Com. v. Gibson, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSSELL PHILIP GIBSON :
:
Appellant : No. 1600 WDA 2019
Appeal from the Judgment of Sentence Entered September 10, 2019
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0001141-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JULY 30, 2020
Russell Philip Gibson (Appellant) appeals from the judgment of sentence
imposed following remand from this Court. Additionally, Appellant’s counsel
(Counsel), seeks to withdraw from representation pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349, 361 (Pa. 2009). Upon review, we grant Counsel’s petition to
withdraw and affirm Appellant’s judgment of sentence.
A prior panel of this Court summarized the facts and procedural history:
This case arises out of an argument and altercation between
Appellant and his girlfriend, Dawn Hannold, on December 7, 2017.
Appellant was charged with terroristic threats, simple assault, and
harassment.[FN] 1 On October 19, 2018, the case proceeded to
trial, with the terroristic threats and simple assault charges tried
to a jury and the harassment charge, a summary offense, tried to
the trial judge.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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18 Pa.C.S. §§ 2706(a)(1), 2701(a)(1), and
[FN]1
2709(a)(1).
Both Hannold and Appellant testified at trial that they had been
drinking beer and got into an argument when Hannold became
upset over a phone call that Appellant received from a girl and
took Appellant’s cell phone. Both Hannold and Appellant also
testified that Appellant took his phone back and that Hannold
packed up her belongings and left Appellant’s trailer with the dog
that they jointly owned. Hannold testified that Appellant struck
her on the back with a dog leash two or three times and told her
as she was leaving that if “[y]ou take my dog, I’m going to smash
your head in.” N.T. Trial at 37-39. Appellant testified that Hannold
pushed him and that he pushed her back and told her “to get the
hell out,” and denied that he hit Hannold with a dog leash. Id. at
77-85.
The jury acquitted Appellant of the terroristic threats and simple
assault charges. N.T. Trial at 123-24. Immediately following the
jury verdict, the trial court found Appellant guilty of harassment.
Id. at 124. On December 4, 2018, the trial court sentenced
Appellant to 90 days’ probation for the harassment conviction.
N.T. Sentencing at 10; Sentencing Order at 1. In this sentence,
the trial court imposed as conditions of Appellant’s probation that
he have no contact with Hannold and refrain from the
consumption of alcoholic beverages and also required that
Appellant “shall remove any excess scrap, garbage and other
debris from his property . . . such that the property shall meet the
conditions of all Sandy Township Code requirements.” N.T.
Sentencing at 10-11; Sentencing Order at 1-2. This latter
condition was imposed based on a township code violation of
which the trial court had found Appellant guilty in a separate,
unrelated proceeding. N.T. Sentencing at 5-9. Appellant’s
counsel objected to imposition of this condition at the sentencing.
Id. at 4-5. This timely appeal followed. The trial court stayed
Appellant’s sentence pending the appeal.
Commonwealth v. Gibson, 119 WDA 2019, at *1-3 (Pa. Super. Aug. 16,
2019) (unpublished memorandum).
On appeal, this Court affirmed Appellant’s judgment of sentence, but
vacated the condition of Appellant’s probation requiring him to “remove any
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excess scrap, garbage and other debris from his property . . . such that the
property shall meet the conditions of all Sandy Township Code requirements.”
Id. at 2, 9-11. Because vacating the condition of probation upset the trial
court’s sentencing scheme, the case was remanded to the trial court for
resentencing. Id. at 11.
On September 10, 2019, the trial court resentenced Appellant to 90
days of probation. As a condition of probation, the trial court ordered
Appellant to successfully complete 200 hours of community service under the
standard terms and conditions of the Clearfield County Community Service
Program, have no contact with Hannold, and refrain from consuming alcoholic
beverages. On October 9, 2019, Appellant filed a timely appeal. Counsel filed
a statement of intent to file an Anders brief pursuant to Pennsylvania Rule of
Appellate Procedure 1925(c)(4), and the trial court filed its Rule 1925(a)
opinion on January 17, 2020.
On March 2, 2020, Counsel filed an Anders brief, in which he argues
that Appellant’s appeal is frivolous and requests permission from this Court to
withdraw as counsel. Appellant did not file a response to Counsel’s Anders
brief or raise any additional claims.
At the outset, we note the particular mandates that counsel seeking to
withdraw pursuant to Anders must follow. These mandates and the
significant protection they provide arise because a criminal defendant has a
constitutional right to a direct appeal and to counsel on that appeal.
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Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). We have
summarized the requirements as follows:
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel
must also file an Anders brief setting forth issues that might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate’s brief on
Appellant’s behalf).
Id. (citations omitted).
Additionally, there are requirements as to the content of an Anders
brief:
[T]he Anders brief that accompanies court-appointed counsel’s
petition to withdraw … 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. When faced with a purported Anders brief, we
may not review the merits of the underlying issues without first deciding
whether counsel has properly requested permission to withdraw.
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Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation
omitted). If counsel has satisfied the above requirements, it is this Court’s
duty to review the trial court proceedings to determine whether there are any
other non-frivolous issues that the appellant could raise on appeal.
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
Instantly, we conclude that Counsel has complied with the requirements
of Anders. Counsel filed a petition with this Court stating that after reviewing
the record, he finds this appeal to be wholly frivolous. Petition to Withdraw
as Counsel, 3/2/20, at ¶ 3. In conformance with Santiago, Counsel’s brief
includes summaries of the facts and procedural history of the case, and
discusses the issues he believes might arguably support Appellant’s appeal.
See Anders Brief at 4-6, 8-14. Counsel’s brief sets forth his conclusion that
the appeal is frivolous and includes citation to relevant authority. Id. Finally,
Counsel has attached to his petition to withdraw the letter he sent to
Appellant, which enclosed Counsel’s petition and Anders brief. Petition to
Withdraw as Counsel, 3/2/20, Ex. F. Counsel’s letter advised Appellant of his
right to proceed pro se or with private counsel, and to raise any additional
issues that he deems worthy of this Court’s consideration. Id. We thus
proceed to review the merits of Appellant’s claims.
Counsel’s Anders brief raises two issues for our review:
I. Whether the [c]ourt of [c]ommon [p]leas of Clearfield
County . . . imposed an illegal sentence in its September 10,
2019 Order[?]
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II. Whether it was an abuse of discretion by the [c]ourt to
sentence Appellant to complete 200 hours of community
service under the direction of the Clearfield County
Community Service Program[?]
Anders Brief at 4.
In his first issue, Appellant claims the trial court imposed an illegal
sentence. In particular, Appellant contends that the trial court erred in failing
to award him credit for the time he spent on probation while his first appeal
was pending before this Court. Anders Brief at 10; see also
Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa. Super. 2018) (“A claim
asserting that the trial court failed to award credit for time served implicates
the legality of the sentence.”). Issues relating to the legality of a sentence
are questions of law. Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa.
Super. 2016). Our standard of review over such questions is de novo and the
scope of review is plenary. Id.The Pennsylvania Sentencing Code, with regard to awarding credit for
time served, provides in relevant part as follows:
§ 9760. Credit for time served
After reviewing the information submitted under section 9737
(relating to report of outstanding charges and sentences) the
court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall
be given to the defendant for all time spent in custody as a result
of the criminal charge for which a prison sentence is imposed or
as a result of conduct on which such a charge is based. Credit shall
include credit for the time spent in custody prior to trial, during
trial, pending sentence, and pending the resolution of an appeal.
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* * *
(4) If the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act or acts that
occurred prior to his arrest, credit against the maximum term and
any minimum term of any sentence resulting from such
prosecution shall be given for all time spent in custody under the
former charge that has not been credited against another
sentence.
42 Pa.C.S.A. § 9760(1), (4).
Appellant seeks credit for the 90 days he purportedly spent on probation
after the trial court imposed its original sentence on December 4, 2018.
Appellant asserts that:
he checked in with probation for two months and made payments,
which [he] can verify through the probation department. On the
third month of checking in . . . the probation officer became aware
that this case was on appeal and then told [Appellant], I don’t
believe I’m supposed to be meeting with you, and sent him away.
N.T., 9/10/19, at 5. Appellant alleges that because he made payments toward
his fines and costs and appeared for monthly check-ins following the
imposition of his original sentence, he satisfactorily completed the
probationary period of his sentence. Anders Brief at 10.
The certified record belies Appellant’s argument. After Appellant filed
his appeal from the trial court’s December 4, 2018 judgment of sentence, the
trial court issued the following order:
NOW, this 9th day of January, 2019 the Court notes that the
[Appellant] filed an appeal to the Superior Court in the above-
captioned case; therefore, it is the ORDER of this Court that the
sentence and probationary period issued by this Court’s
Order of December 4, 2018 be and is hereby STAYED
pending the outcome of the [Appellant’s] appeal.
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Order, 1/9/19 (emphasis added). Also, at Appellant’s resentencing, the trial
court credited Appellant for money paid while the appeal was pending. See
N.T., 9/10/19, at 6 (“[Appellant] will receive financial credit for any monies
that he had previously paid.”). Therefore, Appellant’s probationary sentence
was not in effect while his prior appeal was pending, and he is not entitled to
credit for time served. Appellant’s first issue is frivolous.
In his second issue, Appellant contends that the trial court abused its
discretion by ordering, as a condition of probation, that he successfully
complete 200 hours of community service under the standard terms and
conditions of the Clearfield County Adult Probation Community Service
Program. Although framed as a challenge to the trial court’s sentencing
discretion, this issue challenges the legality of the sentence and is a question
of law subject to this Court’s plenary review. Commonwealth v. Hall, 80
A.3d 1204, 1211 (Pa. 2013) (stating that whether the trial court has the power
to impose a challenged condition under the Sentencing Code concerns the
legality of sentence); see also Commonwealth v. Melvin, 103 A.3d 1, 52
(Pa. Super. 2014) (same).
Section 9754 of the Sentencing Code provides that in imposing a
sentence of probation “[t]he court shall attach such of the reasonable
conditions authorized by section 9763 (relating to conditions of probation) as
it deems necessary to insure or assist the defendant in leading a law-abiding
life.” 42 Pa.C.S.A. § 9754(b). Section 9763(b) states:
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(b) Conditions generally.--The court may attach any of the
following conditions upon the defendant as it deems necessary:
* * *
(3) To participate in a public or nonprofit community service
program.
42 Pa.C.S.A. § 9763(b)(3).
A probation order is unique and individualized. It is constructed
as an alternative to imprisonment and is designed to rehabilitate
a criminal defendant while still preserving the rights of law-abiding
citizens to be secure in their persons and property. When
conditions are placed on probation orders they are formulated to
insure or assist a defendant in leading a law-abiding life.
Commonwealth v. Koren, 646 A.2d 1205, 1208–09 (Pa. Super. 1994)
(citations omitted). Moreover, as long as conditions placed on probation are
reasonable, it is within a trial court’s discretion to order them. Id.Here, the condition of probation requiring Appellant to successfully
complete 200 hours of community service is authorized under Section 9763
of the Sentencing Code without regard to whether the community service has
any connection to the defendant’s crime. 42 Pa.C.S.A. § 9763(b)(3). The
trial court was free to impose conditions on Appellant’s probation that are
specifically authorized by Section 9754 of the Sentencing Code, or those that
are sufficiently connected to the conviction and within the trial court’s
authority under Section 9763 of the Sentencing Code. Hall, 80 A.3d at 1211.
Thus, Appellant’s second issue is frivolous.
Finally, our independent review reveals no other non-frivolous issues
that Appellant could raise on appeal. See Dempster, 187 A.3d at 272. We
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therefore grant Counsel’s petition to withdraw and affirm Appellant’s judgment
of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2020
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