J-S60019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

BLAIR RUCKER

                            Appellant                    No. 3401 EDA 2015


            Appeal from the Judgment of Sentence October 21, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006507-2013
                                          CP-23-CR-0004508-2014


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 03, 2016

        Blair Rucker appeals from the judgment of sentence imposed October

21, 2015, in the Delaware County Court of Common Pleas. The trial court

revoked Rucker’s parole on charges of retail theft in two separate cases, and

sentenced him to serve back time.              Contemporaneous with this appeal,

Rucker’s counsel seeks to withdraw from representation and has filed an

Anders brief,1 which identifies a challenge to the appropriateness of his

sentence. For the reasons below, we affirm the judgment of sentence and

grant counsel’s petition to withdraw.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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        The relevant facts and procedural history underlying this appeal are as

follows.   At each docket, Rucker entered a negotiated guilty plea to one

count of retail theft, graded as a misdemeanor of the second degree.        At

Docket No. 6507-2013, he was sentenced, on October 31, 2013, to a term

of one month to 23 months’ imprisonment. He later violated the terms of

his parole and, following a Gagnon II2 hearing on December 17, 2014, was

sentenced to full back time of 657 days, but, granted immediate parole upon

his completion of a county prison program.         At Docket No. 4508-2014,

Rucker was sentenced, on October 23, 2014, to time served to 23 months’

imprisonment.

        Subsequently, Rucker violated the terms of his parole in both cases,

and proceeded to a Gagnon II hearing on October 21, 2015.               At the

hearing, he stipulated to the violations, and the trial court sentenced him to

full back time, with release only after he served the maximum date: (1) 524

days at Docket No. 6507-2013, and (2) 583 days at Docket No. 4508-2014.

The court directed the sentences run concurrently to one another.         This

timely appeal followed.3
____________________________________________


2
    See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3
  On December 10, 2015, the trial court ordered Rucker to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After requesting and being granted an extension of time, on February 11,
2016, Rucker’s counsel filed a statement of his intent to file an
Anders/McClendon brief pursuant to subsection (c)(4). See Pa.R.A.P.
1925(c)(4).



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        When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any

of the substantive issues raised on appeal.        Commonwealth v. Bennett,

124 A.3d 327, 330 (Pa. Super. 2015).             Here, our review of the record

reveals counsel has substantially complied with the requirements for

withdrawal outlined in Anders, supra, and its progeny.              Specifically,

counsel requested permission to withdraw based upon his determination that

the appeal is “wholly frivolous,”4 filed an Anders brief pursuant to the

dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),

furnished a copy of the Anders brief to Rucker and advised Rucker of his

right to retain new counsel or proceed pro se.              Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Moreover, our

review of the record reveals no correspondence from Rucker supplementing

the Anders brief. Accordingly, we will proceed to examine the record and

make an independent determination of whether the appeal is wholly

frivolous.

        The only issue identified in counsel’s Anders brief challenges the

appropriateness of his sentence. He asserts the offense he was arrested for,

and which constituted a violation of his parole, was a misdemeanor of the

third degree, which carried a maximum sentence of one year imprisonment.


____________________________________________


4
    See Application to Withdraw Appearance, 5/13/2016, at ¶ 3.



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See Anders Brief at 6. Further, he claims he is “severely mentally ill and

was so at the time of his offenses,” and this was a factor the court should

have taken into consideration at sentencing. Id.

     Our review of a parole revocation hearing and concomitant sentence is

well-established:

     Unlike a probation revocation, a parole revocation does not
     involve the imposition of a new sentence. Commonwealth v.
     Mitchell, 429 Pa.Super. 435, 632 A.2d 934, 936 (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. …

           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. …

           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. Accordingly, an appeal of a parole revocation is not
     an appeal of the discretionary aspects of sentence. Id.

            As such, a defendant appealing recommitment cannot
     contend, for example, that the sentence is harsh and excessive.
     Galletta, 864 A.2d at 539.         Such a claim might implicate
     discretionary sentencing but it is improper in a parole-revocation
     appeal. Id. 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. Commonwealth v. Shimonvich, 858
     A.2d 132, 135 (Pa. Super. 2004). Challenges of those types
     again implicate the discretionary aspects of the underlying
     sentence, not the legal propriety of revoking parole. Id.



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Commonwealth v. Kalichak, 943 A.2d 285, 290–291 (Pa. Super. 2008)

(emphasis supplied).

      First, we note the grading of the offense which precipitated the

revocation of Rucker’s parole sentences is irrelevant. As the Kalichak Court

explained, “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 290. Likewise, Rucker’s claim that the trial court failed to consider his

mental health issues before ordering him to serve his full back time invokes

a challenge to the discretionary aspects of sentencing, an issue that is not

appropriate in an appeal from a parole revocation sentence. See id. at 291.

Accordingly, we conclude Rucker has failed to present any viable claim for

our review.

      Because we agree with counsel’s assessment that this appeal is wholly

frivolous, we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

      Judgment of sentence affirmed.        Petition to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2016




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