Com. v. Hitchner, W. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM HITCHNER :
:
Appellant : No. 1404 EDA 2022
Appeal from the Judgment of Sentence Entered April 26, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002486-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM HITCHNER :
:
Appellant : No. 1405 EDA 2022
Appeal from the Judgment of Sentence Entered April 26, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007188-2019
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 8, 2023
Appellant, William Hitchner, appeals from two judgments of sentence,
both entered April 26, 2022. We affirm.
The facts and procedural history of this case are as follows. On July 19,
2013, at docket number CP-23-CR-0002486-2011 (“Docket Number
2486-2011”), Appellant pled guilty to driving under the combined influence of
alcohol and a controlled substance (third offense) and driving while operating
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privilege is suspended or revoked.1 That day, Appellant was sentenced to one
to two years’ incarceration, followed by three years’ probation. Trial Court
Order, 7/19/13, at 1. Therefore, Appellant’s maximum date for probation
supervision would expire July 19, 2018. “Following his release from
confinement, Appellant relocated to the State of Delaware in order to care for
his mother, who had a stroke, and his supervision was transferred to the State
of Delaware pursuant to the Interstate Compact for the Supervision of Adult
Offenders Act.” Commonwealth v. Hitchner, 2020 WL 6194602, at *1 (Pa.
Super. Oct. 22, 2020) (unpublished memorandum) (footnote omitted).
Approximately six months prior to the expiration of Appellant’s
probationary period, the State of Delaware informed the Delaware County
Office of Probation and Parole that Appellant violated the conditions of his
probation by, inter alia, failing to report on multiple occasions. Request for
Bench Warrant, 1/30/18, at 1-2. As such, on January 30, 2018, the Delaware
County Office of Probation and Parole requested that a bench warrant be
issued for Appellant. Id. A bench warrant was issued on February 1, 2018.
Trial Court Order, 2/1/18, at 1. Appellant was arrested on or about January
23, 2019.
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1 75 Pa.C.S.A. §§ 3802(d)(3) and 1543(b)(1), respectively.
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Thereafter, on February 21, 2019, the matter proceeded to a Gagnon
I hearing.2 At the February 21, 2019 hearing, the court concluded that
probable cause existed to find Appellant in violation of his probation, but
Appellant would be released from custody upon acquisition of a verifiable
address in Pennsylvania. Trial Court Order, 2/21/19, at 1. Appellant was
subsequently released. A Gagnon II hearing was then scheduled for March
15, 2019, but continued until April 12, 2019. Request for Bench Warrant,
4/8/19, at 1-2. On April 8, 2019, before Appellant’s Gagnon II hearing
convened, the Delaware County Office of Probation and Parole alleged that
Appellant violated the terms of his probation and applied for a bench warrant
for Appellant’s arrest. Request for Bench Warrant, 4/8/19, at 1-2; see also
Trial Court Order, 4/8/19, at 1. A warrant was issued on April 8, 2019, but
Appellant was not apprehended until August 30, 2019. A Gagnon II hearing
was then scheduled for October 30, 2019. Application for Continuance,
10/30/19, at 1. On October 24, 2019, however, while incarcerated for
violating his probation at Docket Number 2486-2011, Appellant was charged
with controlled substance contraband to confined person prohibited,
possession of a controlled substance by an unregistered person, and
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2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth
v. Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining that, when a
parolee or probationer is detained pending a revocation hearing, due process
requires a determination at the pre-revocation hearing (Gagnon I hearing) of
probable cause to believe a violation was committed, and upon finding of
probable cause, a second, more comprehensive hearing (Gagnon II hearing)
follows before the trial court makes its final revocation decision).
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possession of drug paraphernalia at docket number CP-23-CR-0007188-2019
(“Docket Number 7188-2019”). The Gagnon II hearing at Docket Number
2486-2011 was continued and later conducted on November 6, 2019.
During the November 6, 2019 Gagnon II hearing, the Commonwealth
introduced a report “from the Delaware State Probation Office [that]
documented events between December 15, 2017[] and January 10, 2018”
detailing Appellant’s various probation violations (hereinafter, the “Delaware
Report”). Hitchner, 2020 WL 6194602 at *1. Appellant objected to the
admission of the Delaware Report as hearsay. Id. The trial court concluded
that the Delaware Report met “‘[t]he business record . . . hearsay exception
under Pa.R.E. 803(6) . . . and, thus, was admissible.’” Id. (citation omitted).
“At the conclusion of the hearing, the trial court found that Appellant []
violated the terms of his probation [at Docket Number 2486-2011] and
resentenced him to time-served to six months of confinement followed by 30
months[’] probation.” Id.On December 2, 2019, Appellant challenged the admission of the
Delaware Report, as well as the trial court’s reliance on the report, in an appeal
to this Court. Id. Meanwhile, on April 8, 2020, while his appeal was pending
at Docket Number 2486-2011, Appellant entered a guilty plea to possession
of controlled substance - contraband/inmate3 at Docket Number 7188-2019
and was sentenced to time-served to 23 months’ incarceration, followed by
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3 18 Pa.C.S.A. § 5123(a)(2).
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three years’ probation. Trial Court Order, 4/8/20, at 1. Appellant was
released on parole immediately or shortly thereafter. On October 22, 2020,
this Court issued a memorandum opinion vacating Appellant’s judgment of
sentence at Docket Number 2486-2011. See Hitchner, supra. In particular,
we concluded that the trial court erred in admitting the Delaware Report
because it was not properly authenticated and did not qualify as a business
record under Pa.R.E. 803(6), an exception to the rule against hearsay. Id. at
*4. Accordingly, we remanded the matter to the trial court for a second
Gagnon II hearing. Id.
Following our remand order in Hitchner, supra, the procedural
histories of the matters pending at Docket Number 2486-2011 and Docket
Number 7188-2019 began to converge. Beginning on October 22, 2020, the
parties attempted to schedule Appellant’s Gagnon II hearing at Docket
Number 2486-2011. A review of the certified record reveals that the parties
had significant trouble scheduling the Gagnon II hearing because, inter alia,
they were unable to locate Appellant from at least May 25, 2021 until on or
around October 20, 2021. In addition, starting in February 2021, the
Delaware County Office of Probation and Parole sought to revoke Appellant’s
parole at Docket Number 7188-2019. Thus, a bench warrant was issued on
February 26, 2021 and Appellant was arrested that same day. See Trial Court
Order, 2/26/21, at 1. On March 9, 2021, a Gagnon I hearing was conducted
at Docket Number 7188-2019, during which the trial court concluded that
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probable cause existed to find Appellant in violation of his parole. Trial Court
Order, 3/9/21, at 1.
Eventually, on November 17, 2021, a Gagnon II hearing commenced
at both Docket Number 2486-2011 and Docket Number 7188-2019. At that
time, Deborah Lamberto, Delaware County Adult Parole and Probation Officer,
and Jeffery Roney, the Deputy Director of Delaware County Adult Probation
and Parole, testified. In particular, Officer Lamberto testified that she began
supervising Appellant in 2018 during his probation on charges at Docket
Number 2486‑2011 and, eventually, assumed responsibility for supervising
Appellant at Docket Number 7188-2019 when he was released on parole. N.T.
Hearing, 11/17/21, at 13 and 15. Officer Lamberto also testified that, during
Appellant’s supervisory period for the charges at Docket Number 2486‑2011,
he not only violated the terms of his probation, resulting in the issuance of a
bench warrant and arrest, but he also committed new crimes, specifically the
charges filed at Docket Number 7188‑2019 to which he pled guilty. Id.
Moreover, Officer Lamberto testified that Appellant committed technical
violations at both dockets. Id. at 17, 20, 23-24, 26‑27, and 30. Based upon
the foregoing, Officer Lamberto recommended Appellant be found in violation
of his probation at Docket Number 2486‑2011 and in violation of his parole at
Docket Number 7188‑2019. Id. at 27.
After Officer Lamberto’s testimony, a lengthy discussion took place
between the court, the Commonwealth, and defense counsel, wherein, inter
alia, defense counsel requested to either withdraw as counsel or continue the
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Gagnon II hearing to another date, due to her alleged inability to adequately
prepare. Id. at 40-56 and 68-77. Ultimately, the trial court continued the
hearing until November 19, 2021, without determining whether Appellant
violated the terms of his probation at Docket Number 2486-2011 or the terms
of his parole at Docket Number 7188-2019. Id. at 87-90. It is not clear from
the record whether a hearing went forward on November 19, 2021.
Nonetheless, on November 19, 2021, the trial court issued an order directing
Appellant’s counsel to submit “any and all [m]otions/[p]etitions on or before
November 24, 2021.” Trial Court Order, 11/19/21, at 1. Appellant did not
file any motions or petitions before November 24, 2021.
Instead, on January 12, 2022, Appellant filed a petition for the presiding
judge’s recusal or disqualification based upon allegations of prejudice against
defense counsel. Appellant’s Petition, 1/12/22, at *1-*4 (unpaginated). The
trial court convened a hearing on January 13, 2022, during which defense
counsel orally moved to withdraw. N.T. Hearing, 1/13/22, at 1-18. This time,
the trial court granted defense counsel leave to withdraw. Id. at 12. New
counsel was subsequently appointed, and additional hearings were held on
January 21, 2022 and March 7, 2022. At these hearings, the parties discussed
outstanding issues, including Appellant’s contention that his probation at
Docket Number 2486-2011 expired on July 19, 2018, prior to the
commencement of the Gagnon II hearing on November 17, 2021. The trial
court directed the parties to submit briefs on this issue and scheduled a
hearing for April 26, 2022.
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Appellant’s Gagnon II hearing resumed on April 26, 2022. At that time,
the Commonwealth, through Delaware County Adult Probation and Parole,
presented an “amended recommendation.” N.T. Hearing, 4/26/22, at 4. In
particular, Officer Lamberto stated:
It is our recommendation today that on [Docket Number
2486-2011, Appellant] be found in violation of his probation,
and his probation be revoked. It is recommended that
[Appellant] be resentenced to three to six months
[incarceration] with credit for time served. That credit being
[October 20, 2021 through April 19, 2022] which is 180 days.
On [Docket Number 7188-2019 . . . Appellant] is found in
violation of his parole and his parole is to be revoked. It is
recommended that he be resentenced to his full back time to
180 days with immediate parole upon an address verification.
Prior to his release an updated drug and alcohol evaluation be
completed and he comply with the recommended evaluation.
[Appellant] will be supervised by the Substance Abuse Unit. No
interstate transfer will take place until [Appellant] is compliant
with all terms and conditions of his sentence. Regarding the
consecutive probation on [Docket Number 7188-2019 . . .
Appellant] is not found in violation of his probation and that is
to remain intact as originally sentenced.
Id. at 6-7. After finding Appellant in violation of his probation at Docket
Number 2486-2011 and in violation of his parole at Docket Number
7188-2019, the court adopted Officer Lamberto’s recommendation in
imposing its sentence on April 26, 2022. Id. at 8-9. On May 23, 2022,
Appellant filed separate notices of appeal at each trial court docket. That
same day, Appellant’s counsel moved for leave to withdraw, which the trial
court granted on May 25, 2022. On June 16, 2022, current counsel was
appointed by the trial court to represent Appellant.
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Appellant and the trial court complied with Pa.R.A.P. 1925 in both cases.
At Docket Number 2486-2011, the trial court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b) on or before July 25, 2022. Trial Court Order, 5/25/22, at 1. On July
6, 2022, Appellant filed a concise statement at Docket Number 2486-2011.
With respect to Docket Number 7188-2019, the trial court (on May 25,
2022) ordered Appellant to file a concise statement pursuant to Pa.R.A.P.
1925(b) on or before July 25, 2022. Trial Court Order, 5/25/22, at 1. On
July 20, 2022, Appellant’s counsel filed an application for leave to file a
Pa.R.A.P. 1925(b) or 1925(c)(4) statement nunc pro tunc. Appellant’s
Application, 7/20/22, at *1-*3 (unpaginated). The trial court granted
Appellant’s application, allowing him until August 10, 2022 to file a statement
pursuant to Pa.R.A.P. 1925(b) or 1925(c)(4). Trial Court Order, 7/20/22, at
1. Appellant complied and filed a 1925(c)(4) statement on August 10, 2022.
Thereafter, on September 7, 2022, this Court consolidated Appellant’s appeals
sua sponte and directed Appellant to file one brief. Order, 9/7/22, at 1.
With regard to Docket Number 2486-2011, Superior Court Docket
Number 1404 EDA 2022, Appellant raises the following issue on appeal:
Whether the probation supervision in the within matter expired
at the time Appellant committed a new crime, rendering
unlawful the finding that [] Appellant violated his supervision
and the entry of a new judgment of sentence based on the new
crime, where the original warrant for the violation, issued
February 1, 2018, was based upon alleged violations emanating
from the State of Delaware that were not proven at the Gagnon
II hearing held [on] November 1[7], 2021, and where the
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alleged violations established at the hearing occurred after
[Appellant’s] supervision would have expired?
Appellant’s Brief at 6.
At Docket Number 7188-2019, Superior Court Docket Number 1405 EDA
2022, Appellant’s counsel has filed a petition to withdraw and brief pursuant
to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We will first address Appellant’s
substantive issue, i.e., his challenge to the trial court’s decision to revoke his
probation at Docket Number 2486-2011.
Herein, Appellant challenges the validity of the revocation proceedings
and whether the Commonwealth established, by a preponderance of the
evidence, that Appellant violated his probation. In particular, Appellant argues
that his probationary period expired July 19, 2018 and that the
Commonwealth “fail[ed] to allege any violations of the rules governing
Delaware County Adult Probation and Parole, that occurred prior to the
expiration of Appellant’s supervision; nor was any evidence of such [a]
violation offered at the Gagnon II hearing” that commenced on November
17, 2021. Appellant’s Brief at 14-15. We disagree.
As this Court previously stated:
In reviewing an appeal from a judgment of sentence imposed
after the revocation of probation, this Court's scope of review
includes the validity of the hearing, the legality of the final
sentence, and if properly raised, the discretionary aspects of
the appellant's sentence.
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Commonwealth v. Starr, 234 A.3d 755, 759 (Pa. Super. 2020) (citation and
quotation marks omitted), appeal denied, 243 A.3d 724 (Pa. 2020).
“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. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007), appeal
denied, 945 A.2d 169 (Pa. 2008). For a trial court to find an individual in
violation of probation, the trial court “must find, based on the preponderance
of the evidence, that the probationer violated a specific condition of probation
or committed a new crime[.]” Commonwealth v. Foster, 214 A.3d 1240,
1251 (Pa. 2019) (stating, “a [trial] court may find a defendant in violation of
probation only if the defendant [] violated one of the ‘specific conditions’ of
probation included in the probation order or [] committed a new crime”).
“The courts of this Commonwealth have long rejected the notion that
the sentence of an absconder or delinquent parolee continues to run, as if it
were being served, to the point of expiring on its scheduled expiration date.”
Commonwealth v. Ortega, 995 A.2d 879, 885 (Pa. Super. 2010),
disapproved of on other grounds by Foster, supra. Indeed, as held by this
Court in Ortega, if an individual absconds or is otherwise delinquent while on
probation, his probationary period will be “extended by his ongoing
delinquency.” Id.; see also Commonwealth v. Wright, 116 A.3d 133,
136-137 (Pa. Super. 2015) (holding that the appellant’s probation was
extended to “May 2, 2011, seventeen months after she reinstated contact with
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her probation officer” after absconding for seventeen months). Hence, a court
may revoke probation based upon conduct that occurred during a defendant’s
probation “as extended by delinquent time.” Ortega, 995 A.2d at 885.
As stated above, Appellant maintains that his supervisory period expired
on July 19, 2018. He further alleges that, because the Commonwealth failed
to proffer evidence of any probation violations that occurred prior to that date,
the trial court erred in revoking his probation. Contrary to this claim,
Appellant’s probationary period did not expire on July 19, 2018. Instead, his
supervision was “extended by his ongoing delinquency.” Ortega, 995 A.2d
at 885.
A review of the certified record reveals that, following allegations from
the State of Delaware that Appellant violated the terms of his probation,
Delaware County Office of Probation and Parole resumed supervision and
sought a bench warrant for Appellant’s arrest. Specifically, a bench warrant
was issued on February 1, 2018, five months and 18 days prior to the
expiration of his probationary period. Because Appellant absconded and was
not apprehended until January 23, 2019, his probation period was extended
until July 11, 2019, five months and 18 days after he was apprehended and
resumed supervision. Following Appellant’s apprehension on January 23,
2019, another bench warrant was issued for his arrest on April 8, 2019, based
upon allegations that he violated the terms of his probation. At that time,
Appellant had three months and three days left in his probationary period.
Appellant, however, absconded again and was not apprehended until August
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30, 2019. As such, Appellant’s probationary period was further extended to
December 3, 2019, three months and three days after he was apprehended
and resumed supervision. Thus, to revoke Appellant’s probation, the
Commonwealth was required to demonstrate that Appellant “violated a
specific condition of probation or committed a new crime” prior to December
3, 2019. Foster, 214 A.3d at 1251.
Upon review, we conclude that the Commonwealth established by a
preponderance of the evidence that Appellant violated the terms of his
probation prior to December 3, 2019. In particular, during the November 17,
2021 hearing, Officer Lamberto testified that, in 2019, the State of Delaware
asked the Delaware County Adult Probation and Parole to resume supervision
of Appellant because he violated the terms of his probation.4 N.T. Hearing,
11/17/21, at 13. Officer Lamberto explained that, after Delaware County
resumed supervision, Appellant was required “to report regularly, whether it
was weekly or biweekly” and to “submit to random drug screens.” Id. at 17.
Contrary to those conditions, Officer Lamberto testified that Appellant tested
positive for methamphetamines on March 22, 2019 and failed to report on
March 29, 2019 and April 5, 2019. Id. at 17 and 23. Hence, Officer
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4 This testimony was submitted by way of background. The Commonwealth
did not attempt to seek revocation of Appellant’s probation on this basis. See
N.T. Hearing, 11/17/21, at 52 (the Commonwealth stating it “removed every
comment about interstate compact from this report. … We agree, no talk about
interstate compact.”).
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Lamberto’s testimony established that Appellant committed three technical
violations before his probationary sentence expired on December 3, 2019.
Moreover, Officer Lamberto’s testimony during the November 17, 2021
hearing demonstrated that Appellant committed, was charged, and ultimately
pled guilty to a new crime in September 2019, approximately three months
before his probationary period expired on December 3, 2019. Indeed, Officer
Lamberto explained that, following a period of delinquency, Appellant was
incarcerated on August 30, 2019. Id. at 14-15. While in Delaware County
Prison, Appellant committed another offense, specifically, “contraband, a
felony two.” Id. at 15. Ultimately, Officer Lamberto testified that Appellant
“entered a negotiated guilty plea” to the aforementioned charge on April 8,
2020. Id. at 15. Because the Commonwealth was permitted to defer a
violation hearing until after the disposition of Appellant’s new criminal charge,
i.e., his guilty plea, the fact that Appellant did not enter his guilty plea until
after the expiration of his probationary sentence is of no consequence. See
Commonwealth v. Burrell, 441 A.2d 744, 746 (Pa. 1982). Hence, the
Commonwealth demonstrated that Appellant committed technical violations
and committed a new crime during the relevant time period.
In contrast to Appellant’s claim, therefore, it is apparent that the
Commonwealth established that Appellant violated the terms of his probation
prior to its expiration on December 3, 2019. We note, however, that
Appellant’s probation was not revoked, nor was a new sentence imposed, until
April 26, 2022. Accordingly, we are compelled to address a remaining issue:
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whether Appellant’s “probation [was] revoked and [his] sentence imposed
within a reasonable time after the expiration of the probationary period.”
Wright, 116 A.3d at 137. The following principles govern our review of this
issue. Rule 708 of the Pennsylvania Rules of Criminal Procedure provides, in
relevant part, as follows:
(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;
(2) a finding of record that the defendant violated a
condition of probation, intermediate punishment, or
parole.
Pa.R.Crim.P. 708(B)(1), (2). Moreover, our Court previously explained:
The language “speedily as possible” has been interpreted to
require a hearing within a reasonable time. Rule 708 does not
establish a presumptive period in which the Commonwealth
must revoke probation; but instead, the question is whether the
delay was reasonable under the circumstances of the specific
case and whether the appellant was prejudiced by the delay.
The relevant period of delay is calculated from the date of
conviction or entry of guilty plea to the date of the violation
hearing.
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.
The court must analyze the circumstances surrounding the
delay to determine if the Commonwealth acted with diligence in
scheduling the revocation hearing. Prejudice in this context
[contemplates] the loss of essential witnesses or evidence, the
absence of which would [complicate] the determination of
whether probation was violated, or [whether an] unnecessary
restraint of personal liberty [was imposed].
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Commonwealth v. Woods, 965 A.2d 1225, 1227–1228 (Pa. Super. 2009),
quoting Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa. Super. 2004).
In this instance, Appellant’s Gagnon II hearing at Docket 2486-2011
was originally scheduled for April 12, 2019 but, because Appellant absconded
and was not apprehended until August 30, 2019, it was rescheduled for
October 30, 2019. Application for Continuance, 10/30/19, at 1. Appellant,
however, was charged with new crimes, causing the Gagnon II hearing to be
again continued until November 6, 2019. Then, at the November 6, 2019
Gagnon II hearing, the Commonwealth’s sole evidence in support of its
position of revocation was the Delaware Report. Ultimately, though, this Court
deemed the Delaware Report to be inadmissible hearsay, vacated Appellant’s
revocation sentence at Docket Number 2486-2011 and remanded for a new
Gagnon II hearing on October 22, 2020.
Upon remand, Appellant’s counsel entered her appearance on December
11, 2020. A hearing was conducted on February 17, 2021 and on February
19, 2021, the trial court issued an order directing Appellant’s counsel to
“submit a [m]emorandum/[c]ase [l]aw” on issues raised during the February
17, 2021 hearing on or before March 5, 2021. Trial Court Order, 2/19/21, at
1. The issue centered upon the contention that Appellant’s probation expired
prior to the Gagnon II hearing. Appellant’s counsel never filed a submission.
Nonetheless, Appellant’s Gagnon II hearing was scheduled for May 25, 2021.
On that day, however, Appellant failed to appear, resulting in the issuance of
a bench warrant. Appellant was not arrested until October 20, 2021.
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Appellant’s Gagnon II hearing was then scheduled for, and ultimately
convened, on November 17, 2021.
At the outset of the November 17, 2021 hearing, Appellant’s counsel
asked to withdraw as counsel, indicating that she previously made an oral
request to withdraw. N.T. Hearing, 11/17/21, at 3. Because Appellant’s
counsel failed to file a written motion before the hearing and because it
determined that permitting withdrawal would prejudice Appellant, the trial
court denied counsel’s request. Id. at 7. Despite the trial court’s ruling,
Appellant’s counsel requested a continuance, claiming that she had not been
in contact with Appellant since before May 25, 2021 and was otherwise
unprepared to proceed. Id. at 6-7. Again, the trial court denied Appellant’s
counsel’s request. Id. Ultimately, however, the November 17, 2021 hearing
was continued until November 19, 2021 to enable Appellant’s counsel to better
prepare for the hearing. Id. at 87-90. There is no indication from the record
that the hearing was actually conducted on November 19, 2021. Rather, on
that day, the trial court entered an order, directing Appellant’s counsel to “file
any and all [m]otions/[p]etitions on or before November 24, 2021.” Trial
Court Order, 11/19/21, at 1. Again, Appellant’s counsel failed to do so.
Instead, on January 12, 2022, Appellant’s counsel filed a petition for the
presiding judge’s recusal and/or disqualification. In the petition, Appellant’s
counsel averred that the court expressed “displeasure for [Appellant’s
counsel” and a “bias[] toward the Commonwealth” because “of comments
made at three different proceedings [indicting that the court] ha[d] no
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confidence in [Appellant’s counsel].” Appellant’s Petition, 1/12/22, at *1-*2
(unpaginated). The trial court held a hearing on Appellant’s motion the next
day. At the hearing, the trial court asked Appellant’s counsel why she failed
to file any memorandum in response to its February 19, 2021 order or
otherwise request an extension to do so. N.T. Hearing, 1/13/22, at 4. In
addition, the court inquired into its “role . . . [in] determining whether
[Appellant] ha[d] effective assistance of counsel.” Id. at 8. Ultimately, during
the January 13, 2022 hearing, Appellant’s counsel conferred with Appellant
and was permitted to withdraw. Id. at 12. Immediately thereafter, the trial
court appointed new counsel for Appellant and scheduled another hearing for
the next week, seeking to swiftly resolve the matter. Id. at 16. The parties
convened again on January 21, 2022, including Appellant’s newly-appointed
counsel. N.T. Hearing, 1/21/22, at 3-4. At that time, the trial court stated
that briefs were due regarding the expiration of Appellant’s probation but
allowed Appellant’s counsel time to get up to speed on the issue. Id. at 4-7.
Appellant’s brief was finally submitted to the court on March 25, 2022. The
Commonwealth responded on April 8, 2022, and the Gagnon II hearing
resumed and, eventually, concluded on April 26, 2022.
Upon review, we conclude that, while there was a significant period
between our remand for a new Gagnon II hearing (October 20, 2020) and
the ultimately conclusion of the Gagnon II hearing (April 26, 2022), the delay
is largely, if not wholly, attributable to Appellant and his counsel. Indeed,
after convening a hearing on February 17, 2021, Appellant’s counsel was
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ordered to submit a memorandum on or before March 4, 2021, but failed to
do so. It was not until the appointment of new counsel on January 13, 2022
that Appellant came forward with the requested memorandum addressing the
expiration of Appellant’s probation. Moreover, Appellant’s counsel was
unprepared for the November 17, 2021 hearing, resulting in further
continuances even though the Commonwealth presented testimony and
submitted its recommendation that day. Finally, the delay can also be
attributed to Appellant himself as he absconded from May 25, 2021 until
October 20, 2021. Based upon all of the foregoing, we conclude that
Appellant’s Gagnon II hearing, which was initially held on November 17,
2021 and concluded on April 26, 2022, was conducted within a reasonable
time and the trial court properly revoked Appellant’s probation based upon its
finding that Appellant committed technical violations and a new crime prior to
December 3, 2019.
Next, we address counsel’s Anders Brief, filed at Docket Number
7188-2019, Superior Court Docket Number 1405 EDA 2022. Before reviewing
the merits of this appeal, this Court must first determine whether counsel has
fulfilled the necessary procedural requirements for withdrawing as counsel.
Commonwealth v. Miller, 715 A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, counsel must satisfy certain technical
requirements. First, counsel must “petition the court for leave to withdraw
stating that, after making a conscientious examination of the record, counsel
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has determined that the appeal would be frivolous.” Miller, 715 A.2d at 1207.
Second, counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts,
with citations to the record; (2) refer[s] to anything in the
record that counsel believes arguably supports the appeal; (3)
set[s] forth counsel's conclusion that the appeal is frivolous;
and (4) state[s] 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. Finally, counsel must furnish a copy of the
Anders brief to his or her client and advise the client “of [the client's] right to
retain new counsel, proceed pro se or raise any additional points worthy of
this Court's attention.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
Super. 2007).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. ... [T]his
review does not require this Court to act as counsel or otherwise advocate on
behalf of a party. Rather, it requires us only to conduct a review of the record
to ascertain if[,] on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze those issues
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of arguable merit; just identify them, deny the motion to withdraw, and order
counsel to analyze them[.]”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
In the case at bar, counsel complied with all of the above procedural
obligations. We must, therefore, review the entire record and analyze whether
this appeal is, in fact, wholly frivolous. Our analysis begins with the claim
raised in the Anders brief, which is as follows:
Whether the trial court lawfully found Appellant in violation of
parole and remanded Appellant to serve the balance of his [back
time]?
Appellant’s Brief at 25.
Counsel sets forth two arguments in support of the foregoing question.
First, counsel lodges a “collateral[] challenge” to Appellant’s conviction at
Docket Number 7188-2019. Appellant’s Brief at 29. In particular, he claims
that the “initial warrant,” issued on January 30, 2018 “was invalid, so was his
resulting confinement.” Id. Appellant further argues that, “if his confinement
[were] invalid, his conviction for [c]ontraband, that is, possessing a controlled
substance while he was an inmate, is unlawful.” Id. Appellant does not
specify why he believes that the “initial warrant” was invalid. Id. at 29- 32.
It appears, however, that Appellant’s claim is based upon his belief that his
probationary period at Docket Number 2486-2011 ended on July 18, 2018 and
he was not arrested pursuant to the bench warrant until January 2019, after
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his probationary period expired. Second, counsel argues that the trial court
erred in finding that Appellant violated the terms of his parole at Docket
Number 7188-2019. Id. We will address each of counsel’s claims in turn.
As explained above, we reject Appellant’s contention that his
probationary period expired on July 19, 2018. To the contrary, Appellant’s
probation was extended by the period he absconded or was otherwise
delinquent. Because Appellant’s challenge to the validity of the warrant is
based upon his erroneous contention regarding the expiration of his
probationary period, Appellant's derivative claim lacks merit. Moreover,
Appellant’s claim is improper given our standard of review in a
parole-revocation appeal. As this Court previously stated:
Unlike a probation revocation, a parole revocation does not
involve the imposition of a new sentence. Commonwealth v.
Mitchell, 632 A.2d 934, 936 (Pa. Super. 1993). Indeed, there
is no authority for a parole-revocation court to impose a new
penalty. Id. Rather, the only option for a court that decides to
revoke parole is to recommit the defendant to serve the
already-imposed, original sentence. Id. At some point
thereafter, the defendant may again be paroled. Id.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. Mitchell, 632 A.2d at 936, 937.
The Commonwealth must prove the violation by a
preponderance of the evidence and, once it does so, the
decision to revoke parole is a matter for the court's discretion.
Id. at 937. In the exercise of that discretion, a conviction for a
new crime is a legally sufficient basis to revoke parole.
Commonwealth v. Galletta, 864 A.2d 532, 539 (Pa. Super.
2004).
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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. Mitchell, 632 A.2d at
936.
Commonwealth v. Kalichak, 943 A.2d 285, 290–291 (Pa. Super. 2008)
(parallel citations and footnote omitted). As our scope of review is limited to
the determination of whether the trial court properly revoked Appellant’s
parole, it therefore follows that Appellant cannot now, at this juncture,
challenge his original guilty plea. Accordingly, we agree with counsel that
Appellant’s current challenge on this basis lacks merit.
Lastly, we address Appellant’s claim that the trial court erred in revoking
his parole at Docket Number 7188-2019. As previously stated, in order to
find an individual in violation of parole, the trial court is required 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.” Kalichak, 943
A.2d 285, 290–291 (citation omitted). At the November 17, 2021 Gagnon II
hearing, Officer Lamberto testified that Appellant presented positive drug
screens for methamphetamine on October 29, 2020 and November 23, 2020.
N.T. Hearing 11/17/21, at 24. Officer Lamberto also testified that Appellant
presented a positive drug screen for methamphetamine and amphetamine on
February 25, 2021. Id. Further, Officer Lamberto testified that, after
Appellant’s Gagnon I hearing on March 9, 2021, Appellant was required to
undergo a substance abuse evaluation and follow recommendations, contact
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the officer within 24 hours of release to schedule an appoint, enroll in
outpatient treatment, and update his address. Id. at 21. Appellant failed to
abide by any of the aforementioned requirements. Id. Accordingly, we
conclude that, based upon Appellant’s technical violations, any challenge to
the trial court’s decision to revoke Appellant’s parole and order him to serve
the balance of his sentence is frivolous.
We have independently considered the issues raised within counsel’s
Anders brief and we have determined that the claims related to Docket
Number 7188-2019, Superior Court Docket Number 1405 EDA 2022 are
frivolous. In addition, after an independent review of the entire record, we
see nothing that might arguably support this appeal as to Docket Number
7188-2019, Superior Court Docket Number 1405 EDA 2022. Accordingly, we
affirm Appellant's judgment of sentence and grant counsel's petition for leave
to withdraw at Docket Number 7188-2019, Superior Court Docket Number
1405 EDA 2022.
Petition for leave to withdraw appearance granted. Judgments of
sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2023
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