J-S57020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MARCO MANUEL MARIN                         :
                                               :
                       Appellant               :     No. 1303 EDA 2018


             Appeal from the Judgment of Sentence March 29, 2018
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0003867-2016


BEFORE:      PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.:                            FILED NOVEMBER 09, 2018

        Appellant, Marco Manuel Marin, appeals from the judgment of sentence

imposed following revocation of his parole.         Appellant’s counsel seeks to

withdraw her representation pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

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

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

April 25, 2017, Appellant entered a guilty plea to simple assault and criminal

mischief.1 The charges stem from Appellant’s assault on his then-girlfriend,

during which he struck her in the back of the head, grabbed her by the arms,

and attempted to choke her. On the same day Appellant entered his plea, the

trial court sentenced him to a term of not less than six nor more than twenty-
____________________________________________


1   18 Pa.C.S.A. §§ 2701(a)(1) and 3304(a)(5), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S57020-18



three months’ imprisonment on the simple assault charge, followed by one

year of probation on the criminal mischief charge. Appellant did not appeal

the judgment of sentence. He was paroled on September 5, 2017. A bench

warrant was issued for a violation of parole on October 2, 2017, based on new

criminal offenses, relating to domestic violence and drugs.

      The trial court held a violation hearing on March 29, 2018. It revoked

Appellant’s parole, and ordered him to serve the balance of his maximum

sentence on the simple assault charge, i.e., seventeen months and thirteen

days, with instructions to close the case after his parole.     (See Violation

Sentencing Sheet, 3/29/18). Appellant timely appealed.

      On May 15, 2018, in response to the trial court’s concise statement

order, counsel filed a statement of intent to file an Anders Brief.         See

Pa.R.A.P. 1925(c)(4). The trial court entered a Rule 1925(a) statement on

May 29, 2018. See Pa.R.A.P. 1925(a). Counsel filed her petition for leave to

withdraw and Anders brief on July 13, 2018.

            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. Before counsel is permitted to withdraw,
      he or she must meet the following requirements:

                  First, counsel must petition the court for leave
            to withdraw and state that after making a
            conscientious examination of the record, he has
            determined that the appeal is frivolous; second, he
            must file a brief referring to any issues in the record
            of arguable merit; and third, he must furnish a copy
            of the brief to the defendant and advise him of his
            right to retain new counsel or to himself raise any



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           additional points he deems worthy of the Superior
           Court’s attention.

     Santiago, [supra] at 361.

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016)

(some citations and footnote omitted).

     The Anders brief 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, supra at 361.

     In the instant case, counsel has submitted to this Court an Anders brief

in which she summarized the history of the case, referred to issues in the

record that she believed arguably supported the appeal, and set forth her

conclusion that the appeal is frivolous, along with citation to supporting

authority. Counsel has also provided a copy of the letter that she sent to

Appellant informing him of his right to retain new counsel or proceed pro se,

to raise any points he deems worthy of this Court’s consideration.

Accordingly, we conclude counsel has complied with the requirements of

Anders and Santiago. We, therefore, turn to the issue raised in the Anders

brief and make an independent determination as to whether the appeal is, in

fact, “wholly frivolous.” Bynum–Hamilton, supra at 184 (citation omitted).

     The Anders brief raises the following issue for our review:


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     Does the imposition of a seventeen (17) month thirteen (13) day
     confinement sentence for parole revocation in a simple assault
     case raise a substantial question that the Sentencing Code was
     violated by the sentencing court which imposed the sentences
     after a decision that Appellant failed to meet terms of the court’s
     probation supervision when Appellant was convicted of new
     assault charges and attempting to bring contraband narcotics into
     the Delaware prison? Are such revocation sentences an abuse of
     the sentencing court’s discretion?

(Anders Brief, at 5) (commentary and some capitalization omitted).

     Appellant’s claim challenges the discretionary aspects of his sentence.

However, this is not a proper argument following a parole revocation. See

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008).

           . . . 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 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. The Commonwealth must prove the
     violation by a preponderance of the evidence and, once it does so,
     the decision to revoke parole is a matter for the court’s discretion.
     In the exercise of that discretion, a conviction for a new crime is
     a legally sufficient basis to revoke parole.

           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.



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            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.

Id. at 290-91 (citations and footnote omitted) (emphasis added).

      Here, as noted, Appellant seeks to challenge the discretionary aspects

of his sentence by arguing that his sentence is manifestly excessive and

constitutes too severe a punishment.         (See Anders Brief, at 10-11).

However, because Appellant has no right to raise a discretionary aspects claim

in the context of a parole revocation proceeding, it is frivolous. See Kalichak,

supra at 290-93.

      Moreover, while Appellant could have challenged the propriety of the

court’s exercise of discretion in revoking parole, see id. at 293, Appellant did

not preserve such claim by objection during the revocation proceedings or by

motion thereafter.    See Pa.R.Crim.P. 708(E); Pa.R.A.P. 302(a).        To the

contrary, defense counsel expressly stated: “[M]y client would like to ask for

the parol[e] is going to be revoked [sic].    Obviously, he can’t contest the

underlying violation, the sentence to the balance of the maximum, 17 months,

13 days[.]”   (N.T. Hearing, 3/29/18, at 8); see also id. at 17 (Appellant

asking court to “max out” sentence and close out case without further

supervision). Therefore, any such claim would be frivolous to raise on appeal.



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      Finally, a challenge to the trial court’s ruling to revoke Appellant’s parole

and recommit him would be frivolous. The trial court explained its decision as

follows:

            [In this case] you got six months, struck [the victim] on the
      back of the head. She tried to fight back. You attempted to choke
      her. She basically groped forward, ran to [the police station].
      They say she had marks on her arm and throat, consistent with
      her statement. Then I have 17 days later, the new case . . . you
      got basically [the victim] with a group of kids all corroborating
      that you have assaulted her 17 days later. So you have two
      domestic assaults shortly after getting out of prison. [You] have,
      approximately, . . . 19 or 20 convictions over the years. I have
      you sneaking some sort of drugs in the prison. Your conduct in
      prison isn’t good. . . . All you have done is commit new crimes
      and the concern I have is the nature of the crimes. You are lucky
      someone has not been seriously hurt. . . .

                                   *    *    *

      . . . You have been basically in and out of jail and police stations
      your entire life. . . . When you get mad, you’re taking it out—
      you’re grabbing the mother of your children by her hair in front of
      the kids. They’re talking about it with the police. They’re
      describing I saw dad grab mom by the hair and hit her. . . . [Y]ou
      have pretty much checked every box scaring me about what you
      can do some day and what you have done.

                                   *    *    *

      . . . Even in prison, you’re still committing crimes. That’s a
      problem. That’s a planned design to get around dealing with the
      drug problem. You’re sneaking drugs in the prison. . . .

                                   *    *    *

      . . . [P]robation has been a complete and total disaster; parol[e]
      and probation. You just can’t go out within 17 days and commit
      a new crime of violence when you are in front of me on a crime of
      violence and commit a drug offense. . . .



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(N.T. Hearing, at 10-11, 13-15).

     Our review of the record confirms that the trial court properly revoked

Appellant’s parole and recommitted him to confinement.       See Kalichak,

supra at 290-91. Furthermore, after independent review, we determine that

there are no other non-frivolous bases for appeal, and this appeal is “wholly

frivolous.” Bynum–Hamilton, supra at 184 (citation omitted). Therefore,

we affirm the judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/18




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