J-S57024-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANDRE LAVONE JONES

                            Appellant               No. 1331 EDA 2017


         Appeal from the Judgment of Sentence dated March 17, 2017
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0006129-2010

BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                        FILED DECEMBER 22, 2017

        Appellant Andre Lavone Jones appeals from the judgment of sentence

imposed following a Gagnon II1 hearing, finding him in violation of the

terms of his probation and sentencing him to 18 to 36 months in prison.

With this appeal, Appellant’s counsel has filed a petition to withdraw and an

Anders2 brief, stating that the appeal is wholly frivolous.     After careful

review, we affirm that Appellant is not eligible to have his sentence

determined pursuant to the Recidivism Risk Reduction Incentive (“RRRI”)
____________________________________________
1  Gagnon v. Scarpelli, 411 U.S. 778 (1973) (discussing revocation
hearings).    “[W]hen a parolee or probationer is detained pending a
revocation hearing, due process requires a determination at a pre-revocation
hearing, a Gagnon I hearing, that probable cause exists to believe that a
violation has been committed. Where a finding of probable cause is made, a
second, more comprehensive hearing, a Gagnon II hearing, is required
before a final revocation decision can be made.”       Commonwealth v.
Allshouse, 969 A.2d 1236, 1240 (Pa. Super. 2009) (citations omitted).
2   Anders v. California, 386 U.S. 738 (1967).
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Act, 61 Pa.C.S. §§ 4501-4512.            But we deny the petition by Appellant’s

counsel to withdraw, and we order Appellant’s counsel to submit an

advocate’s brief or a new Anders brief within thirty days of the date of this

memorandum, as we have identified a potentially non-frivolous issue that we

discuss below. The Commonwealth may file a brief within thirty days after

service of the brief by Appellant’s counsel.

       On January 4, 2011, Appellant pleaded guilty in the Court of Common

Pleas of Delaware County to conspiracy to commit robbery.3              He was

sentenced to 11½ to 23 months’ imprisonment, followed by three years’

probation. On July 5, 2012, Appellant was found in violation of his parole4

and sentenced to 395 days’ confinement followed by three years’ probation.

On September 12, 2015, after Appellant was released on probation, he was

arrested in Philadelphia County for theft by unlawful taking, receiving stolen

property, carrying firearms without a license, and carrying firearms in

Philadelphia.5     Appellant pleaded guilty on January 5, 2017, to receiving

stolen property and carrying firearms without a license, and the other

charges were withdrawn.           He was sentenced to 2-4 years’ confinement

____________________________________________
3 18 Pa.C.S. § 903. Appellant also had been charged with robbery, but that
count was nolle prossed.
4 The certified record does not indicate when Appellant was released on
parole.
5 Docket Number CP-51-CR-0011081-2015. For the case that is the subject
of this appeal, Appellant was charged under the name Andre Lavone Jones.
For the Philadelphia case in which he was charged while on probation,
Appellant used the alias Andrew L. Jackson.

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followed by five years’ probation, and was held to be eligible to serve his

sentence in boot camp6 but ineligible for the RRRI program.

        On March 17, 2017, the Delaware County trial court held a Gagnon II

hearing, at which the court found that Appellant violated his probation. At

the hearing, Appellant’s counsel represented that, “as a result of the

conviction out of Philadelphia, they made a stipulation for him to be allowed

to be eligible to boot camp[.]”         N.T., 3/17/17, at 4. 7   Appellant’s counsel

then clarified:     “[Appellant’s] impression is that Philadelphia made him

eligible.”   Id. at 4-5.      Appellant’s counsel requested that the revocation


____________________________________________
6   “Motivational boot camp” is:

        A program in which eligible inmates participate for a period of six
        months in a humane program for motivational boot camp
        programs which shall provide for rigorous physical activity,
        intensive regimentation and discipline, work on public projects,
        substance abuse treatment services licensed by the Department
        of Health, continuing education, vocational training, prerelease
        counseling and community corrections aftercare.

61 Pa.C.S. § 3903. Section 3904(b) requires the sentencing judge to —

        employ the sentencing guidelines to identify those defendants
        who are eligible for participation in a motivational boot camp.
        The judge shall have the discretion to exclude a defendant from
        eligibility if the judge determines that the defendant would be
        inappropriate for placement in a motivational boot camp. The
        judge shall note on the sentencing order whether the defendant
        has been identified as eligible for a motivational boot camp
        program.

Id. § 3904(b).
7 The notes of testimony for the Philadelphia guilty plea hearing are not in
the certified record for the instant case.

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court “put something in there that would make him still eligible for boot

camp so he wouldn’t lose that – the access to that.” Id. at 4.

      After the court replied that Appellant was “ineligible for boot camp,”

the Commonwealth added: “Philadelphia could waive it, Your Honor, could

waive that ineligibility, but under the strict guidelines of” the RRRI Act,

Appellant is ineligible “unless the Commonwealth waived it [in the Delaware

County case], which we are not.”     N.T., 3/17/17, at 4-5.      The revocation

court responded:

      I’m reading all the boot camp guidelines, and it says the Judge
      must indicate in sentencing order that to be considered for boot
      camp, you need to apply, but the Department of Corrections
      makes the final determination. However, it’s my reading of the
      Information that with these prior charges and the fact that your
      original case here is Criminal Conspiracy to Robbery, that they’re
      not going to – they’re not going to accept you. You’re not
      eligible, and they’re not going to accept you for boot camp
      anyhow based on what you have.

Id. at 5-6.

      The revocation court ultimately found Appellant ineligible for RRRI,

because conspiracy to commit robbery is a crime ineligible for an RRRI

sentence under 61 Pa.C.S. § 4503.       N.T., 3/17/17, at 4–7.       The court

sentenced Appellant to a period of 18 to 36 months of incarceration,

consecutive to Appellant’s sentence for his Philadelphia convictions. Cert. of

Sentencing, 3/17/17, at 1. Appellant did not file a post-sentence motion.

      Appellant timely appealed, and, on April 27, 2017, Appellant’s counsel

filed a statement of intent to file an Anders brief. He subsequently filed an

Anders brief on July 10, 2017, stating that the appeal was wholly frivolous.

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Appellant’s counsel also filed a petition to withdraw with this Court.

Appellant did not file a pro se response.         In the Anders brief, counsel

presents one issue for review:

      Did the trial court err in specifying that [Appellant] did not
      qualify for a RRRI program and could not serve his sentence in a
      boot camp program?

Anders Brief at 3.

      “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) (internal citation omitted).        An Anders brief shall comply with the

requirements    set   forth   by    the   Supreme   Court   of   Pennsylvania   in

Commonwealth v. Santiago, 978 A.2d 349, 361 (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 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. Counsel seeking to withdraw on direct appeal must meet the following

obligations to his or her client:

      Counsel must also 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 the
      Anders brief.

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

quotation marks and citation omitted). Finally, “this Court must conduct an

independent review of the record to discern if there are any additional, non-

frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa. Super. 2015) (footnotes and citations omitted).

      Counsel’s Anders brief complies with the requirements of Santiago

and Orellana with respect to Appellant’s RRRI issue.      Appellant’s counsel

provided Appellant with a copy of the Anders brief, which also advised him

of his right to retain new counsel or to proceed pro se on appeal to raise any

points he deems worthy of the court’s attention. The Anders brief provides

a procedural and factual summary of the case with citations to the record.

The brief includes arguments that could support Appellant’s contention that

he should have been found eligible for a RRRI program and cites legal

authority to support the conclusion that this argument is frivolous. Thus, we

conclude that Appellant’s counsel has complied with the requirements of

Santiago and Orellana with respect to the RRRI issue.

      Appellant contends the trial court erred by concluding he was not

eligible for RRRI.   Anders Brief at 7-8.      “The question of whether a

defendant is RRRI eligible presents a question of statutory construction and

implicates the legality of the sentence imposed.”        Commonwealth v.

Quiles, 166 A.3d 387, 392 (Pa. Super. 2017) (quotation marks and citation

omitted). Accordingly, our standard of review is de novo and our scope of


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review is plenary. Commonwealth v. Chester, 101 A.3d 56, 60 (Pa. 2014)

(RRRI eligibility “concerns a matter of statutory interpretation and is . . . a

pure question of law . . .”).

       When the question [is] one of statutory interpretation, our scope
       of review is plenary and the standard of review is de novo.
       Under the Statutory Construction Act of 1972, our paramount
       interpretative task is to give effect to the intent of our General
       Assembly in enacting the particular legislation under review. We
       are mindful that the object of all statutory interpretation is to
       ascertain and effectuate the intention of the General Assembly
       and the best indication of the legislature’s intent is the plain
       language of the statute. When the words of a statute are clear
       and unambiguous, we may not go beyond the plain meaning of
       the language of the statute under the pretext of pursuing its
       spirit.  However, only when the words of the statute are
       ambiguous should a reviewing court seek to ascertain the intent
       of the General Assembly through considerations of the various
       factors found in Section 1921(c) of the [Statutory Construction
       Act, 1 Pa. C.S. § 1921(c)].

Commonwealth v. Grove, 170 A.3d 1127, 1141-42 (Pa. Super. 2017)

(ellipses and citation omitted).

       The RRRI statute establishes an evidence-based treatment program

for   eligible    criminal inmates that is designed to     reduce   recidivism.

Commonwealth v. Robinson, 7 A.3d 868, 872 (Pa. Super. 2010).                The

statute defines an “eligible offender” who may take part in the program as:

       A defendant or inmate convicted of a criminal offense who will be
       committed to the custody of the department and who meets all
       of the following eligibility requirements:

                 ...

          (3) Has not been found guilty of or previously convicted of
          or adjudicated delinquent for or an attempt or conspiracy to
          commit a personal injury crime as defined under section
          103 of the act of November 24, 1998 (P. L. 882, No. 111),

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         known as the Crime Victims Act, except for an offense under
         18 Pa.C.S. § 2701 (relating to simple assault) when the
         offense is a misdemeanor of the third degree, or an
         equivalent offense under the laws of the United States or one
         of its territories or possessions, another state, the District of
         Columbia, the Commonwealth of Puerto Rico or a foreign
         nation.

61 Pa.C.S. § 4503 (emphasis added). Section 103 of the Crime Victims Act,

18 P.S. § 11.103, defines a “personal injury crime” to include “[a]n act,

attempt or threat to commit an act which would constitute a misdemeanor

or felony under . . . 18 Pa.C.S. Ch. 37 (relating to robbery).”        Appellant’s

underlying conviction was for conspiracy to commit robbery, and thus falls

directly within the list of crimes that makes Appellant ineligible for the RRRI

program.

      If an offender is deemed ineligible for an RRRI sentence, the offender

may obtain a waiver of eligibility from the prosecuting attorney:

      The prosecuting attorney, in the prosecuting attorney’s sole
      discretion, may advise the court that the Commonwealth has
      elected to waive the eligibility requirements of this chapter if
      the victim has been given notice of the prosecuting attorney’s
      intent to waive the eligibility requirements and an opportunity to
      be heard on the issue. The court, after considering victim input,
      may refuse to accept the prosecuting attorney’s waiver of the
      eligibility requirements.

61 Pa.C.S. § 4505(b) (emphasis added).         The statute provides that the

prosecuting   attorney   has   the   sole   discretion    to   waive     eligibility

requirements. At Appellant’s Gagnon II hearing, the Commonwealth stated

that it was exercising its discretion not to waive the eligibility requirements

for Appellant. N.T., 3/17/17, at 5. Appellant notes that the prosecutor in


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the Philadelphia case in which Appellant was convicted while on parole

agreed to waive Appellant’s ineligibility for the RRRI program, and he

suggests that the prosecutor in this action should have done the same.

Counsel’s Anders brief correctly points out, however, that the mere fact that

the Philadelphia prosecutor agreed to waive ineligibility in that case confers

no right on Appellant to a similar waiver with respect to his Delaware County

conviction. See 61 Pa. C.S. § 4511. We perceive no abuse of discretion by

the Delaware County prosecutor in declining to waive Appellant’s ineligibility,

and we therefore agree that Appellant’s appeal regarding the RRRI program

is without merit.

      Although counsel’s Anders brief also raises the issue whether the trial

court erred in holding that Appellant did not qualify for a boot camp

program, counsel’s brief does not further address that issue. See Anders

Brief at 3, 7-8.    We are required to conduct an independent review to

ascertain whether the appeal is indeed wholly frivolous, Flowers, 113 A.3d

at 1250, and we conclude that this is a non-frivolous issue that requires

further briefing.

      Motivational Boot Camp and RRRI are innovative programs established

under separate chapters of the Prisons and Parole Code.      See 61 Pa. C.S.

Ch. 39 (motivational boot camp); id. Ch. 45 (RRRI). While both programs

were established with the goal of alleviating prison overcrowding through

use of alternative methods of incarceration, the Motivational Boot Camp



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program also is designed “to salvage the contributions and dedicated work

which its displaced citizens may someday offer.” Id. § 3902(3).

     The Motivational Boot Camp provisions define an “[e]ligible inmate”

who may participate in the program as follows:

     A person sentenced to a term of confinement under the
     jurisdiction of the Department of Corrections who is serving a
     term of confinement, the minimum of which is not more than
     two years and the maximum of which is five years or less, or an
     inmate who is serving a term of confinement, the minimum of
     which is not more than three years where that inmate is within
     two years of completing his minimum term, and who has not
     reached 40 years of age at the time he is approved for
     participation in the motivational boot camp program. The term
     shall not include any inmate who is subject to a sentence the
     calculation of which included an enhancement for the use of a
     deadly weapon as defined pursuant to the sentencing guidelines
     promulgated by the Pennsylvania Commission on Sentencing,
     any inmate who has been convicted or adjudicated delinquent of
     any crime requiring registration under 42 Pa.C.S. Ch. 97 Subch.
     H (relating to registration of sexual offenders) or any inmate
     with a current conviction or a prior conviction within the past ten
     years for any of the following offenses:

        18 Pa.C.S. § 2502 (relating to murder).

        18 Pa.C.S. § 2503 (relating to voluntary manslaughter).

        18 Pa.C.S. § 2506 (relating to drug delivery resulting in
        death).

        18 Pa.C.S. § 2901(a) (relating to kidnapping).

        18 Pa.C.S. § 3301(a)(1)(i) (relating to arson and related
        offenses).

        18 Pa.C.S. § 3502 (relating to burglary) in the case of
        burglary    of  a  structure  adapted    for  overnight
        accommodation in which at the time of the offense any
        person is present.



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          18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to
          robbery).

          18 Pa.C.S. § 3702 (relating to robbery of motor vehicle).

          18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii) or (4)(iii)
          (relating to drug trafficking sentencing and penalties).

61 Pa. C.S. § 3903. This definition of “[e]ligible inmate” is not the same as

Section 4503’s definition of an “eligible offender” for purposes of the RRRI

program. In particular, while the commission of certain crimes of robbery

disqualify an inmate from participating in the Boot Camp program, there is

no specific mention of the crime of conspiracy to commit robbery. Because

the eligibility requirements for Motivational Boot Camp and for RRRI are not

identical, the analysis of Appellant’s RRRI eligibility in the Anders brief does

not also serve as an examination of Appellant’s potential eligibility for the

Motivational Boot Camp program.

       As we perceive a possible non-frivolous issue, we deny counsel’s

petition to withdraw and order counsel to submit either an advocate’s brief

or a new Anders brief within thirty days of the date of this memorandum.

Counsel may raise any other non-frivolous issues he has identified.         The

Commonwealth may file a brief within thirty days of service of the brief by

Appellant’s counsel.8




____________________________________________
8  If the Commonwealth does not intend to file a brief in response, we
request that the Commonwealth send a letter to this Court’s Prothonotary
informing this Court of that decision as soon as possible.

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      Petition to withdraw denied.     Appellant’s counsel ordered to file an

advocate’s brief or a new Anders brief within thirty days of the date of this

memorandum.      The Commonwealth may file a brief within thirty days of

Appellant’s counsel’s brief. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




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