J-S14035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :       IN THE SUPERIOR COURT OF
                                         :             PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
DAMIEN SMITH,                            :
                                         :
                 Appellant               :           No. 2220 EDA 2014

     Appeal from the Judgment of Sentence entered on June 26, 2014
          in the Court of Common Pleas of Philadelphia County,
           Criminal Division, No(s): CP-51-CR-0408221-1999;
                         CP-51-CR-1207251-1998

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED MARCH 09, 2015

     Damien Smith (“Smith”) appeals from the judgment of sentence

entered following the revocation of his parole/probation. Counsel for Smith

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 Smith’s judgment of sentence.

     In its October 1, 2014 Opinion, the trial court set forth the lengthy

procedural history underlying the instant appeal, which we adopt for

purposes of this appeal. See Trial Court Opinion, 10/1/14, at 1-4.

     In counsel’s Anders Brief, the following claims are presented for our

review:

     1. Did the lower court err in revoking [Smith’s] probation?
J-S14035-15



     2. Was [Smith’s] sentence legal?

Anders Brief at 3.

     This Court may not address the merits of the issues raised by the

appellant on appeal without first reviewing counsel’s request to withdraw

from representation. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.

Super. 2005). Therefore, we review counsel’s Petition at the outset.

     Our Supreme Court’s decision in Santiago, supra, did not alter the

procedural requirements counsel must satisfy in requesting to withdraw from

representation.   Counsel must (1) petition the court for leave to withdraw

stating that, after making a conscientious examination of the record, counsel

has determined that the appeal would be frivolous; (2) furnish a copy of the

brief to the defendant; and (3) advise the defendant that he or she has the

right to retain private counsel or raise additional arguments that the

defendant deems worthy of the court’s attention.        Commonwealth v.

Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

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

record and concluded that the appeal is frivolous.   Petition to Withdraw at

¶ 1. Additionally, counsel notified Smith that she was seeking permission to

withdraw and furnished Smith with copies of the Petition and Anders brief,

and advised Smith of his right to retain new counsel or proceed pro se to

raise any points he believes worthy of this Court’s attention. See id. at ¶ 2.

Accordingly, counsel has satisfied the procedural requirements of Anders.


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J-S14035-15


      We next determine whether counsel’s Anders brief meets the

substantive dictates of Santiago.    According to Santiago, in the Anders

brief that accompanies 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.

      Here, the Petition to Withdraw states that counsel notified Smith that

she is seeking permission to withdraw, furnished Smith with copies of the

Petition and Anders brief, and advised Smith of his right to retain new

counsel or proceed pro se, to raise any points he believes worth of this

Court’s attention. See Petition to Withdraw at ¶ 2. Counsel’s Anders Brief

provides the facts and procedural history of the case. Anders Brief at 4-6.

Additionally, the Anders brief refers to two claims that could arguably

support the appeal, and counsel states her conclusion that the issues are

wholly frivolous. Anders Brief at 8-14. Accordingly, counsel has complied

with the minimum requirements of Anders/Santiago, and we may review

the issues presented in the Anders Brief and the record to determine

whether the appeal is frivolous.

      In this appeal, Smith claims that the trial court erred in revoking his

probation, and imposing a sentence of total confinement. Anders Brief at


                                   -3-
J-S14035-15


9-12. In its Opinion, the trial court addressed this claim and concluded that

it lacks merit.   Trial Court Opinion, 9/30/14, at 5-8.    We agree with the

sound reasoning of the trial court, and affirm on this basis with respect to

Smith’s first claim.   See id.   We further agree with counsel’s assessment

that the claim is frivolous, given Smith’s history of probation violations. See

Anders Brief at 14.

      Smith also challenges his sentence as illegal.      Anders Brief at 12.

However, we agree with the assessment of Smith’s counsel that such claim

is without merit and frivolous. “[W]here probation is violated, the trial court

is free to impose any sentence permitted under the Sentencing Code and is

not restricted by the bounds of a negotiated plea agreement between a

defendant and prosecutor.” Commonwealth v. Partee, 86 A.3d 245, 249

(Pa. Super. 2014).     Further, as counsel concedes in the Anders brief, the

sentence does not exceed the statutory limits. See Anders Brief at 13 n.2.

      Finally, our independent review discloses no other non-frivolous issues

that could be raised on appeal by Smith.       We therefore grant counsel’s

Petition to Withdraw and affirm Smith’s judgment of sentence.

      Petition to Withdraw granted. Judgment of sentence affirmed.




                                  -4-
J-S14035-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2015




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                             IN THE COURT OF COMMON PLEAS
                        FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                 CRIMINAL TRIAL DIVISION


COMMONWEALTH                                                                CP -51-CR-1207251-1998
             CP-51-CR-1207251_1998 c ·
                               OPiniO~mm. v. Smith. Damien    :
                                                                  FII LED   CP-51-CR-0408221-1999

       vs.
                                                 OCT 0 1 2014
                 111/111111111111111111111 Criminal Appeals Unit
                       7205518761
                                           Jst Judicial District of PA
DAMIEN SMITH                                                                SUPERIOR COURT
                                                                            2220 EDA 2014


                                                             OPINION

BRINKLEY, J.                                                                SEPTEMBER 30, 2014


       Defendant Damien Smith appeared before this Court for a violation of probation hearing

on June 26,2014. This Court found him in direct and technical violation of his parole/probation

and sentenced him to 11 Yz to 23 months county incarceration plus 3 years reporting probation.

Defendant appealed this sentence and raised the following issues on appeal: (1) whether this

Court properly sentenced him to a term of total confinement; and (2) whether the sentence

imposed was excessive.

                                        FACTS AND PROCEDURAL HISTORY

       On March 18, 1998, Defendant was arrested and charged with possession with intent to

deliver (PWID). On May 5, 2003, Defendant pled guilty and was sentenced by the Honorable

Annette Rizzo to 11 Yz to 23 months incarceration plus 2 years probation. On December 9, 1998,

Defendant was arrested and charged with PWID and knowing and intentional possession of a

controlled substance (K&I). On October 14,2003, Defendant was tried and found guilty of both

charges and sentenced by the Honorable Lisa Richette to time served to 23 liz months


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incarceration plus 2 years reporting probation on each charge, to run consecutively. Defendant

was granted immediate parole.

        On May 18, 2004, Defendant was arrested and charged with theft, forgery and unlawful

use of a computer. These charges were subsequently withdrawn on August 25, 2008. In

September 2004, Defendant absconded from supervision and his whereabouts remained

unknown for the next four years until February 1,2008 when he was arrested and transferred to

Montgomery County. On September 11,2008, Judge Rizzo held a VOP hearing, found him in

violation and sentenced Defendant to 11 Y:z to 23 months incarceration plus 1 year reporting

probation. On November 6, 2008, this Court! held a VOP hearing, at which time Defendant was

found to be in technical violation of his parole. Parole was terminated and parole was revoked.

Defendant was sentenced to 11 Y:z to 23 months county incarceration plus 1 year reporting

probation to run concurrently with any other sentence imposed.

        On August 10,2009, Defendant was paroled to Maryland authorities. On November 22,

2009, only 3Y:z months after being paroled, Defendant was arrested and charged with K&I and

possession of marijuana. Defendant subsequently tested positive for marijuana on December 2,

2009, December 14,2009, January 26,2010 and March 16,2010. Defendant ceased reporting to

the Probation Department on June 15,2010. On October 13,2010, Defendant failed to appear

for a court date and a bench warrant was issued for his arrest. Once again, Defendant's

whereabouts remained unknown until he was arrested on probation warrants nearly four years

later on May 31, 2014. On June 16,2014, the Honorable Thomas Gehret of Municipal Court

found Defendant guilty on the possession of marijuana charge and imposed no further penalty.




IOn August 25, 2008, Judge Richette's case was re-assigned to this Court.


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           On June 26, 2014, this Court held a VOP hearing 2 . Defendant was represented at the

hearing by Alexandra Fensterer, Esquire, while the Commonwealth was represented by Kirk

Handrich, Esquire. After this Court reviewed Defendant's criminal history, Ms. Fensterer

requested that this      ~ourt   impose "either a short county sentence or something that would allow

him to bring Your Honor proof that he is working to payoff his fines and costs." While

acknowledging that Defendant had been on absconder status since 2010, Ms. Fensterer drew

attention to the fact that he had not incurred any new arrests during that time period and was

employed. (N.T. 6/26/2014 p. 6-8).

           Mr. Handrich, on behalf of the Commonwealth, stated that he was concerned that

Defendant had been on absconder status for the previous four years, without supervision, and

therefore there was no way of knowing what Defendant was doing during that time period. Mr.

Handrich stated that Defendant made the conscious choice to remove himself from the Court's

supervision and that choice ultimately brought him back to this Court. Ultimately, the

Commonwealth deferred to this Court's discretion in sentencing. rd. at 9.

           Defendant next spoke on his own behalf. First, he apologized to this Court "for not

following the procedures." He then stated that his work schedule had made it difficult for him to

report to probation, but he did try to arrange suitable dates to meet with his probation officer.

Defendant stated that he presently owned his own photography company, "Smile For Me

Photos," and he had operated that company for the last four years. Defendant claimed that his

K&I charge was a bogus case, because he was not in possession of marijuana, and he planned to

appeal the guilty verdict. Defendant stated he wanted to put the present case behind him so that

he could be productive and take care of his family. He promised that ifhe was given "a second

chance" that he would never abscond from supervision again. Defendant stated that his father

2   On August 16,20 I 0, Judge Rizzo's case was re-assigned to this Court and consolidated with Judge Richette's case.

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recently suffered a stroke and needed Defendant to care for him. Furthermore, Defendant was

due to become a father himself in six months. Defendant stated that he would be willing to

report two times a month. He further claimed that he had received his Q.E.D. from a library in

Norristown, but did not provide any documentation. Id. at 10-14.

           This Court found Defendant in direct and technical violation of his parole/probation and

sentenced him to 11 Y2 to 23 months county incarceration plus 3 years reporting probation, to run

concurrently on both Judge Richette and Judge Rizzo's cases. This Court stipulated that he serve

his sentence at Hoffman Hall and ordered him to complete drug treatment, parenting classes,

anger management treatment, to undergo random urinalyses and report two times a month while

on probation. In imposing this sentence, this Court noted that Defendant had thumbed his nose at

three separate judges by failing to comply with the terms of his probation and by absconding

twice for substantial periods of time. Defendant then asked this Court whether it would be

possible for him to receive early parole, and this Court informed Defendant that the only way he

would be able to get out early would be to fully comply with the conditions of his sentence while

at Hoffman Hall. Id. at 16-19 .

         . On July 1,2014, Defendant filed a motion through counsel to reconsider sentence 3 . On

July 28, 2014, Defendant appealed his sentence to Superior Court. On August 13,2014,

Defendant was ordered to file a Concise Statement of Errors Pursuant to Pa.R.A.P. 1925(b), and

defense counsel did so on September 3,2014.

                                                             ISSUES

           I.       WHETHER THE VOP COURT PROPERLY SENTENCED DEFENDANT
                    TO A TERM OF TOTAL CONFINEMENT.

           II.      WHETHER THE SENTENCE IMPOSED BY THE VOP COURT WAS
                    EXCESSIVE.

3   Defendant then filed his notice of appeal to Superior Court prior to this motion being ruled upon.

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                                              DISCUSSION

       I.      THE VOP COURT PROPERLY SENTENCED DEFENDANT TO A TERM
               OF TOTAL CONFINEMENT.

       This Court properly sentenced Defendant to 1112 to 23 months county incarceration in

conformity with the standards set forth in 42 Pa.C.S.A. §9771(c). Under Pennsylvania law,

sentencing is a "matter vested in the sound discretion ofthe sentencing judge, and a sentence will

not be disturbed on appeal absent a manifest abuse of discretion." Commonwealth v. Ferguson,

2006 PA Super. 18,893 A.2d 735, 739 (2006) (quoting Commonwealth v. Hyland, 2005 PA

Super. 199,875 A.2d 1175; 1184 (2005)). An abuse of discretion requires more than the

showing of a mere error in judgment; rather, an appellant must demonstrate that the trial court

was "manifestly unreasonable" or exercised judgment that was the result of "partiality, prejudice,

bias, or ill-will." Commonwealth v. Griffin, 2002 PA Super. 203, 804 A.2d 1, 7 (2002).

       When considering an appeal from a sentence imposed after the revocation of probation or

parole, appellate review is limited to the determination of "the validity of the probation

revocation proceedings and the authority of the sentencing court to consider the same sentencing

alternatives it had at the time of the initial sentencing." Commonwealth v. MacGregor, 2006 PA

Super. 336, 2006 Pa. Super. LEXIS 4088, 3 (2006) (citing 42 Pa.C.S. § 9771(c»);

Commonwealth v. Gheen, 455 Pa. Super. 499, 688 A.2d 1206, 1207 (1997». The sentencing

court is limited only by the maximum sentence it could have imposed at the time of the original

sentencing. Id. Pursuant to 204 Pa. Code 303 .1 (b), sentencing guidelines do not apply to

sentences imposed as a result of revocation of probation, intermediate punishment or parole.

Once probation or parole has been revoked, a sentence of total confinement may be imposed if

any of the following conditions exist: the defendant has been convicted of another crime; the

conduct of the defendant indicates that it is likely that he will commit another crime if he is not


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 Once probation or parole has been revoked, a sentence of total confinement may be imposed if

any of the following conditions exist: the defendant has been convicted of another crime; the

conduct of the defendant indicates that it is likely that he will commit another crime if he is not

imprisoned; or, such a sentence is essential to vindicate the authority of court. 42 Pa.C.S.A. §

9771 (c); Commonwealth v. Coolbaugh, 2001 PA Super. 77, 770 A.2d 788, 792 (2001).

       In the case at bar, a sentence of total confinement was appropriate because Defendant

was convicted of another crime and the sentence was necessary to vindicate the authority of the

Court. Defendant had been out on probation twice previously, and both times he quickly

absconded from supervision. In total, Defendant was in absconding status for almost eight years

and at no point during that time did he even attempt to remedy this status. Furthermore, during

the brief period Defendant was reporting to probation, he failed to comply with the terms of his

probation. He did not receive his G.E.D. when he was ordered to do so and he tested positive for

marijuana on multiple occasions. In addition, Defendant committed additional crimes and then

failed to appear in court for his 2009 drug possession charge. Consequently, there was a bench

warrant issued for his arrest, and over the next four years he took no steps to rectify his situation.

On June 16, 2014, once Defendant finally appeared for his 2009 drug possession charge, he was

found guilty. The record therefore shows that Defendant had a lengthy and habitual history of

defying the authority of not only this Court but every court in Philadelphia that he appeared

before since his first arrest in 1998. Indeed, this Court stated at Defendant's sentencing, "you

basically thumbed your nose at two other judges, well, three of us, three female judges, Judge

Rizzo, Judge Richette and me. That's basically what you did." (N.T. 6126/2014 p. 21). If

Defendant was not sentenced to confinement at the present hearing, there is every indication that

he once again would abscond from supervision and defy the authority of this Court. Thus, a



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manifestly excessive so as to inflict too severe a punishment'." Mouzon, 812 A.2d at 624-625

(quoting Commonwealth v. Person, 450 Pa. 1,297 A.2d 460 (1972». In addition, a sentence

will not be disturbed unless the appellate court determines that the sentence is "unreasonable."

Reasonableness is determined by examining the four statutory factors set forth in 42 Pa. C.S.A. §

9781(d) as well as the general sentencing standards outlined in 42 Pa. C.S.A. § 9721(b).

Commonwealth v. Walls, 592 Pa. 557,571,926 A.2d 957,965 (2007). 42 Pa. C.S.A. § 9781(d)

requires that the appellate court consider: "(1) [t]he nature and circumstances of the offense and

the history and characteristics of the defendant; (2) the opportunity of the sentencing court to

observe the defendant, including any presentence investigation; (3) the findings upon which the

sentence was based; and (4) the guidelines promulgated by the commission." 42 Pa. C.S.A. §

9721 (b) requires consideration of the protection of the public, the gravity of the offense in

relation to the impact on the victim and the community and the rehabilitative needs of the

defendant. There is no requirement that a sentencing court's imposition of sentence be the

"minimum possible confinement." Walls, 592 Pa. at 571, 926 A.2d at 965.

       The sentence imposed by this Court of 11 Yz to 23 months county incarceration was not

excessive, but was necessary to foster Defendant's rehabilitation. As this Court noted,

Defendant had a balance of 7 years left on each of his charges. (N.T. 6/2612014 p. 18).

Therefore, the terms imposed of 11 Yz to 23 months county incarceration, to run concurrently

with each other, were well within the sentencing authority of this Court. Furthermore, the

sentence imposed was reasonable in light of Defendant's rehabilitative needs. During his

previous times on probation and parole, Defendant failed to comply with the terms imposed by

the Court before absconding twice for lengthy periods of time. While Defendant claimed to have

received his G.E.D., he did not offer any proof. In addition, Defendant was in direct violation of



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his parole after being arrested and convicted of a new drug offense. Not only did Defendant

incur a new conviction for using drugs, but he continued to use marijuana even after being

arrested for possessing it and tested positive for marijuana on four separate occasions after his

arrest date. Defendant's conduct showed that he had a drug abuse problem, and his persistence

in using marijuana even after his arrest showed that he was unwilling or unable to address his

problem on his own. In consideration of Defendant's rehabilitative needs, this Court stipulated

him to serve his sentence at Hoffman Hall and ordered him to complete drug treatment, parenting

classes and anger management treatment while incarcerated there. This Court noted that

Hoffman Hall had strict rules about compliance with the programs Defendant was ordered to

take while incarcerated. Furthermore, this Court noted that Defendant was Recidivism Risk

Reduction Incentive (RRRI) eligible and therefore, if Defendant completed the programs

designed to foster his rehabilitation, he would be able to leave Hoffman Hall sooner. In

consideration of Defendant's prior history of failing to comply with the terms and conditions of

his prior sentences, as well as the direct violation of his parole, the sentence imposed by this

Court was reasonable in order to further Defendant's rehabilitation.




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                                            CONCLUSION

       After a review of the applicable statutes, case law and testimony, this Court committed no

error. This Court properly found Defendant in direct and technical violation of his probation and

sentenced him to 11 Yz to 23 months county incarceration. The sentence of total confinement

imposed by this Court was compliant with the factors set forth in 42 Pa.C.S.A. §9771(c) and was

not excessive. Therefore, this Court's decision should be upheld on appeal.




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