Com. v. Huff, H. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HAROLD BO HUFF, JR.
Appellant No. 1454 WDA 2014
Appeal from the Judgments of Sentence entered July 30, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at Nos: CP-33-CR-0000167-2013,
CP-33-CR-0000171-2013
BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 12, 2015
Harold Bo Huff, Jr., appeals from the judgments of sentence entered
after he admitted to violating his probation. Appellant’s counsel has filed an
Anders1 brief and petitioned to withdraw because he contends that this
appeal is wholly frivolous. We affirm and grant the petition to withdraw.
In 2013, Appellant was accused of two separate theft offenses. In
case No. 167, Appellant took a wallet misplaced by a customer in a
Punxsutawney Rite Aid, and used an ATM card from the wallet. In case No.
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*
Retired Senior Judge assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009) (refining Pennsylvania’s technical
requirements for withdrawing under Anders).
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171, Appellant stole several items of clothing from a shop in Brookville.
Appellant pled guilty to access device fraud in case No. 167 and retail theft
in case No. 171, (graded as a first-degree misdemeanor because it was
Appellant’s second offense and the merchandise stolen was worth more than
$150).2 The trial court sentenced Appellant to 1 to 2 years in prison
followed by 3 years of probation for access device fraud, and 4 to 24 months
in prison followed by 3 years of probation for the retail theft conviction. The
trial court made the sentences concurrent.
After he was released from prison and while he was on state parole,
Appellant admitted to violating his supervision. The trial court revoked
Appellant’s probation in both cases and imposed new sentences of two to
seven years in prison for access device fraud and six months to five years
for retail theft, with credit for time served. The trial court made the new
sentences consecutive, resulting in an aggregate sentence of 2½ – 12 years
in prison. Appellant filed a motion to reconsider, which the trial court denied
without a hearing. This appeal followed.
On appeal, counsel directs this Court’s attention to one issue of
possible merit: the discretionary aspects of Appellant’s revocation sentence.
Before we may consider this issue, we must address whether counsel has
met the requirements of Anders, as refined by Santiago. To withdraw
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2
18 Pa.C.S.A. §§ 4106(a)(1)(iv) and 3921(a)(1), respectively.
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under Anders/Santiago, counsel must (1) petition this Court for leave to
withdraw after certifying that a thorough review of the record indicates the
appeal is frivolous; (2) file a brief referring to anything in the record that
might arguably support the appeal; and (3) give the appellant a copy of the
brief and advise the appellant of the right to obtain new counsel or file a pro
se brief to raise any additional points for review. Commonwealth v.
Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). Additionally, the
Anders/Santiago 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.
We find that counsel has complied with Anders and Santiago.
Counsel has petitioned for leave to withdraw, filed a brief that refers us to
anything that might support the appeal, and informed Appellant of his right
to hire a new lawyer or file a pro se response.3 Although counsel did not cite
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3
Appellant has filed a pro se response, which we will consider in due course.
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the relevant portions of the record that could arguably support the issue
raised, we find that the Anders brief is substantially compliant. See
Commonwealth v. Wrecks (Wrecks II), 934 A.2d 1287, 1290 (Pa.
Super. 2007) (granting petition to withdraw where brief “substantially, if not
perfectly complie[d] with Anders”).
We now examine this appeal to determine whether it is wholly
frivolous. See Commonwealth v. Flowers, 2015 Pa. Super. 69, 2015 WL
1612010, at *2, 2015 Pa. Super. LEXIS 165, at *5 (filed Apr. 10, 2015)
(“Binding precedent from the Pennsylvania Supreme Court and this Court
requires that an independent review of the record include the review of the
entire record for any non-frivolous issues.”). We turn first to the issue
raised in the Anders brief: Appellant’s challenge to his sentence.
Following a finding that an offender has violated probation, a trial
court has all the available sentencing alternatives that were available at the
time of initial sentencing. 42 Pa.C.S.A. § 9771(b).
The court shall not impose a sentence of total confinement upon
revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely
that he will commit another crime if he is not imprisoned;
or
(3) such a sentence is essential to vindicate the authority
of the court.
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Id. § 9771(c). A claim that a trial court failed to comply with § 9771(c)
implicates the discretionary aspects of sentence—not legality.
Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012).
A defendant has no automatic right to appeal the discretionary aspects
of a sentence. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Baker, 72 A.3d
652, 662 (Pa. Super. 2013). Rather, we review a challenge to the
discretionary aspects of a sentence only if (1) the appellant raised the issue
before the trial court; (2) timely appealed; (3) sets forth the reasons why
the sentence was inappropriate in the appellant’s brief under Pa.R.A.P.
2119(f); and (4) raises a substantial question that the sentence is
inappropriate. Baker, 72 A.3d at 662.
Appellant has preserved a challenge to his sentence. Appellant filed a
motion for reconsideration and a timely appeal. To the extent the Rule
2119(f) statement in the Anders brief is inadequate, the Commonwealth
has not objected.4 See Commonwealth v. Gould, 912 A.2d 869, 872 (Pa.
Super. 2005) (noting this Court may ignore noncompliance with Rule 2119(f)
if the Commonwealth does not object). Finally, Appellant has raised a
substantial question that the sentence is inappropriate. See
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006)
(holding claim that trial court imposed an excessive sentence for technical
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4
Indeed, the Commonwealth has failed to file an appellee’s brief.
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probation violations and failed to comply with § 9771(c) raised a substantial
question). Finally, even if Appellant did not preserve his sentencing
challenge, we would still examine the merits to determine whether it is
wholly frivolous under Anders. See Commonwealth v. Lilley, 978 A.2d
995, 998 (Pa. Super. 2009).
We review the discretionary aspects of a revocation sentence for an
abuse of discretion. Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa.
Super. 2006). Here, the trial court stated that a sentence of total
confinement was necessary to vindicate the court’s authority, because of
Appellant’s significant prior record, and his repeat violations of supervision.
See N.T., 7/30/14, at 3-8. The record shows that Appellant violated his
state parole only days after being paroled. Appellant failed to report for
three to four months thereafter. When county sheriff’s deputies attempted
to take him into custody, he gave a false name and then hid under a couch.
Appellant also tested positive for marijuana. Appellant admitted to these
violations. As justification for imposing the maximum possible sentence of
incarceration (12 years), the trial court noted its intent to place Appellant
under a long period of supervision because of his “hefty” prior record, and
repeat violations and failures to report. In fact, the trial court rejected the
adult probation department’s recommendation of 3½ to 7 years, giving
Appellant a shorter minimum sentence (2½ years with credit for time
served), so that Appellant could be released into the community while under
a long period of supervision by authorities. Moreover, in sentencing
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Appellant, the trial court used a presentence investigation report. In sum,
we agree with counsel’s assessment that Appellant’s challenge to the
discretionary aspects of his sentence is wholly frivolous.
We turn next to Appellant’s pro se response. It does not change our
conclusion that the sentencing issue is frivolous. Appellant asks us to
consider Commonwealth v. Anderson, 643 A.2d 109, 110 (Pa. Super.
1994), but our Supreme Court explicitly abrogated Anderson in
Commonwealth v. Wallace, 870 A.2d 838, 844 (Pa. 2005) (“Anderson’s
holding that ‘any sentence imposed after probation revocation must not
exceed the maximum sentence originally imposed’ is legally unsupportable
and is inconsistent with both the clear and unambiguous language of the
Sentencing Code and th[e Supreme] Court’s precedent.”).
Finally, we have conducted an independent review of the entire record.
See Flowers, supra. We are satisfied that no non-frivolous appellate
issues exist. Accordingly, we affirm the judgments of sentence and grant
counsel’s petition to withdraw.
Judgments of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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