J-S63043-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                 Appellee                      :
                                               :
                     v.                        :
                                               :
    VINCENT ANDREW WILSON,                     :
                                               :
                 Appellant                     :   No. 1738 EDA 2019


         Appeal from the Judgment of Sentence Entered May 15, 2019
              in the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0002582-2017

BEFORE:      GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED JANUARY 17, 2020

        Vincent Andrew Wilson (Appellant) appeals from the May 15, 2019

judgment of sentence entered following the revocation of his parole.

Appellant’s counsel has filed a petition to withdraw and a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence

and grant counsel’s petition to withdraw.

        We glean the following facts from the record.        On April 12, 2017, a

criminal complaint was filed against Appellant, charging him with receiving

stolen property, unauthorized use of a motor vehicle,1 and possession of


____________________________________________


1   This charge was subsequently withdrawn.


*   Retired Senior Judge assigned to the Superior Court.
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marijuana. On May 11, 2017, Appellant entered into a negotiated guilty plea

and agreed to plead guilty to receiving stolen property in exchange for a

sentence of 6 to 23 months of incarceration and the payment of restitution.

Appellant was sentenced accordingly on the same day. 2          Appellant was

paroled to an address in the state of Delaware in October 2017.           N.T.,

5/15/2019, at 6. He was arrested at least two times in Delaware after his

release. Id. at 7.

       Thus, on February 9, 2018, a bench warrant was issued for Appellant

for violating several terms of his parole in the instant case. A Gagnon I3

hearing was held on April 2, 2018. On May 15, 2019,4 a Gagnon II hearing

was held, where Appellant stipulated to the parole violations. N.T.,

5/15/2019, at 4.        The revocation court revoked Appellant’s parole and

sentenced him to his full backtime of 390 days of incarceration. Id. at 7.

       Appellant did not file a post-sentence motion, and timely filed a notice

of appeal. The revocation court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement, and in lieu thereof, on July 2, 2019, counsel for Appellant filed a

____________________________________________
2 Appellant received credit for time served from April 12, 2017, to the date
of sentencing. Thus, his maximum sentence would expire on March 12,
2019.

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (outlining the procedure for
the revocation of probation and parole).

4Although the record is not entirely clear as to why there was such a long
delay between hearings, it appears the delay was related to the fact that
Appellant was serving a sentence in the state of Delaware.


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statement of intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4). The

revocation court declined to file a responsive opinion, citing counsel’s notice

of intent to file an Anders brief. See Revocation Court Opinion, 7/8/2019.

      Appellant’s counsel filed both an Anders brief and a petition to

withdraw as counsel. Accordingly, the following principles guide our review

of this matter.

             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). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:




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        [I]n 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.

Santiago, 978 A.2d at 361.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied substantially with the

technical requirements set forth above.5          Therefore, we now have the

responsibility “to conduct a simple review of the record to ascertain if there

appear on its face to be arguably meritorious issues that counsel,

intentionally or not, missed or misstated.” Commonwealth v. Dempster,

187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

        We begin with the issue set forth by counsel, which counsel avers may

arguably support an appeal: “[w]hether the term of full backtime imposed

herein, instead of a sentence of time served, is harsh and excessive under

the circumstances due to its adverse impact on his sentence in the state of

Delaware involving treatment for his serious drug addiction.” Anders Brief

at 3 (capitalization altered). Because this issue involves a challenge to the

discretionary aspects of Appellant’s sentence, we bear in mind the following.

____________________________________________
5   Appellant has not filed a response to counsel’s petition.


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      An appellant is not entitled to the review of challenges to the

discretionary aspects of a sentence as of right.          Rather, an appellant

challenging the discretionary aspects of his sentence must invoke this

Court’s jurisdiction.   We determine whether the appellant has invoked our

jurisdiction by considering the following four factors:

      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant timely filed a notice of appeal. However, our review of

the record reveals that Appellant did not properly preserve this issue at

sentencing or by filing a post-sentence motion. Accordingly, Appellant has

not preserved this issue for our review, and he is not entitled to relief. See

Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010) (stating

that an appellant waives for appeal issues challenging the discretionary

aspects of his sentence where he does not raise them at sentencing or in a

post-sentence motion).

      We now conduct a “simple review of the record,” Dempster, 187 A.3d

at 272, and in doing so point out that the instant case involves the

revocation of parole, which we consider mindful of the following.



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            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
      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. 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. In the exercise of that discretion, a conviction for a
      new crime is a legally sufficient basis to revoke parole.

            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.

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)

(internal citations omitted).

      Instantly, Appellant stipulated to the violations of his parole. N.T.,

5/15/2019, at 4. Moreover, at the Gagnon II hearing, the revocation court

pointed out that Appellant was convicted of new crimes in Delaware, which is

a legally sufficient justification to recommit Appellant. See Kalichak, supra.

Thus, any challenge to the revocation of parole or recommitment to serve

backtime is without merit.




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     Based upon the foregoing, we agree with counsel that a challenge to

the discretionary aspects of Appellant’s sentence is frivolous. Additionally,

“[a]fter conducting a full examination of all the proceedings as required

pursuant to Anders, we discern no non-frivolous issues to be raised on

appeal.” Dempster, 187 A.3d at 273. Accordingly, we affirm the judgment

of sentence and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/20




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