J-S46045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RALPH JOSEPH DEROGATIS,                  :
                                          :
                    Appellant.            :   No. 511 EDA 2018


         Appeal from the Judgment of Sentence, January 19, 2018,
          in the Court of Common Pleas of Northampton County,
           Criminal Division at No(s): CP-48-CR-0004103-2016.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                      FILED OCTOBER 23, 2018

      Ralph Joseph Derogatis appeals from the judgment of sentence imposed

after his Gagnon II hearing where the court found him in violation of his

probation. Derogatis’ counsel filed a petition to withdraw, in which he alleges

that this appeal is wholly frivolous. Agreeing with counsel’s assessment, we

grant his petition to withdraw and affirm Derogatis’ judgment of sentence.

      On November 19, 2016, Derogatis was arrested for driving under the

influence. Unable to post bail, Derogatis remained incarcerated from the time

of his arrest until the time of his hearing. On January 12, 2017, Derogatis

pleaded guilty, was sentenced to 7 days to 6 months incarceration, and was

immediately paroled. Derogatis failed to report to his probation officer on the

designated report dates. A petition for review of parole was filed on April 7,

2017, and the Gagnon I was hearing scheduled for May 1, 2017.             After
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Derogatis failed to appear for this hearing, the trial court issued a bench

warrant.

      Derogatis was detained in an adult correction center in New Brunswick,

New Jersey under a fugitive from justice warrant. The record fails to verify

the exact date Derogatis was taken into custody, however, it indicates that

Derogatis filed a brief on October 12, 2017, with the trial court in Northampton

County, Pennsylvania while incarcerated in New Jersey.             Derogatis was

delivered to the Northampton County Prison on December 20, 2017.

      A Gagnon I hearing was held on December 28, 2017. On January 2,

2018, Derogatis filed a pro se petition for writ of habeas corpus, which the

trial court treated as a PCRA petition. The trial court appointed current counsel

to represent Derogatis on this petition.       On January 12, 2018, Derogatis

withdrew his PCRA petition with prejudice.

      The court held the Gagnon II hearing on January 19, 2018. Derogatis’

parole officer testified that Derogatis violated his probation by failing to report.

The parole officer further testified that Derogatis had a detainer from Berks

County based on charges for felony retail theft and receiving stolen property,

which allegedly occurred in January 2017. The parole officer and the trial

court agreed that Derogatis’ probation should be removed and that he be

immediately paroled him to his detainer from Berks County.               Derogatis’

attorney did not oppose this recommendation.

      Accordingly, the trial court found Derogatis had violated his probation,

revoked his probation, and held him on his Berks County detainer. Derogatis

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is currently in Berks County Prison, serving time for the separate

aforementioned theft charges. Derogatis filed a timely post-sentence motion

for reconsideration, which the trial court denied.     On February 13, 2018,

Derogatis filed a timely notice of appeal from his Gagnon II sentence. On

February 14, 2018, Derogatis’ counsel filed a notice of intent to file an Anders

brief pursuant to Rule of Appellate Procedure 1925(c)(4). We address the

Anders brief first.

         “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).     In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court explained what must be included in an Anders

brief:

           [T]he Anders brief that accompanies court-appointed
           counsel’s petition to withdraw . . . 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.

         “While the Supreme Court in Santiago set forth the new requirements

for an Anders brief, which are quoted above, the holding did not abrogate the

notice requirements set forth in [Commonwealth v. Millisock, 873 A.2d

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748, 751 (Pa. Super. 2005)] that remain binding precedent.”      Daniels, 999

A.2d at 594. Thus, counsel seeking to withdraw on direct appeal must meet

the following obligations to his or her client:

         Counsel also must 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 addition to the points raised by counsel in the Anders
         brief.

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

omitted).

      Our review reveals that Derogatis’ counsel substantially complied with

the requirements of Anders and Santiago. “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”       Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (citation omitted).

Recently, this Court, in an en banc opinion, clarified that Anders requires the

reviewing court to examine the entire record to determine whether any

meritorious issues appear to exist or if the case is completely frivolous.

Commonwealth v. Dempster, 187 A.3d 266, 271-72(Pa. Super. 2018).

This Court stated:

            Although the Anders Court did not delineate the exact
         meaning of “full examination of all the proceedings,” the
         Pennsylvania Supreme Court recognized in Santiago, supra,
         that only “complete frivolity ... supports counsel's request

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        to withdraw and a court's order granting the request.” The
        Santiago Court further observed that Anders not only
        requires counsel to conduct an exhaustive examination of
        the record, but also “place[s] the responsibility on the
        reviewing court to make an independent determination of
        the merits of the appeal.”

            Further, this Court has stated that “part and parcel of
        Anders is our Court's duty to review the record to insure no
        issues of arguable merit have been missed or misstated.”
        This view comports with the main purpose of Anders, which
        is to make sure that an appellant is provided with adequate
        counsel as required by the Sixth Amendment of the U.S.
        Constitution. Ultimately, our Court's overriding task is to
        ensure that a criminal defendant's loss of liberty is reviewed
        with the gravity with which it is entitled. When counsel seeks
        to withdraw, Anders requires nothing less.

           In light of the constitutional rights at issue, we must give
        Anders a most generous reading and review “the case” as
        presented in the entire record with consideration first of
        issues raised by counsel. Contrary to the Dissenting Opinion
        in Flowers, supra, this review does not require this Court
        to act as counsel or otherwise advocate on behalf of a party.
        Rather, it requires us only 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.

Id. at 271-72.

     In his brief, counsel states Derogatis’ primary issue on appeal is whether

the court erred in imposing the sentence following his Gagnon II hearing.

Specifically, Derogatis claims that he should immediately be released from

prison because he has exceeded the maximum sentence – six months – for

his conviction in the Northampton County case.

     Relevant to this appeal, our scope of review from a judgment of

sentence following a probation revocation “is limited to the validity of the

revocation proceedings and the legality of the final judgment of sentence.”

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Commonwealth v. Williams, 662 A.2d 658, 659 (Pa. Super. 1995) (citation

omitted); see also Commonwealth v. Cartrette, 83 A.3d 1030, 1033-34

(Pa. Super. 2013) (holding that this Court’s scope of review in an appeal from

a revocation sentencing includes discretionary sentencing challenges). Our

review of the record does not support Derogatis’ claim that he has been

incarcerated for longer than his maximum sentence.

      42 Pa.C.S.A. §9760(1) computes the credit for time served, and

provides that:

         credit against the maximum term and any minimum term
         shall be given to the defendant for all time spent in custody
         as a result of the criminal charge for which a prison sentence
         is imposed or as a result of the conduct on which such a
         charge is based. Credit shall include credit for time spent in
         custody prior to trial, during trial, pending sentence, and
         pending the resolution of an appeal.

      The case docket indicates that Derogatis was first arrested on November

19, 2016, for DUI and remained in custody until his hearing on January 12,

2017. On that date, he pleaded guilty and was immediately paroled. As such,

he accumulated fifty-five (55) days in custody between his arrest date and his

hearing date. According to defense counsel, the only additional time Derogatis

served was from December 19, 2017, to January 23, 2018, when he was

transported back to Northampton County Prison, awaiting his Gagnon II

hearing, and then transferred to Berks County on their detainer for unrelated

charges. Defense counsel argues that “while such [total] time amounts to

approximately three months in prison, it does not equal or exceed Derogatis’



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original six-month maximum sentence for the Northampton County DUI

offense.” Anders Brief at 11.

     However, in the PCRA petition he withdrew, Derogatis alleged that he

had been incarcerated in New Jersey since September 2, 2017, based on a

fugitive from justice warrant until he was transferred back to Northampton

County on December 19, 2017. In this appeal, Derogatis offered no evidence

to substantiate his claim that his incarceration in New Jersey began on

September 2, 2017. However, the record reveals that on October 12, 2017,

Derogatis filed a pro se motion for dismissal of the fugitive from justice

warrant while incarcerated in New Jersey.     Although the record does not

confirm that Derogatis was detained in September, it does establish that

Derogatis was in custody at least from October 12, 2017, until he was

transferred back to Northampton County on December 19, 2017.

     As such, the total confirmed time Derogatis spent incarcerated in New

Jersey was 69 days and the total time he spent incarcerated in Northampton

County, after his transfer from New Jersey, was 35 days. Taking these days

together with the initial 55 days he spent in custody leading up to his first

hearing, the record shows Derogatis spent a total of 159 days incarcerated.

This time does not equal or exceed Derogatis’ original six-month maximum

sentence for the Northampton County DUI offense.

     Even if Derogatis could establish that his incarceration in New Jersey

began on September 2, 2017, which would demonstrate he exceeded his

maxiumum a sentence, he is currently in prison in Berks County for an

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unrelated matter.   The time Derogatis served for his DUI in Northampton

County has no bearing on his prison time relating to the separate case in Berks

County. Thus, even if Derogatis has served more than his maximum sentence,

any additional time served on Northampton County charges cannot be credited

to his Berks County sentence. Section 9760(2) explains when a court must

grant credit to a current sentence for time accumulated while in custody under

a prior sentence.

         Credit against the maximum term and any minimum term
         shall be given to the defendant for all time spent in custody
         under a prior sentence if he is later reprosecuted and
         resentenced . . . for another offense based on the same act
         or acts.

(emphasis added).

      Thus, the trial court cannot credit Derogatis with time he may have

unlawfully served for his DUI, because he is currently in custody based on

theft charges. The theft charges did not stem from the same criminal acts

that lead to his DUI conviction.

      In sum, our review of the record reveals the revocation proceeding was

valid and the sentence imposed was legal. Considering the evidence of record,

Derogatis has not substantiated his claim that he was, in fact, incarcerated

longer than his maximum sentence for his Northampton County charges. His

claim that he should be immediately released is without merit. We, therefore,

agree with counsel’s assessment that the issues raised by Derogatis are

frivolous. Furthermore, our independent review of the record reveals no other




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non-frivolous bases for this appeal. Dempster, supra. Thus, we conclude

this appeal is “wholly frivolous.”

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/18




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