J-S61021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARQUIS AMIN MOORE                         :
                                               :
                       Appellant               :   No. 1304 EDA 2019

         Appeal from the Judgment of Sentence Entered March 20, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003481-2018


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 13, 2019

        Appellant, Marquis Amin Moore, appeals from the judgment of sentence

entered on March 20, 2019, after the trial court found him in violation of his

parole. On appeal, Appellant’s counsel filed a petition to withdraw as counsel

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

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

we grant counsel’s petition to withdraw and affirm Appellant’s judgment of

sentence.

        We briefly summarize the facts and procedural history of this case as

follows. On May 24, 2018, Appellant was arrested and charged with knowing

and intentional possession of a controlled substance pursuant to 35 P.S.

§ 780-113(a)(16) and possession of drug paraphernalia under 35 P.S.

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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§ 780-113(a)(32).       See Police Criminal Complaint, 5/24/18.        On June 28,

2018, Appellant entered a guilty plea to simple possession and the trial court

sentenced him to three to 23 months’ incarceration. One of the conditions of

Appellant’s     sentence     required      him   to   complete   and   follow   the

recommendations of Diagnostic Services at the Delaware County jail, including

drug and alcohol evaluations.

       On February 11, 2019, Delaware County’s Adult Probation and Parole

Services Department (the department) issued a request for a Gagnon II1

hearing in which it alleged that Appellant engaged in inappropriate behavior

during two sessions of a drug and alcohol program. This conduct included the

use of foul language, aggressive gesturing, stealing supplies, extorting other

participants, and making inappropriate remarks toward instructors.              On

February 22, 2019, the department issued a Gagnon II hearing report in

which it recommended that Appellant be held in violation of the terms of his

parole and that he be sentenced to serve his full back time.

       The trial court convened a hearing on March 20, 2019 to consider

Appellant’s alleged parole violations.2          At the hearing, Appellant did not

contest his alleged conduct and the trial court found him in violation of his

parole. Consequently, the court sentenced Appellant to 398 days’ back time,


____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

2 The date on which Appellant was released on parole is not immediately clear
from the record.

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in accordance with the recommendations of the department. In addition, the

court ordered Appellant to undergo a psychiatric evaluation.

      Appellant filed a counseled notice of appeal on April 18, 2019.

Thereafter, on April 24, 2019, the court ordered Appellant to file and serve a

concise statement pursuant to Pa.R.A.P. 1925(b). On May 13, 2019, counsel

for Appellant filed a statement pursuant to Pa.R.A.P. 1925(c)(4) declaring that

he intended to file an Anders brief and seek leave to withdraw. The trial court

issued its opinion on June 11, 2019.

      Before reaching the merits of the appeal, we must first address the

propriety of counsel's petition to withdraw and Anders brief.        We have

previously determined:

      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 the
      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,


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      we will deny the petition and remand for the filing of an advocate's
      brief.

      Our Supreme Court has clarified portions of the Anders
      procedure:

             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 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.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (some

citations omitted).

      Upon    review,   counsel   has   complied   with   all   of   the   foregoing

requirements pursuant to Anders and Santiago.                   Appellant has not

responded.    Thus, we proceed to review the issue set forth in counsel’s

Anders brief before conducting an independent review of the record to discern

if there are non-frivolous issues overlooked by counsel. Id.

      Counsel for Appellant identifies only a single issue which arguably

supports this appeal. This claim alleges that the trial court imposed an unduly

harsh and excessive sentence in view of the trivial nature of Appellant’s

alleged violations and the trial court imposed a sentence of incarceration

without regard to counsel’s arguments. See Anders Brief at 3. In support of

this claim, counsel asserts that Appellant’s sentence was unduly harsh and


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excessive since “the mitigating circumstances presented in the record far

outweigh[ed] the need to impose the amount of jail time” ordered by the trial

court. Id. at 8.

       It is well-settled that discretionary sentencing challenges do not lie in

the context of an appeal from the revocation of parole.

       [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.3
       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).

       Following parole revocation and recommitment, the proper issue
       on appeal is whether the revocation court erred, as a matter of
____________________________________________


3 Plainly, we are speaking of cases where the authority to grant and revoke
parole is in the hands of the original sentencing court. Such cases occur when
the maximum term of the original sentence involves incarceration of less than
two years. Commonwealth v. Tilghman, 652 A.2d 390, 391 (Pa. Super.
1995). When the sentence actually imposed on a defendant includes a
maximum term of two years or more, the authority to parole rests not with
the sentencing court but with the Pennsylvania Board of Probation and Parole.
Tilghman, 652 A.2d at 391.

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      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.

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

(footnote in original).

      The Anders brief argues that the trial court’s sentence was unduly harsh

and excessive given the technical nature of Appellant’s admitted parole

violations and the asserted minimal need for incarceration for the period

designated by the trial court. Since it is well-settled that such challenges are

not cognizable in the context of an appeal from the revocation of parole, it is

clear that Appellant is not entitled to relief on this issue. Finally, we have

conducted an independent review of the entire record as required by Anders

and have not identified any other non-frivolous issues.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/19




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