J-S06008-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FELICIA ANN MELLOR                         :
                                               :
                       Appellant               :   No. 1866 EDA 2019

          Appeal from the Judgment of Sentence Entered June 5, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002882-2017


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                Filed: March 23, 2020

       Felicia Ann Mellor appeals from the judgment of sentence, entered in

the Court of Common Pleas of Delaware County, following revocation of her

parole and recommitment to back time of 533 days with parole upon

completion of a Prep 2 drug and alcohol program. Mellor claims her sentence

is excessive.    Counsel has filed a petition to withdraw and a brief pursuant to

Anders/Santiago.1 After our review, we conclude Mellor’s argument that her

sentence is excessive cannot be addressed in the context of a review of a

parole revocation, and, therefore, is wholly frivolous. Accordingly, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.
____________________________________________


1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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        On September 11, 2017, Mellor entered a negotiated guilty plea to

driving under the influence, 75 Pa.C.S.A. § 3731, graded as misdemeanor of

the first degree. On that same date, the court sentenced Mellor to time served

to 23 months’ incarceration and granted Mellor immediate parole with

conditions. On June 5, 2019, at a Gagnon II2 hearing, the court found Mellor

in violation of parole.3 N.T. Gagnon II Hearing, 6/5/19, at 12. The court,

upon recommendation of Mellor’s parole officer, to whom the Commonwealth

deferred, sentenced Mellor to full back time of 533 days, to be “immediately

paroled upon successful completion of Prep 2 to her Pennsylvania address.”

Id.    Mellor filed a motion for reconsideration, which was denied, and this

timely appeal followed.

        As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders and Santiago. Pursuant to Anders and

Santiago, counsel is required to:

        1) petition the Court for leave to withdraw, certifying that after a
        thorough review of the record, counsel has concluded the issues
        to be raised are wholly frivolous; 2) file a brief referring to
        anything in the record that might arguably support the appeal;
        and 3) furnish a copy of the brief to the appellant and advise him
        of his right to obtain new counsel or file a pro se brief to raise any
        additional points the appellant deems worthy of review.


____________________________________________


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

3Mellor conceded she had violated parole. N.T. Gagnon II Hearing, 6/5/19,
at 3-4.



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Santiago, supra at 358-61; Commonwealth v. Hernandez, 783 A.2d 784,

786 (Pa. Super. 2001).

        Counsel’s petition to withdraw indicates that he sent a copy of the

Anders brief to Mellor, along with a letter advising her of her right to proceed

pro se or with new, privately retained counsel.              Petition to Withdraw,

11/22/19, at ¶¶ 5-6.4       Moreover, counsel’s brief substantially complies with

the requirements of Anders/Santiago. Counsel includes a summary of the

relevant factual and procedural history, refers to the portions of the record

and relevant legal authorities that could arguably support Mellor’s claim, and

concludes that, after a thorough review of the record, the appeal is wholly

frivolous. Accordingly, we conclude that counsel has met the technical

requirements of Anders and Santiago, and we can now undertake our review

to determine whether the claim is wholly frivolous.

        Counsel’s Anders brief raises one issue of arguable merit: “Whether

the term imposed herein is harsh and excessive under the circumstances due

to the condition that Mellor could only be paroled from incarceration after

completion of [the] Prep 2 Program, necessitating two more months of

incarceration until the program even begins.”      Anders Brief, at 3.

        Initially, we observe:

        Unlike a probation revocation, a parole revocation does not
        involve the imposition of a new sentence. Indeed, there is no
        authority for a parole-revocation court to impose a new penalty.
        Rather, the only option for a court that decides to revoke parole
____________________________________________


4   Mellor has not filed a response to counsel’s petition.

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       is to recommit the defendant to serve the already-imposed,
       original sentence. At some point thereafter, the defendant may
       again be paroled. 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.

       Following parole revocation and recommitment, the proper issue
       on appeal is whether the revocation court erred, as a matter of
       law, in deciding to revoke parole and, therefore, to recommit the
       defendant to confinement. Accordingly, an appeal of a parole
       revocation is not an appeal of the discretionary aspects of
       sentence. As such, a defendant appealing recommitment
       cannot contend, for example, that the sentence is harsh
       and excessive. Such a claim might implicate discretionary
       sentencing but it is improper in a parole-revocation appeal.
       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.      Challenges of those types again implicate the
       discretionary aspects of the underlying sentence, not the legal
       propriety of revoking parole.

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)

(internal citations omitted) (emphasis added).

       Here, as noted above, Mellor is not challenging the revocation of her

parole.5   Rather, she is challenging the court’s recommitment order. That

order, requiring her to serve her full back time (522 days), made her eligible


____________________________________________


5 As noted, Mellor admitted to her parole violations. See n.3, supra. After
the court found Mellor had violated parole, it had one sentencing option–to
recommit Mellor to serve the already-imposed, original sentence. See
Kalichak, supra. See also Commonwealth v. Ware, 737 A.2d 251, 253
(Pa. Super. 1999) (reaffirming that “upon revocation of parole, the only
sentencing option available is recommitment to serve the balance of the term
initially imposed”).

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for parole upon completion of the Prep 2 Program; however, there was a two

and one-half month wait for the start of that program.                The court

acknowledged this, stating: “I wish the Prep 2 Program started a week from

now instead of August 13 . . . but I can’t control that.” N.T. Gagnon II Hearing,

supra at 10. In this regard, Mellor argues her sentence is “excessive.”

       Under our reasoning in Kalichak, Mellor cannot challenge the length of

incarceration imposed by the court. That case also precludes Mellor’s claim

that she is somehow entitled to accelerated parole.6 After an independent

review of the record, we agree with counsel’s assessment that Mellor’s appeal
____________________________________________


6 At the time of recommitment, Mellor was enrolled in the Prep 1 Program,
had two weeks left in that program, and was required to complete that before
commencing Prep 2. N.T. Gagnon II Hearing, supra at 11. Notably, Mellor’s
parole officer testified as to why the Prep 2 Program was critical in Mellor’s
case:

       Your Honor, [Mellor] was in an intensive outpatient program
       before she quit going[,] which is why we recommended Prep 2.
       That will ensure that she actually successfully completes the
       program. As far as the no narcotic medications, that comes from
       the Director of the Mental Health Unit, Mary Ellen Hoffman[,]
       because [Mellor] has had a history of abusing prescription
       medications and narcotics in the past, that is why I was directed
       to include that in my recommendation. I – we don’t have any
       objection to her going to her psychiatrist and she can be
       prescribed mental health medications that aren’t narcotics.

Id. at 8-9. The Prep 2 Program, which commenced August 13, 2019 and
continued for twelve weeks, theoretically concluded in November 2019. This
Court has not been notified that Mellor successfully completed the program
and has been paroled. We note that the court’s June 5, 2019 recommitment
to 522 days brings the completion date of Mellor’s sentence to December
2020.




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is wholly frivolous.   See Kalichak, supra; see also Commonwealth v.

Galletta, 864 A.2d 532 (Pa. Super. 2004) (claim of excessive sentence cannot

be addressed in context of review of parole revocation). We, therefore, affirm

the judgment of sentence and grant counsel’s request to withdraw.

      Judgment of sentence affirmed. Motion to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:3/23/20




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