, Appellant entered an open guilty plea to the crime of
receiving stolen property. On February 9, 2012, the trial court sentenced
Appellant to a term of incarceration of time-served to twenty-three months
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in the Montgomery County Correctional Facility, to be followed by a term of
probation of three years. Appellant was released on parole on February 13,
2012, but on May 29, 2012, he was arrested in Chester County and charged
with robbery, retail theft, and simple assault.
The trial court summarized the subsequent protracted procedural
posture of this case as follows:
On October 12, 2012, at a hearing pursuant to Gagnon v.
Scarpelli, 411 U.S. 778 (1973), and Pa.R.Crim.P. 708, Jacob
Simmons, represented by Assistant Public Defender Gregory
Nester, entered an open stipulation to having violated the terms
of his probation/parole supervision. -10,
Oct. 12, 2012.) The Court revoked probation and sentenced
Simmons to eleven months to three years in a state correctional
facility, with commitment to date from June 15, 2012, and also
remanded him to serve back time of twelve months, two days,
concurrently, on his violation of parole, to date from June 15,
2012, making him eligible for reparole after having served
12, 2012; Probation/Parole Intermediate Punishment Violations
2.) On October 22, 2012, Attorney Nester filed a timely motion
to reconsider sentence under Pa.R.Crim.P. 708(E).
On March 13, 2013, the Clerk of Courts entered an order
purporting to deny the post-sentence motion by operation of law
pursuant to Pa.R.Crim.P. 720(B)(3)(b), advising Simmons, in
accordance with Pa.R.Crim.P. 720(B)(4), of a right, among
others, to appeal within thirty days. However, since the Court
had imposed the judgment of sentence for probation/parole
violations rather than upon original conviction, the post-sentence
procedures of Pa.R.Crim.P. 720, in particular the tolling of the
time for appeal under Pa.R.Crim.P. 720(B)(3), did not apply, and
the thirty-day period specified in the Pennsylvania Rules of
Appellate Procedure, Pa.R.A.P. 903(a), for appealing the final
judgment of sentence had expired in November 2012, and was
not extended by the motion to reconsider the sentence imposed
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motion to modify a sentence imposed after a revocation shall be
filed within 10 days of the date of imposition. The filing of a
motion to modify sentence will not toll the 30-day appeal
In any event, on April 3, 2013, Attorney Nester filed a
notice of appeal. On April 12, 2013, this Court under Pa.R.A.P.
1925(b) ordered that a statement of matters complained of on
appeal be filed and served. On April 30, Nester responded with a
statement under Pa.R.A.P. 1925(c)(4) and the Pennsylvania
Commonwealth v. Goodwin, 928
A.2d 287 (Pa. Super. Ct. 2007) (en banc), certifying that a
conscientious review of the record revealed no non-frivolous
issues upon which to base a direct appeal from the judgment of
sentence, and that accordingly, he, on appeal, would be
proceeding in accordance with Anders v. California, 386 U.S. 738
(1967), Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(2009), and Commonwealth v. McClendon, 495 Pa. 467, 434
A.2d 1185 (1981), which, taken together, sanction procedures
for counsel to wit
Santiago, 602 Pa. at 169, 978 A.2d at 355-
56 (quoting McCoy v. Wisconsin, 486 U.S. 429, 438 n.10
(1988)).
On May 14, 2013, the Superior Court ordered Simmons to
show cause why the appeal should not be quashed as untimely
filed on April 3, 2013, from the judgment of sentence imposed
on October 12, 2012, citing Pa.R.Crim.P. 720 and
Commonwealth v. Coleman, 721 A.2d 798 (Pa. Super. Ct. 1998)
(quashing an appeal not filed within thirty days from sentence
imposed upon revocation of parole/probation without prejudice
to petitioning the trial court for allowance of appeal nunc pro
tunc under Commonwealth v. Hall, 713 A.2d 650 (Pa. Super. Ct.
1998), , 565 Pa. 92, 771 A.2d 1232
(2001)). Commonwealth v. Simmons, No. 991 EDA 2013 (Pa.
Super. Ct. May 14, 2013) (order to show cause why the appeal
should not be quashed). ln response, Attorney Nester
discontinued the first appeal and sought permission from this
lower Court to appeal the judgment of sentence nunc pro tunc.
Upon being advised the Commonwealth did not oppose the
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request, this Court granted leave to appeal nunc pro tunc, and
Attorney Nester filed [the instant appeal].
Trial Court Opinion, 12/4/13, at 1-3.
As noted, counsel has filed a petition to withdraw from representation.
Before we address the questions raised on appeal, we first must resolve
Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal.
The procedural mandates are that counsel must
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within his petition
to withdraw, counsel averred that he conducted a conscientious examination
of the record. Following that review, counsel concluded that the present
appeal is wholly frivolous. Counsel sent to Appellant a copy of the Anders
brief and petition to withdraw, as well as a letter, a copy of which is attached
to the petition to withdraw. In the letter, counsel advised Appellant that he
could represent himself or that he could retain private counsel to represent
him.
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dictates in Santiago, which provide that:
in the Anders brief that accompanies court-
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
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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Santiago. It sets forth the factual
and procedural history of this case and outlines pertinent case authority. We
thus conclude that the procedural and briefing requirements for withdrawal
have been met.
Counsel presents the following issues for our review:
[1] DID THE VOP COURT LACK JURISDICTION TO REVOKE
PROBATION FOR CONDUCT THAT OCCURRED PRIOR TO THE
COMMENCEMENT OF THE TERM OF PROBATION?
[2] DID THE VOP COURT ABUSE ITS DISCRETION WHEN IT
IMPOSED A SENTENCE, FOLLOWING THE REVOCATION OF
EXCESSIVE?
In his first issue, Appellant claims that the trial court erred in revoking
his probation. Basically, Appellant asserts that the trial court lacked
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authority to revoke his probationary term because Appellant never violated
the terms of his probation, as the violations occurred while Appellant was
still on parole and prior to the commencement of his term of probation. We
This Court has long stated that a revocation court has the authority to
he fact that, at the time of
revocation of probation, the defendant had not yet begun to serve the
probationary portion of the sentence. Commonwealth v. Ware, 737 A.2d
251, 253 (Pa. Super. 1999). This is so even though the offense upon which
revocation of probation was based occurred during the parole period and not
the probationary period. Id. See also Commonwealth v. Dickens, 475
A.2d 141, 144 (Pa. Super. 1984) (ruling that the fact the defendant had not
commenced serving probation when the new offense occurred did not
prevent the court from revoking its prior order placing the defendant on
probation because if the new offense is committed at any time before the
maximum period of probation has been completed, probation may be
revoked). As our Court observed in Commonwealth v. Wendowski, 420
A.2d 628 (Pa. Super. 1980):
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
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defendant, the court could revoke or change the order of
probation.
Id. at 456 (emphasis in original) (quoting James v. United States, 140
F.2d 392, 394 (5th Cir. 1944) (Waller, J., concurring)). Essentially, the
Court in Wendowski held that, for revocation purposes, the term of
probation included the time beginning when probation was granted.
Our review of the record in this matter reflects that Appellant pled
guilty to the crime of receiving stolen property and was originally sentenced
on February 9, 2012, to a term of incarceration of time-served to twenty-
three months in the Montgomery County Correctional Facility, to be followed
by a term of probation of three years. On February 13, 2012, Appellant was
placed on parole. On May 29, 2012, while Appellant was on parole and prior
to the beginning of his probation, Appellant was arrested in Chester County
and charged with robbery, retail theft, and simple assault. Appellant
appeared before the trial court on October 12, 2012, and stipulated to being
in violation of the terms and conditions of his parole. At the conclusion of
t
directed that he serve his remaining backtime. N.T., 10/12/12, p.23. The
to serve a term of incarceration of eleven months to three years in a state
correctional institution, to run concurrently with his county parole backtime.
Thus, the record reflects that in May of 2012, the time during which
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Appellant committed offenses of such a nature as to demonstrate to the
Dickens, 475 A.2d at 144.
term of probation. Hence, Appell
Secondly, Appellant argues that the trial court abused its discretion in
imposing the sentence following the revocation of his probation. Specifically,
Appellant contends that the sentence imposed was harsh and excessive.
As this Court recently clarified in Cartrette, our scope of review
following the revocation of probation is not limited solely 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 sentencing. Rather, it also includes challenges to the
discretionary aspects of the sentence imposed. Specifically, we
rom a
Cartrette, 83 A.3d at 1034. Further, as we have long held, the imposition
of sentence following the revocation of probation is vested within the sound
discretion of the court, which, absent an abuse of that discretion, will not be
disturbed on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.
Super. 2000).
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Commonwealth v. Martin, 727 A.2d 1136,
1143 (Pa. Super. 1999). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered to be a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 162 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). The determination of whether there is a substantial question is
made on a case-by-case basis, and this Court will grant the appeal only
when the appellant advances a colorable argument that the sentencing
ent with a specific provision of the
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Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process. Sierra, 752 A.2d at 912-913.
Herein, the first three requirements of the four-part test are met,
those being that Appellant brought an appropriate appeal, albeit nunc pro
tunc, raised the challenge in his post-sentence motion, and included in his
appellate brief the necessary separate concise statement of the reasons
relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).
Therefore, we will next determine whether Appellant raises a substantial
question requiring us to review the discretionary aspects of the sentence
imposed by the trial court.
In a Rule 2119(f) statement, an appellant must set forth the reasons
why the discretionary challenge raises a substantial question.
Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013), appeal
denied
argue the manner in which
the sentence violates either a specific provision of the sentencing scheme set
forth in the Sentencing Code or a particular fundamental norm underlying
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.
Super. 2012), appeal denied, 63 A.3d 776 (Pa. 2013) (citation omitted).
and the prefatory 2119(f) statement to determine whether a substantial
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Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.
Super. 2012) (citation omitted).
abused its discretion by imposing a sentence following the revocation of
probation that was unduly harsh and excessive. Anders Brief at 11-12.
Appellant provides this Court with nothing more than bald allegations that
We do not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006)
(citing Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)); see
also Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa. Super.
2007) (claiming a sentence is excessive or unreasonable does not raise a
substantial question). Accordingly, we are constrained to conclude that
Appellant has failed to present a substantial question for our review. Thus,
we decline to address this issue.
We also have independently reviewed the record in order to determine
ut the frivolity of the present appeal is correct.
Anders, Santiago, and Cartrette. We agree with the assessment of
Petition of counsel to withdraw is granted. Judgment of sentence
affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2014
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