Com. v. Mellor, F. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FELICIA ANN MELLOR :
:
Appellant : No. 1866 EDA 2019
Appeal from the Judgment of Sentence Entered June 5, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002882-2017
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: Filed: March 23, 2020
Felicia Ann Mellor appeals from the judgment of sentence, entered in
the Court of Common Pleas of Delaware County, following revocation of her
parole and recommitment to back time of 533 days with parole upon
completion of a Prep 2 drug and alcohol program. Mellor claims her sentence
is excessive. Counsel has filed a petition to withdraw and a brief pursuant to
Anders/Santiago.1 After our review, we conclude Mellor’s argument that her
sentence is excessive cannot be addressed in the context of a review of a
parole revocation, and, therefore, is wholly frivolous. Accordingly, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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On September 11, 2017, Mellor entered a negotiated guilty plea to
driving under the influence, 75 Pa.C.S.A. § 3731, graded as misdemeanor of
the first degree. On that same date, the court sentenced Mellor to time served
to 23 months’ incarceration and granted Mellor immediate parole with
conditions. On June 5, 2019, at a Gagnon II2 hearing, the court found Mellor
in violation of parole.3 N.T. Gagnon II Hearing, 6/5/19, at 12. The court,
upon recommendation of Mellor’s parole officer, to whom the Commonwealth
deferred, sentenced Mellor to full back time of 533 days, to be “immediately
paroled upon successful completion of Prep 2 to her Pennsylvania address.”
Id. Mellor filed a motion for reconsideration, which was denied, and this
timely appeal followed.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders and Santiago. Pursuant to Anders and
Santiago, counsel is required 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.
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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3Mellor conceded she had violated parole. N.T. Gagnon II Hearing, 6/5/19,
at 3-4.
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Santiago, supra at 358-61; Commonwealth v. Hernandez, 783 A.2d 784,
786 (Pa. Super. 2001).
Counsel’s petition to withdraw indicates that he sent a copy of the
Anders brief to Mellor, along with a letter advising her of her right to proceed
pro se or with new, privately retained counsel. Petition to Withdraw,
11/22/19, at ¶¶ 5-6.4 Moreover, counsel’s brief substantially complies with
the requirements of Anders/Santiago. Counsel includes a summary of the
relevant factual and procedural history, refers to the portions of the record
and relevant legal authorities that could arguably support Mellor’s claim, and
concludes that, after a thorough review of the record, the appeal is wholly
frivolous. Accordingly, we conclude that counsel has met the technical
requirements of Anders and Santiago, and we can now undertake our review
to determine whether the claim is wholly frivolous.
Counsel’s Anders brief raises one issue of arguable merit: “Whether
the term imposed herein is harsh and excessive under the circumstances due
to the condition that Mellor could only be paroled from incarceration after
completion of [the] Prep 2 Program, necessitating two more months of
incarceration until the program even begins.” Anders Brief, at 3.
Initially, we observe:
Unlike a probation revocation, a parole revocation does not
involve the imposition of a new sentence. Indeed, there is no
authority for a parole-revocation court to impose a new penalty.
Rather, the only option for a court that decides to revoke parole
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4 Mellor has not filed a response to counsel’s petition.
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is to recommit the defendant to serve the already-imposed,
original sentence. At some point thereafter, the defendant may
again be paroled. Therefore, the purposes of a court’s parole
revocation hearing—the revocation court’s tasks—are to
determine whether the parolee violated parole and, if so, whether
parole remains a viable means of rehabilitating the defendant and
deterring future antisocial conduct, or whether revocation, and
thus recommitment, are in order.
Following parole revocation and recommitment, the proper issue
on appeal is whether the revocation court erred, as a matter of
law, in deciding to revoke parole and, therefore, to recommit the
defendant to confinement. Accordingly, an appeal of a parole
revocation is not an appeal of the discretionary aspects of
sentence. As such, a defendant appealing recommitment
cannot contend, for example, that the sentence is harsh
and excessive. Such a claim might implicate discretionary
sentencing but it is improper in a parole-revocation appeal.
Similarly, it is inappropriate for a parole-revocation appellant to
challenge the sentence by arguing that the court failed to consider
mitigating factors or failed to place reasons for sentence on the
record. Challenges of those types again implicate the
discretionary aspects of the underlying sentence, not the legal
propriety of revoking parole.
Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)
(internal citations omitted) (emphasis added).
Here, as noted above, Mellor is not challenging the revocation of her
parole.5 Rather, she is challenging the court’s recommitment order. That
order, requiring her to serve her full back time (522 days), made her eligible
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5 As noted, Mellor admitted to her parole violations. See n.3, supra. After
the court found Mellor had violated parole, it had one sentencing option–to
recommit Mellor to serve the already-imposed, original sentence. See
Kalichak, supra. See also Commonwealth v. Ware, 737 A.2d 251, 253
(Pa. Super. 1999) (reaffirming that “upon revocation of parole, the only
sentencing option available is recommitment to serve the balance of the term
initially imposed”).
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for parole upon completion of the Prep 2 Program; however, there was a two
and one-half month wait for the start of that program. The court
acknowledged this, stating: “I wish the Prep 2 Program started a week from
now instead of August 13 . . . but I can’t control that.” N.T. Gagnon II Hearing,
supra at 10. In this regard, Mellor argues her sentence is “excessive.”
Under our reasoning in Kalichak, Mellor cannot challenge the length of
incarceration imposed by the court. That case also precludes Mellor’s claim
that she is somehow entitled to accelerated parole.6 After an independent
review of the record, we agree with counsel’s assessment that Mellor’s appeal
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6 At the time of recommitment, Mellor was enrolled in the Prep 1 Program,
had two weeks left in that program, and was required to complete that before
commencing Prep 2. N.T. Gagnon II Hearing, supra at 11. Notably, Mellor’s
parole officer testified as to why the Prep 2 Program was critical in Mellor’s
case:
Your Honor, [Mellor] was in an intensive outpatient program
before she quit going[,] which is why we recommended Prep 2.
That will ensure that she actually successfully completes the
program. As far as the no narcotic medications, that comes from
the Director of the Mental Health Unit, Mary Ellen Hoffman[,]
because [Mellor] has had a history of abusing prescription
medications and narcotics in the past, that is why I was directed
to include that in my recommendation. I – we don’t have any
objection to her going to her psychiatrist and she can be
prescribed mental health medications that aren’t narcotics.
Id. at 8-9. The Prep 2 Program, which commenced August 13, 2019 and
continued for twelve weeks, theoretically concluded in November 2019. This
Court has not been notified that Mellor successfully completed the program
and has been paroled. We note that the court’s June 5, 2019 recommitment
to 522 days brings the completion date of Mellor’s sentence to December
2020.
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is wholly frivolous. See Kalichak, supra; see also Commonwealth v.
Galletta, 864 A.2d 532 (Pa. Super. 2004) (claim of excessive sentence cannot
be addressed in context of review of parole revocation). We, therefore, affirm
the judgment of sentence and grant counsel’s request to withdraw.
Judgment of sentence affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:3/23/20
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