J-S25031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    BRANDON LEE GORDON,                        :
                                               :
                         Appellant             :         No. 2000 MDA 2018

      Appeal from the Judgment of Sentence Entered November 21, 2018
                in the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0001036-2014

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                 FILED JULY 05, 2019

        Brandon Lee Gordon (“Gordon”) appeals from the judgment of sentence

entered following the violation of his parole for the offenses of driving under

the influence of alcohol or a controlled substance (“DUI”), driving under

suspension-DUI related, and unauthorized use of a motor vehicle. 1 Counsel

for Gordon has filed a Petition to Withdraw from representation and a brief

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s

Petition to Withdraw, and affirm Gordon’s judgment of sentence.

        The trial court summarized the history underlying the instant appeal as

follows:

             On June 3, 2014, [Gordon] tendered a plea of guilty to [the
        above-described charges].   That same date, [Gordon] was
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1   See 75 Pa.C.S.A. §§ 3802, 1543(b)(1.1)(i); 18 Pa.C.S.A. § 3928.
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      sentenced according to the terms of his plea agreement with the
      Commonwealth.

             On August 14, 2015, the [trial court] found [Gordon] in
      violation of his parole[,] and recommitted him to the county jail
      to serve the balance of 57 months [for the DUI-relate offense],
      unless earlier paroled. Two weeks later, [Gordon] was paroled to
      an in-patient treatment facility.

             On May 15, 2017, the county probation department filed a
      Notification of Hearing for Violation. A parole violation hearing
      was scheduled for June 21, 2017, before the [trial] court.
      [Gordon] failed to appear for the hearing and a warrant was issued
      for his apprehension.

             On August 28, 2017, the [trial court] found [Gordon] in
      violation of his parole[,] and recommitted him to the county jail
      to serve the balance of the sentence (56 months, 1 day [for the
      DUI sentence]), effective August 16, 2017. [Gordon] was paroled
      again on January 3, 2018. Upon his release, [Gordon] resided in
      the State of Maryland; the Adult Probation Department requested
      supervision by Maryland.

             On April 5, 2018, [the trial court] issued a bench warrant
      for [Gordon’s] apprehension due to his non-compliance with the
      Interstate Compact for the Supervision of Adult Offenders. On
      October 25, 2018, the Adult Probation Department filed a
      Notification of Hearing for Violation; a violation hearing was
      schedule before the court on November 21, 2018.

             [Gordon waived his violation hearing, and admitted to
      violating his parole.] … [T]he [trial court] recommitted [Gordon]
      to serve the balance of the DUI sentence (51 months, 14 days),
      effective October 11, 2018. The [trial court] further ordered
      [Gordon’s] place of confinement to be changed to the state
      correctional system, and ceded paroling authority to the
      Pennsylvania Board of Probation and Parole.

Trial Court Opinion, 1/30/19, at 1-3. Gordon timely filed a Notice of Appeal,

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal. Counsel subsequently filed, in this Court, a Petition


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to Withdraw from representation, and a brief pursuant to Anders and

Santiago.

      Gordon presents the following issues for our review:

      1. Did the trial court abuse its discretion when it recommitted
         [Gordon,] on November 21, 2018[,] to serve the balance of his
         sentence in the State Correctional Institution in [the instant]
         case …?

      2. Did the trial court abuse its discretion when it recommitted
         [Gordon] to serve the balance of his sentence without giving
         him a minimum and a maximum number in [the instant] case
         …?

Brief for Appellant at 8.

      We may not address the merits of the issues Gordon raises on appeal

without first reviewing counsel’s request to withdraw. Commonwealth v.

Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).

      Prior to withdrawing as counsel on a direct appeal under Anders,
      counsel must file a brief that meets the requirements established
      by our Supreme Court in Santiago. The brief 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. Counsel also must provide a copy of
      the Anders brief to [her] client. Attending the brief must be a

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       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. Nischan, 928 A.2d 349,
       353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d
       40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied the technical requirements of Anders

and Santiago, this Court must then “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).

       Here, counsel’s Petition to Withdraw states that she has reviewed the

record and concluded that the appeal is frivolous.        Additionally, counsel

notified Gordon that she was seeking permission to withdraw, furnished

Gordon with copies of the Petition to Withdraw and Anders brief, and advised

Gordon of his right to retain new counsel or proceed pro se to raise any points

he believes worthy of this Court’s attention. Further, counsel’s brief complies

with the dictates of Santiago. Accordingly, we next conduct our review of

the issues raised by Gordon, and of the record to insure that no issues of

arguable merit have been missed or misstated. See Dempster, 187 A.3d at

272.

       Gordon first claims that the trial court improperly resentenced him to

serve the balance of his sentence in a State Correctional Institution. Brief for


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Appellant at 12. Gordon asserts that “his time would be more productive in a

local jail[, s]o that he could participate in the [w]ork [r]elease [p]rogram.”

Id. at 13. According to Gordon, a local sentence “would have better afforded

him the ability to care for his family and comply with his monetary

obligations.” Id.

      Where an appellant challenges the discretionary aspects of a sentence,

there is no automatic right to appeal, and an appellant’s appeal should be

considered as a petition for allowance of appeal. Commonwealth v. W.H.M.,

932 A.2d 155, 163 (Pa. Super. 2007).

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

      [W]e conduct a four-part analysis to determine[] (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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)).

      Here, Gordon timely filed a post-sentence Motion and a Notice of Appeal.

Gordon has also included a separate Pa.R.A.P. 2119(f) Statement of Reasons

in his appellate brief.




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        In his Pa.R.A.P. 2119(f) Statement of Reasons, Gordon alleges that

his probation violation did not warrant the imposition of a prison term in a

State Correctional Institution. See Brief for Appellant at 12-13.

        As this Court has explained,

        [t]he determination of whether a particular issue raises a
        substantial question is to be evaluated on a case-by-case basis.
        Generally, however, in order to establish a substantial question,
        the appellant must show actions by the sentencing court
        inconsistent with the Sentencing Code or contrary to the
        fundamental norms underlying the sentencing process.

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citation omitted).

        Our review of Gordon’s Pa.R.A.P. 2119(f) Statement of Reasons reveals

that Gordon failed to allege that his sentence is inconsistent with the

Sentencing Code, or contrary to the fundamental norms underlying the

sentencing process. Accordingly, we decline to find that Gordon has raised a

substantial question permitting our review.

        In his second claim, Gordon argues that the trial court imposed an illegal

sentence, as it sentenced him to serve the balance of his previously imposed

sentence, without giving him a minimum and a maximum sentence. Brief for

Appellant at 8, 11.2

        As this Court has explained,

        the order revoking parole does not impose a new sentence; it
        requires appellant, rather, to serve the balance of a valid sentence
____________________________________________


2   There is no argument supporting this contention in the Anders brief.

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         previously imposed. Moreover, such a recommittal is just that -
         a recommittal and not a sentence. Further, at a “Violation of
         Parole” hearing, the court is not free to give a new sentence. The
         power of the court after a finding of violation of parole in cases
         not under the control of the State Board of Parole is “to recommit
         to jail….” See Commonwealth v. Fair, 345 Pa. Super. 61, 64,
         497 A.2d 643, 645 (1985)[, (citing] 61 P.S. § 314[)]. There is no
         authority for giving a new sentence with a minimum and
         maximum. Id. at 61, 497 A.2d at 645.

Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa. Super. 1993); see also

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

that “the only option for a court that decides to revoke parole is to recommit

the defendant to serve the already-imposed original sentence”).

          Because the trial court’s sentence recommitted Gordon to serve the

balance of his already-imposed sentence, Gordon’s claim of an illegal sentence

fails.

          Finally,   our   independent    review   discloses   no   other   “arguably

meritorious issues that counsel, intentionally or not, missed or misstated.”

Dempster, 187 A.3d at 272.               As such, we grant counsel’s Petition to

Withdraw, and affirm the judgment of sentence.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/05/2019

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