J-S18036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

COREY JOHNSON

                        Appellant                   No. 2171 EDA 2014


           Appeal from the Judgment of Sentence June 24, 2014
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0000329-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                              FILED JUNE 11, 2015

      Appellant, Corey Johnson, appeals from the June 24, 2014 judgment

of sentence revoking his parole and recommitting him to serve the balance

of his underlying sentence consecutively with another sentence in a case in

Northampton County, imposed while Appellant was on parole. In addition,

Appellant’s counsel filed a petition to withdraw as counsel with this Court,

together with a brief pursuant to Anders v. California, 386 U.S. 738

(1967) and its progeny, averring the appeal is wholly frivolous. After careful

review, we affirm and grant counsel’s petition to withdraw.

      The trial court succinctly summarized the history of this case as

follows.

                  On or about January 3, 2013, Appellant was
            arrested and charged with Possession of Drug
            Paraphernalia.1 On January 10, 2013, Appellant
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              entered a guilty plea to the offense, graded as a
              Misdemeanor of the Third Degree, before Magisterial
              District Judge Karen Devine. He was sentenced to
              twelve months’ probation.

                    On January 16, 2013, Appellant was arrested
              on a retail theft charge by the Bethlehem Police
              Department. Accordingly, a warrant was issued for
              his arrest in the above-captioned matter because the
              new arrest constituted a violation of his probation.

                    On April 2, 2013, Appellant appeared before
              this Court for a Gagnon II[1] hearing following his
              preliminary hearing in the retail theft case.
              Appellant conceded the allegations of the Adult
              Probation Department. The [trial c]ourt revoked his
              probation and resentenced Appellant to not less than
              two nor more than twelve months’ incarceration in
              Lehigh County Prison. Appellant was paroled on
              June 21, 2013.

                    On June 25, 2013, Appellant committed
              another retail theft and was again arrested by the
              Bethlehem Police Department. A warrant for his
              arrest was issued in the above-captioned case, but it
              was later amended to include another arrest on
              October 16, 2013, also in Northampton County, for
              various drug charges and public drunkenness.

                     On June 24, 2014, a Gagnon II hearing was
              held. During that hearing, Appellant conceded the
              allegations of his violation of parole. His parole was
              revoked and he was remanded to Lehigh County
              Prison to serve the balance of his sentence,
              consecutive to his sentence in Northampton County
              (CR-928-2014).
              ---------------------------------
              1
                35 P.S. § 780-113(a)(32).

Trial Court Opinion, 8/19/14, at 1-2 (footnote in original).
____________________________________________
1
  Gagnon v. Scarpelli, 411 U.S. 778 (1973) (setting forth the procedural
requirements for probation and parole revocations).


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       Appellant did not file a post-sentence motion. Appellant filed a timely

notice of appeal on July 24, 2014.2            On October 16, 2014, counsel filed a

motion to withdraw as counsel and an accompanying Anders brief.

Appellant has not filed any response.

       In his Anders brief, counsel raises the following issue on Appellant’s

behalf for our review.

              Whether the trial court imposed an illegal, harsh and
              excessive punishment upon the defendant after a
              parole-revocation hearing by recommitting the
              defendant to serve the balance of his sentence on a
              paraphernalia charge and running that sentence
              consecutively to another sentence?

Anders Brief at 4.

       “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, we review counsel’s Anders brief for

compliance with the requirements set forth by our Supreme Court in

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

                    [W]e hold that in 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
____________________________________________
2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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              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.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005) and its progeny, “[c]ounsel also must provide a copy of the Anders

brief to his client. Attending the brief must be a letter that advises the client

of his right to: (1) retain new counsel to pursue the appeal; (2) proceed pro

se on appeal; or (3) raise any points that the appellant deems worthy of the

court[’]s attention in addition to the points raised by counsel in the Anders

brief.” Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation omitted). “Once counsel has satisfied

the above requirements, it is then this Court’s duty to conduct its own

review of the trial court’s proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

      Instantly, we are satisfied that counsel has complied with the technical

requirements of Anders and Santiago. Counsel carefully summarized the

history of the case and made appropriate references to the record.           She

acknowledged her own review of the record, articulated the issues that could

arguably support an appeal, but stated her conclusion that the appeal is

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nevertheless frivolous.   Further, she set forth the reasons upon which she

based that conclusion.     Counsel has also complied with the notification

requirements described in Millisock. Since receiving notice, Appellant has

not filed any response. We therefore proceed with our independent review

of the record and the issue presented on Appellant’s behalf.

     Appellant’s issue on appeal conflates a challenge to the discretionary

aspect of his sentence and a challenge to the legality of his sentence.   A

claim that a sentence is harsh and excessive implicates the discretionary

aspects of a sentence. Commonwealth v. Treadway, 104 A.3d 597, 599

(Pa. Super. 2014).    Additionally, Appellant challenges the running of his

sentence consecutively to his Northampton County sentence as illegal.

Anders Brief at 10. With regard to the first issue, both the trial court and

counsel point out that a discretionary aspect of sentence claim is not

cognizable in a parole revocation context. Trial Court Opinion, 8/19/14, at

3; Anders Brief at 9. We agree.

                 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

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            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.

                   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, 290-291 (Pa. Super. 2008)

(citations and footnote omitted).    Based on these considerations we agree

Appellant’s discretionary aspect of sentence claim is frivolous.

      Relative to Appellant’s assertion that his sentence was illegally made

to run consecutive to the Northampton County sentence, we conclude this

issue is also frivolous. This Court has held that a trial court may properly

order the sentence remaining to be served following a parole revocation to

run consecutive to a separate sentence imposed while the appellant was on

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parole.    Commonwealth v. Ortiz, 745 A.2d 662, 665-666 (Pa. Super.

2000), appeal denied, 795 A.2d 973 (Pa. 2000); cf. Commonwealth v.

Sharpe, 665 A.2d 1194, 1196-1197 (Pa. Super. 1995) (holding that

imposition of consecutive sentences after a parole violation that were

previously ordered to run concurrently was an illegal sentence).

      In light of all the foregoing, we conclude all of Appellant’s issues on

appeal are frivolous. See Santiago, supra. We therefore grant counsel’s

petition to withdraw as counsel and affirm the June 24, 2014 judgment of

sentence.

      Judgment of sentence affirmed.      Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2015




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