J-S18004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIFFANI LEE TELLER                         :
                                               :
                       Appellant               :   No. 1651 MDA 2019


      Appeal from the Judgment of Sentence Entered September 5, 2019,
               in the Court of Common Pleas of Luzerne County,
             Criminal Division at No(s): CP-40-CR-0002478-2018.

BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 09, 2020

        Tiffani Lee Teller appeals from the judgment of sentence imposed

following the revocation of her probation.           Additionally, Teller’s court-

appointed counsel, Matthew P. Kelly, Esquire, has filed a petition to withdraw

as counsel and an accompanying brief pursuant to Anders v. California, 386

U.S. 738 (1967).        We grant Attorney Kelly’s petition, and affirm Teller’s

judgment of sentence.

        On December 7, 2018, Teller entered guilty pleas to one count each of

retail theft and possession of a controlled substance.1           The trial court




____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 3921(a)(I), 35 Pa.C.S.A. § 780-113(a)(16).
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sentenced her to serve nine months of probation on each count, to be served

concurrently. Teller did not file a post-sentence motion or a direct appeal.

        Thereafter, the Luzerne County Department of Adult Probation and

Parole subsequently filed a petition to revoke Teller’s probation based on

alleged violations of the conditions of probation. On September 5, 2019, the

violation of probation (“VOP”) court conducted a hearing on the petition.

During the hearing, Teller admitted that she violated the terms of her

probation. The VOP court resentenced her to serve seventy-five days to nine

months in prison on each count, to be served concurrently.       Teller filed a

timely notice of appeal. The VOP court appointed Attorney Kelly as Teller’s

appellate counsel.   Both Teller and the VOP court complied with Pa.R.A.P.

1925.

        In this Court, Attorney Kelly has filed a petition to withdraw from

representation and an Anders Brief.     Teller did not file a response to the

petition or the Anders brief.

        “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. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, counsel must do the

following:

        (1) petition the court for leave to withdraw stating that after
        making a conscientious examination of the record, counsel has

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      determined the appeal would be frivolous; (2) file a brief referring
      to any issues that might arguably support the appeal, but which
      does not resemble a no-merit letter; and (3) furnish a copy of the
      brief to the defendant and advise h[er] of h[er] right to retain new
      counsel, proceed pro se, or raise any additional points [s]he
      deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders, i.e.,

the contents of an Anders brief, and required that the brief:

      (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.          Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to conduct a simple review

of the record to ascertain if there appear on its face to be arguably meritorious

issues   that   counsel,   intentionally   or   not,   missed   or   misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

      Here, Attorney Kelly has complied with each of the requirements of

Anders. Attorney Kelly indicates that he conscientiously examined the record

and determined that an appeal would be frivolous. Further, Attorney Kelly’s


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Anders brief substantially comports with the requirements set forth by the

Supreme Court of Pennsylvania in Santiago. Finally, the record includes a

copy of the letter that Attorney Kelly sent to Teller, advising her of her right

to proceed pro se or retain alternate counsel and file additional claims, and

stating Attorney Kelly’s intention to seek permission to withdraw. Accordingly,

Attorney Kelly has complied with the procedural requirements for withdrawing

from representation, and we will conduct an independent review to determine

whether Teller’s appeal is wholly frivolous.

         In the Anders Brief, Attorney Kelly raises two issues for our review:

   I.      Whether being resentenced on a probation violation constitutes
           double jeopardy.

   II.     Whether trial counsel was ineffective in coercing her into an
           involuntary plea.

Anders Brief at 1.

         The first issue raised in the Anders brief presents a constitutional

challenge to the VOP court’s sentence on the basis that it violates the double

jeopardy clauses of the United States Constitution and the Pennsylvania

Constitution. Attorney Kelly concluded that the issue is frivolous because a

VOP sentence is not a second punishment for the original offense, but rather

an integral element of the original sentence.        Anders Brief at 6 (citing

Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007)). We agree.

         Generally, in reviewing an appeal from a judgment of sentence imposed

after the revocation of probation, this Court’s scope of review includes the


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validity of the hearing, the legality of the final sentence, and if properly raised,

the discretionary aspects of the appellant’s sentence. See Commonwealth

v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010). However, the question

of whether a defendant’s constitutional right against double jeopardy was

infringed is a question of law. Id. Hence, our scope of review is plenary and

our standard of review is de novo. Id.

      Our Supreme Court has explained that a VOP hearing “differs from a

trial, as probation and parole are not part of the criminal prosecution; the full

panoply of rights due a defendant in a criminal trial does not apply at a VOP

hearing.” Mullins, 918 A.2d at 85. Indeed, the standards for a violation of

probation hearing are distinctly different from a trial, as a VOP hearing “takes

place without a jury, with a lower burden of proof, and with fewer due process

protections.” Id. Therefore, “[r]evocation of probation and resentencing does

not implicate double jeopardy precisely because ‘revocation is not a second

punishment for the original conviction, but rather is an integral element of the

original conditional sentence.’” Commonwealth v. Johnson, 967 A.2d 1001,

1005 (Pa. Super. 2009) (quoting Mullins, supra at 85).

      As Teller’s VOP sentence does not violate the double jeopardy clauses

of the United States Constitution or the Pennsylvania Constitution, we agree

with Attorney Kelly that the first issue raised in the Anders brief is frivolous.

      The second issue raised in the Anders brief presents a claim that “trial

counsel was ineffective in coercing [Teller] into an involuntary plea.” Anders


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Brief at 6.   Attorney Kelly concluded that this issue was frivolous because

claims of ineffective assistance of counsel are generally not reviewed upon

direct appeal, and are to be deferred to collateral review under the Post

Conviction Relief Act (“PCRA”). Id. (citing Commonwealth v. Holmes, 79

A.3d 562 (Pa. 2013)).        Once again, we agree with Attorney Kelly’s

determination.

      Litigation of ineffectiveness claims is not generally a proper component

of a defendant’s direct appeal, and is presumptively deferred for collateral

attack under the PCRA. See Holmes, 79 A.3d at 578 (establishing a deferral

rule for ineffectiveness claims litigated after its decision in Commonwealth

v. Grant, 813 A.2d 726 (Pa. 2002)). While the Pennsylvania Supreme Court

has recognized limited exceptions to the rule that ineffectiveness claims

should be deferred until collateral review, we find nothing in the record

suggesting that Teller’s ineffectiveness claim falls within any exception to the

rule that such a claim should be deferred until collateral review. See Holmes,

79 A.3d at 563-54; see also Commonwealth v. Delgros, 183 A.3d 352 (Pa.

2018).    For this reason, we decline to address the merits of Teller’s

ineffectiveness claim, without prejudice for her to raise the claim on collateral

review before the PCRA court.

      Finally, as required by Anders, we have independently reviewed the

record in order to determine whether there are any non-frivolous issues

present in this case. Our independent review of the record discloses no other


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non-frivolous issues that Teller could raise that her counsel overlooked. See

Dempster, supra.

     Having concluded that there are no meritorious issues, we grant

Attorney Kelly’s petition to withdraw as counsel, and affirm the judgment of

sentence.

     Petition to withdraw granted. Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/09/2020




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