Com. v. Workman, M. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL JOSEPH WORKMAN, JR.
Appellant No. 14 MDA 2014
Appeal from the Judgment of Sentence August 22, 2012
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002256-2007
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 10, 2014
Appellant, Michael Joseph Workman, Jr., appeals from the August 22,
2012 judgment of sentence of 18 to 36 months’ incarceration, imposed
following the revocation of his county intermediate punishment (CIP)
sentence. In addition, Appellant’s counsel has filed a petition to withdraw,
together with an Anders1 Brief, averring the appeal is frivolous. After
careful review, we affirm the judgment of sentence and grant counsel’s
petition to withdraw.
We summarize the procedural history of this case, as revealed by the
certified record, as follows. Following a guilty plea to several offenses,
including one count of stalking and four counts of recklessly endangering
____________________________________________
1
Anders v. California, 386 U.S. 738 (1967).
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another person (REAP)2, Appellant was sentenced on April 18, 2008, to 36
months’ CIP on the stalking count, a concurrent term of 24 months’
probation on each of the four REAP counts, plus fines. Appellant’s sentence
was revoked after a Gagnon II3 hearing on October 1, 2009, and the trial
court resentenced Appellant to a new 36 months’ CIP.4 On January 9, 2012,
the Dauphin County Adult Probation Department filed a detainer for
Appellant for violation of his CIP. Appellant was served with a notice of
violation on February 24, 2012, which alleged numerous violations, including
several new criminal charges and traffic offenses.5 The trial court conducted
____________________________________________
2
18 Pa.C.S.A. §§ 2709.1(a)(1) and 2705, respectively.
3
Gagnon v. Scarpelli, 411 U.S. 778, (1973) (holding that a previously
sentenced probationer is entitled to a preliminary revocation hearing (a
Gagnon I) and a final revocation hearing (a Gagnon II)).
4
Appellant’s concurrent four probationary sentences were also revoked, and
he received a concurrent sentence of six to 23 months’ incarceration on each
REAP count.
5
In addition to numerous technical violations, the notice listed the following
new charges filed against Appellant.
a. 6/04/10-Careless Driving. Disregarding Traffic
Lane, Operating Unsafe Equipment
b. 3/31/11-Criminal Mischief
c. 4/13/11-Forgery, Receiving Stolen Property,
Access Device Fraud, ID Theft, [Theft by Unlawful
Taking]
d. 6/23/11-Operating Vehicle Without Valid
Inspection
(Footnote Continued Next Page)
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a Gagnon II revocation hearing on August 22, 2012. Following the hearing,
the trial court revoked Appellant’s CIP sentence and resentenced Appellant
to a term of incarceration of 18 to 36 months.6 No direct appeal was taken.
On June 5, 2013, Appellant filed a pro se petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel was
appointed and subsequently, the PCRA court reinstated Appellant’s direct
appeal rights nunc pro tunc on December 11, 2013. Appellant filed a timely
notice of appeal on December 30, 2013.7
On appeal, Appellant raises the following issues for our review.
1. Whether the Court erred in revocating [sic] the
Appellant where he had passed his county probation
date on July 7, 2012, and his county detainer was
never lifted?
2. Whether the Court erred in revoking the
Appellant’s probation due to insufficient evidence
presented at his revocation hearing on August 22,
2012, where the Court indicated Appellant violated
probation by driving and no representative from
_______________________
(Footnote Continued)
e. 7/29/11-Exceeding 65[MP]H by 23 MPH
f. 12/03/11-Operating Vehicle Without Financial
Responsibility
Detention Report, 3/1/12, at 1. A special condition of Appellant’s CIP was
not to drive. Id.
6
Appellant was given credit for six months’ time served and was made
eligible for a Recidivism Risk Reduction Incentive Act sentence of 13½
months. See 42 Pa.C.S.A. §9756(b.1).
7
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925(b).
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PennDOT was present at his revocation and where
the Officer testified he was revoked twice previously
and he was only revoked once previously?
Anders Brief at 5.
“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.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, we review counsel’s Anders brief for
compliance with the requirements set forth by our Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in the Anders brief that
accompanies court-appointed counsel’s 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 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.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005) and its progeny, “[c]ounsel 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
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court[’]s attention in addition to the points raised by counsel in the Anders
brief.” Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
(internal quotation marks and citation omitted). “Once counsel has satisfied
the above requirements, it is then this Court’s duty to conduct its own
review of the trial court’s proceedings and render an independent judgment
as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Instantly, we are satisfied that counsel has complied with the technical
requirements of Anders and Santiago. Counsel carefully summarized the
pertinent procedural history and made appropriate references to the record.
He acknowledged his own review of the record, articulated one issue that
could arguably support an appeal, but stated his conclusion that the appeal
is nevertheless frivolous. Further, he set forth the reasons upon which he
based that conclusion. Counsel has also complied with the notification
requirements described in Millisock. Since receiving notice, Appellant has
not filed any response. We therefore proceed with our independent review
of the record and the issue presented on Appellant’s behalf.
We begin by clarifying our appropriate standard of review in the
instant appeal.
An intermediate punishment sentence imposed
pursuant to 42 Pa.C.S. § 9763[] may be revoked
where the specific conditions of the sentence have
been violated. “Upon revocation, the sentencing
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alternatives available to the court shall be the same
as the alternatives available at the time of initial
sentencing.” 42 Pa.C.S. § 9773[].
Commonwealth v. Philipp, 709 A.2d 920, 921 (Pa. Super. 1998). For the
purpose of appeal, our standard of review for revocation of probation is the
same as for revocation of intermediate punishment. Commonwealth v.
Fusselman, 866 A.2d 1109, 1110 (Pa. Super. 2004), appeal denied, 882
A.2d 477 (Pa. 2005). “[W]hether an offender is serving a sentence of
probation or intermediate punishment, if he violates the assigned conditions,
the order of probation or intermediate punishment (as the case may be)
may be revoked and a new sentence imposed.” Commonwealth v.
Wegley, 829 A.2d 1148, 1153 (Pa. 2003) (citations omitted).
In considering an appeal from a sentence
imposed following the revocation of probation, our
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 sentencing. Revocation of a probation
sentence is a matter committed to the sound
discretion of the trial court and that court’s decision
will not be disturbed on appeal in the absence of an
error of law or an abuse of discretion.
Commonwealth v. Mazzetti, 9 A.3d 228, 230 (Pa. Super. 2010) (citation
omitted), affirmed, 44 A.3d 58 (Pa. 2012). “An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown
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by the evidence or the record, discretion is abused.” Commonwealth v.
Burns, 988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citation omitted),
appeal denied, 8 A.3d 341 (Pa. 2010).
In his first issue, Appellant maintains the trial court erred because the
detainer, issued on the allegations he violated conditions of his CIP, was not
lifted on July 7, 2012, when his CIP probation was set to expire, and his
revocation hearing was not held until August 22, 2012. Anders Brief at 9.
We view this question as challenging the timing of Appellant’s Gagnon II
hearing after the expiration date of his CIP sentence. Additionally, counsel
develops the issue as a challenge to the trial court’s failure to award credit
for time spent in good standing on the CIP sentence. Id. at 14-17. We
address both aspects of the issue.
When a defendant violates the conditions of his parole, probation, or
intermediate punishment during the term of the sentence, a trial court is not
foreclosed from revoking the parole, probation, or intermediate punishment
within a reasonable time after the expiration of that term. See
Commonwealth v. Duff, 192 A.2d 258, 261-262 (Pa. Super. 1963),
reversed on other grounds, 200 A.2d 773 (Pa. 1964); Commonwealth v.
Fox, 69 Pa.Super. 456, 459 (1918). Thus, in cases where the revocation
proceeding cannot be commenced before the expiration of the term, a
defendant will not be entitled to a windfall based on the timing of his
violation or its discovery.
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It seems obvious that a violation which takes place
on the last day of the probationary period, or so near
the end of the probationary period that the court
cannot act within the period, should be punishable
by revocation of the probation thereafter. …
[T]he question reduces to whether the delay in
the revocation in the imposition of the prison
sentence is reasonable. It is sufficient that the court
which imposed the probation should act promptly
after the violation is discovered or, in the case of an
accusation of crime, after the conviction, even
though the probationary period has expired
meanwhile.
Duff, supra at 262; see also Commonwealth v Smith, 860 A.2d 142,
144 (Pa. Super. 2004), appeal denied, 868 A.2d 452 (Pa. 2005);
Commonwealth v. Clark, 310 A.2d 316, 318 (Pa. Super. 1973).
Relative to the timing of a Gagnon II hearing, Pennsylvania Rule of
Criminal Procedure 708 provides in pertinent part as follows.
Rule 708. Violation of Probation, Intermediate
Punishment, or Parole: Hearing and Disposition
(A) A written request for revocation shall be
filed with the clerk of courts.
(B) Whenever a defendant has been sentenced
to probation or intermediate punishment, or placed
on parole, the judge shall not revoke such probation,
intermediate punishment, or parole as allowed by
law unless there has been:
(1) a hearing held as speedily as possible at
which the defendant is present and represented by
counsel; and
(2) a finding of record that the defendant
violated a condition of probation, intermediate
punishment, or parole.
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…
Pa.R.Crim.P. 708.
This Court has construed the [Pa.R.Crim.P.]
1409(B)(1)[8] language “speedily as possible” to
require that a hearing be held within a reasonable
time. In evaluating the reasonableness of a delay,
the Court examines three factors: the length of the
delay; the reasons for the delay; and, the prejudice
resulting to the defendant from the delay.
Commonwealth v. Ferguson, 761 A.2d 613, 619 (Pa. Super. 2000)
(citations omitted). The delay period is measured from the date of new
conviction to the date of the revocation hearing. Commonwealth v.
Bischof, 616 A.2d 6, 8 (Pa. Super. 1992).
Instantly, a detainer was placed on Appellant on January 9, 2012,
based on the pendency of numerous new charges filed against him in
Schuylkill County. After Appellant pleaded guilty to the last of them, to wit,
forgery and receiving stolen property, on June 20, 2012, the Dauphin
County Office of Adult Probation and Parole filed a Gagnon II hearing
request on July 12, 2012. A hearing was scheduled for August 22, 2012. At
the hearing, Appellant did not dispute the fact of his new convictions,
arguing instead against a new sentence of incarceration based on mitigating
factors.
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8
Former Rule 1409 was renumbered to Rule 708 effective April 1, 2000.
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In light of these facts, we conclude the trial court did not err or abuse
its discretion in revoking Appellant’s CIP at a hearing held shortly after the
expiration date of his CIP sentence. As noted, the mere fact Appellant’s CIP
expiration date occurred prior to the Gagnon II hearing does not entitle him
to a pass on his violations. Duff, supra. Furthermore, the violations
occurred during his CIP, with his final conviction for the new charges
occurring on June 20, 2012. Under the criteria for evaluating the
promptness in holding the Gagnon II hearing, we note the delay in holding
the hearing here was not extensive. Further, we discern no prejudice to
Appellant related to the timing of the hearing. See Ferguson, supra.Accordingly, we deem Appellant’s appeal on this issue frivolous.
As noted, Appellant’s counsel and the trial court also construe
Appellant’s first issue as challenging the trial court’s failure to award credit
toward his new sentence for time served on his CIP sentence prior to the
violations. As explained by the trial court, a defendant revoked from an
intermediate punishment sentence is entitled to credit for time served on
that sentence if the revocation is based on technical violations only. Trial
Court Opinion, 3/21/14, at 2, citing Commonwealth v. Greenlee, 398 A.2d
676 (Pa. Super. 1979). Instantly, Appellant’s CIP was revoked as a result of
his conviction on new charges, precluding any right to the sought credit.
Furthermore, we note Appellant was on county supervision, and the
requirement to give credit for time served in good standing when
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resentencing after a revocation for technical violations pertains only to
defendants who are under the supervision of the Pennsylvania Board of
Probation and Parole. Commonwealth v. Broden, 392 A.2d 858, 859 (Pa.
Super. 1978). There is no such requirement for defendants under county
supervision. Id. Accordingly, we conclude Appellant’s appeal on this issue
is frivolous.
In his second issue, Appellant alleges the evidence was insufficient to
support the violation allegations relative to his driving status because no
representative from the Pennsylvania Department of Transportation
(PennDOT) was present to testify. Anders Brief at 12. However,
Appellant’s driving status with PennDOT is irrelevant to his revocation in this
case. As noted, Appellant had new convictions on charges for forgery and
receiving stolen property, which he did not contest. At the Gagnon II
hearing, Probation Officer Brandi Hooper (P.O. Hooper) explained the
inclusion of the motor vehicle citations in the notice of violation, as follows.
Just so Your Honor is aware, the reason I’m
bringing up all the traffic citations was due to the
fact that at his original sentencing in 2008 [the trial
court] had ordered that he not drive on or off the
road. In 2009 the new charges were a result of him
taking his uncle’s vehicle ….
So, therefore, again it was reimposed that he
not be driving on or off the road, and that’s why I
bring up the traffic violations as a way of pointing
out the fact he continues to drive on the road and
receive violations as a result.
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N.T., 8/22/12, at 4-5. Since it was a violation of Appellant’s CIP for him to
drive with or without a license, Appellant’s driving status was not at issue,
and the presence of a representative from PennDOT was unnecessary.
Also in his second issue, Appellant avers the trial court erred in
revoking his CIP, where P.O. Hooper testified that Appellant had been
revoked twice before, when, in fact, he had been revoked only once before.
Anders Brief at 19. Appellant’s assertion is belied by the record. The
reference to a “third” violation was made by the Assistant District Attorney
in his question posed to P.O. Hooper, as follows. “What’s your …
recommendation for this – looks like third revocation hearing?” N.T.,
8/22/12, at 2. In response, P.O. Hooper described the history of the case,
noting only the 2009 prior revocation. Id. at 2-3. Thus, P.O. Hooper
testified correctly, and the trial court’s decision to revoke was not based on
erroneous testimony. Accordingly, we conclude Appellant’s appeal on his
second issue is also frivolous.
In light of all the foregoing, we conclude all of Appellant’s issues on
appeal are frivolous. See Santiago, supra. We therefore grant counsel’s
petition to withdraw as counsel and affirm the August 22, 2012 judgment of
sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
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