J-S79044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    ANDRE GOFF                                 :
                                               :
                      Appellant                :      No. 1553 EDA 2016

                    Appeal from the PCRA Order June 6, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0309511-2005

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED DECEMBER 19, 2017

        Appellant, Andre Goff, appeals nunc pro tunc from the order entered in

the Philadelphia County Court of Common Pleas, which denied his first

petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1           We

affirm.

        The relevant facts and procedural history of this case are as follows.

           On February [9], 2006, a jury convicted [Appellant] on
           charges of robbery and possession of an instrument of
           crime [(“PIC”)].[2] On March 9, 2006, [Appellant] was
           sentenced to seven and a half to fifteen [years’]
           imprisonment followed by five [years’] probation.
           [Appellant] did not file a notice of appeal. [Appellant] filed
           a [pro se] petition under the Post-Conviction Relief Act on
           July 24, 2006. On June 8, 2007, [Appellant’s] request for
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. §§ 3701, 907, respectively.
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          PCRA relief was granted. As a result, [Appellant’s] right to
          file a direct appeal was reinstated nunc pro tunc.
          [Appellant timely] filed a notice of appeal [nunc pro tunc]
          on July 5, 2007. On July 24, 2008, the Superior Court
          affirmed [Appellant’s] judgment of sentence. [Appellant’s]
          petition for allowance of appeal to the Supreme Court was
          denied on April 1, 2009.

          On January 20, 2013, [Appellant] was arrested [while on
          parole] and charged with several firearms violations, to
          which he later pled guilty. [The] court held a Daisey
          Kates[3] hearing on April 12, 2013[,] after which
          [Appellant’s] probation was revoked. On June 7, 2013,
          [Appellant] was sentenced to two and a half to five
          [years’] imprisonment followed by five [years’] probation.
          [Appellant] did not file an appeal. On April 8, 2014, new
          counsel filed a PCRA petition alleging that Daisey Kates
          counsel was ineffective for failing to file a notice of appeal.
          Thereafter on June 6, 2014, [the] court held an evidentiary
          hearing, and after finding [Appellant’s] claim to be
          meritless, issued an order denying [Appellant’s] petition to
          reinstate his appellate rights nunc pro tunc. [Appellant
          timely] filed a notice of appeal on July 5, 2014[,] and on
          November 10, 2014, [the] court issued an opinion.
          [Appellant’s] appeal was dismissed on February 20,
          2015[,] for failure to file a brief. [Appellant] then filed a
          [pro se] petition under the [PCRA] on July 17, 2015. On
          April 22, 2016, [the] court granted [Appellant’s] right to
          appeal, nunc pro tunc, [from] the June 6, 2014 order
          denying PCRA relief. [Appellant timely] filed a notice of
          appeal [nunc pro tunc] to the Superior Court on May 19,
          2016.     On November 18, 2016, [the] court ordered
          [Appellant] to file a statement of [errors] complained of on
          appeal. [Appellant] filed this statement on November 29,
          2016, while his counsel filed a similar statement on
          December 3, 2016.

____________________________________________


3 See Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973)
(holding there is no constitutional prohibition preventing trial court from
conducting probation/parole revocation hearing before trial on new criminal
charges which led to revocation claim).



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(PCRA Court Opinion, filed June 29, 2017, at 1-2).

       Appellant raises the following issue for our review:

          WAS THE COURT’S IMPOSITION OF A NEW SENTENCE
          ILLEGAL WHERE APPELLANT HAD BEEN RELEASED ON
          PAROLE AND WHOSE PROBATION HAD NOT YET BEGUN?

(Appellant’s Brief at 9).4

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the record supports the court’s determination and

whether the court’s decision is free of legal error. Commonwealth v. Ford,

947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319

(2008). This Court grants great deference to the findings of the PCRA court

if the record contains any support for those findings.           Commonwealth v.

Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007).       Credibility determinations are within the province of the

PCRA court when a hearing is held on the matter.                 Commonwealth v.

Rathfon, 899 A.2d 365 (Pa.Super. 2006).               If the record supports a PCRA

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

       Appellant    argues     the   court     incorrectly   determined   he    violated

probation, when in fact his probation term had not yet begun.                  Appellant

claims the only option available to the court after revocation of Appellant’s
____________________________________________


4 Appellant challenges the legality of his sentence, which is cognizable under
the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vii).



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parole was to recommit him to serve out the remainder of his term of

incarceration. Appellant avers his issue is a challenge to the legality of his

sentence, which he cannot waive.      Appellant concludes this Court should

vacate his sentence and remand for resentencing. We disagree.

      Pennsylvania law states:

         If, at any time before the defendant has completed the
         maximum period of probation, or before he has begun
         service of his probation, he should commit offenses of
         such nature as to demonstrate to the court that he is
         unworthy of probation and that the granting of the same
         would not be in subservience to the ends of justice and the
         best interests of the public, or the defendant, the court
         could revoke or change the order of probation.            A
         defendant on probation has no contract with the court. He
         is still a person convicted of crime, and the expressed
         intent of the Court to have him under probation beginning
         at a future time does not change his position from the
         possession of a privilege to the enjoyment of a right.

Commonwealth v. Hoover, 909 A.2d 321, 323 (Pa.Super. 2006) (quoting

Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980))

(emphasis in original, internal quotation marks omitted). If a court revokes

a term of probation before the defendant has started to serve it, the court

has the same sentencing options available that existed at the time of the

original sentencing.   Commonwealth v. Ware, 737 A.2d 251 (Pa.Super.

1999), appeal denied, 561 Pa. 657, 747 A.2d 900 (1999).

      “Revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court’s decision will not be

disturbed on appeal in the absence of an error of law or an abuse of


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discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super.

2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008). The Sentencing

Code permits a court to revoke an order of probation under the following

circumstances:

        § 9771.      Modification or revocation of order of
        probation

        (a) General rule.—The court may at any time terminate
        continued supervision or lessen or increase the conditions
        upon which an order of probation has been imposed.

        (b) Revocation.—The court may revoke an order of
        probation upon proof of the violation of specified conditions
        of the probation.       Upon revocation the sentencing
        alternatives available to the court shall be the same as
        were available at the time of initial sentencing, due
        consideration being given to the time spent serving the
        order of probation.

        (c) Limitation on sentence of total confinement.—
        The court shall not impose a sentence of total confinement
        upon revocation unless it finds that:

           (1) the defendant has been convicted of another
           crime; or

           (2) the conduct of the defendant indicates that it is
           likely that he will commit another crime if he is not
           imprisoned; or

           (3) such a sentence is essential to vindicate the
           authority of the court.

42 Pa.C.S.A. § 9771(a)-(c).

     Instantly, after a jury convicted Appellant of robbery and PIC on

February 9, 2006, the court sentenced him to seven and half to fifteen years’

imprisonment plus five years’ probation. While on parole in January 2013,

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Appellant was arrested and charged with several firearms violations, to

which he later pled guilty. After a hearing, the court anticipatorily revoked

Appellant’s probation, and on June 7, 2013, resentenced him to two and half

to five years’ imprisonment plus five years’ probation.

      The court had authority to revoke Appellant’s probation before he

started serving his probation term.        See Hoover, supra.      Appellant

committed several firearm offenses, which demonstrated to the court that he

was unworthy of probation.     See id.; 42 Pa.C.S.A. § 9771(c).    The court

resentenced Appellant to a term of incarceration and probation consistent

with the options available at Appellant’s original sentencing.    See Ware,

supra. Therefore, the court imposed a legal sentence following revocation

of Appellant’s parole/probation.   Accordingly, we affirm the order denying

PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




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