J-S46019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRANDEN T. GILMORE

                            Appellant                 No. 1916 MDA 2013


         Appeal from the Judgment of Sentence September 30, 2013
              In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0001071-2004,
            CP-22-CR-0001072-2004, CP-22-CR-0001073-2004,
            CP-22-CR-0001083-2004, CP-22-CR-0001394-2004
                          CP-22-CR-0002044-2044


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                           FILED AUGUST 21, 2014

       Branden T. Gilmore appeals from his judgment of sentence imposed in

the Court of Common Pleas of Dauphin County after his parole was revoked.

Counsel has filed a petition to withdraw pursuant to Anders, McClendon

and Santiago.1 Upon review, we affirm Gil



       [Gilmore] had been on state parole following a period of
       incarceration . . . lasting just under five (5) years after pleading


____________________________________________


1
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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        guilty [to five counts of robbery2 and one count of escape3].
        [Gilmore] had been released for parole on December 3, 2009.

        While on parole, [Gilmore] was arrested on October 18, 2011
        and charged with two counts of [p]ossession with [i]ntent to
        [d]eliver, one count of [c]riminal [u]se of a [c]ommunications
        [f]acility, and one count of [u]nlawful [p]ossession of [d]rug
        [p]araphernalia. On November 5, 2012, Gilmore entered a plea
        of guilty to all charges and, on the same day, was sentenced to a
        term of twelve (12) to twenty-
        followed by two years of special probation.

        On September 30, 2013, [Gilmore] came before [the trial court]
        for the purpose of a revocation [of parole] hearing . . . based on
        the allegation that his [subsequent] conviction . . . was a
        violation of his parole. [Gilmore] was represented by counsel
        during his revocation hearing and did not contest that his
        conviction qualified as a parole violation.             After the

        court, the court] found that [Gilmore] had violated his parole
        and therefore it should be revoked at all dockets. Gilmore was

        years of special probation].

Trial Court Opinion, 2/5/14, at 1-2.

                                           Anders brief, this Court may not review

the merits of the underlying issues without first passing on the request to

               Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.

2005). In order to withdraw pursuant to Anders and McClendon, counsel

must:     (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

____________________________________________


2
    18 Pa.C.S. § 3701(a)(1)(ii).
3
    18 Pa.C.S. § 5121(d)(2).



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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 that the appellant deems worthy of

review.    Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.

2001).      In Santiago, the Pennsylvania Supreme Court altered the

requirements for withdrawal under Anders to mandate the inclusion of a

statement detailing                reasons for concluding the appeal is frivolous.

                                               s that she has made an examination

of the record and concluded the appeal is wholly frivolous. Counsel supplied



proceed pro se, or with newly-retained counsel, and to raise any other issues

he believes might have merit.4 Counsel also has submitted a brief, setting

out in neutral form a single issue of arguable merit.         Finally, counsel has

explained, pursuant to the dictates of Santiago, why she believes the issue

to be frivolous.        See Anders Brief, at 11-12.            Thus, counsel has

substantially complied with the requirements of Anders, McClendon and

Santiago.

        Counsel having satisfied the procedural requirements for withdrawal,

this Court must conduct its own review of the proceedings and render an

____________________________________________


4
    Gilmore has not submitted any additional issues on appeal.



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independent judgment as to whether the appeal is, in fact, wholly frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). In her

Anders brief, counsel raises the following issue:       Whether Gilmore was

denied due process and whether his right to a prompt hearing was violated

where his revocation hearing was scheduled more than ten months after he

pled guilty to the charges that were the basis for his revocation.

                                                                            he



                                                    party must make a timely

and specific objection at the appropriate stage of the proceedings before the

trial court.   Failure to timely object to a basic and fundamental error will

result in waiver of that issue    Thompson v. Thompson, 963 A.2d 474,

475-476 (Pa. Super. 2008). This Court has reviewed the transcript of the

revocation hearing that took place before the trial court, and it is clear that

Gilmore did not object to the delay of which he now complains.            See

Commonwealth v. Marchesano, 502 A.2d 597 (Pa. Super. 1985), order

vacated on other grounds, Commonwealth v. Marchesano, 544 A.2d

1333 (Pa. 1988). (speedy hearing claims must be raised and preserved at

revocation hearing, or be deemed waived).        As such, we would normally

conclude that Gilmore has waived his right to raise this issue on appeal.

However, Anders requires review of issues otherwise waived on appeal.

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009), citing


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Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001).

Accordingly, we will

      Whenever a defendant has been sentenced to probation or
      intermediate punishment, or placed on parole, the judge shall
      not revoke such probation, intermediate punishment, or parole
      as allowed by law unless there has been: (1) a hearing held as
      speedily as possible at which the defendant is present and
      represented by counsel; and (2) a finding of record that the
      defendant violated a condition of probation, intermediate
      punishment, or parole.

Pa.R.C.P. 708(B)(1)-(2).


      require a hearing within a reasonable time. Rule 708 does not
      establish a presumptive period in which the Commonwealth must
      revoke probation; but instead, the question is whether the delay
      was reasonable under the circumstances of the specific case and
      whether the appellant was prejudiced by the delay.              In
      evaluating the reasonableness of a delay, the court examines
      three factors: the length of the delay; the reasons for the delay;
      and the prejudice resulting to the defendant from the delay.

Commonwealth v. Christmas, 995 A.2d 1259, 1262-63 (Pa. Super.

2010).   Additionally, although one specific purpose for requiring a prompt

revocation hearing is to prevent unnecessary restraint of personal liberty, if

a defendant is already incarcerated on the charges that triggered the

probation revocation, he cannot claim the delay in holding his revocation

                                                  Id. at 1263-64.

      In the instant case, Gilmore pled guilty to the new charges that served

as the basis for the revocation of his parole on December 12, 2012.        The



years of special probation.   On September 13, 2013, when the revocation



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hearing took place, Gilmore was still incarcerated on those charges.

Therefore, Gilmore was not prejudiced due to the delay of ten months

between the entry of his guilty plea and the revocation hearing.

     Judgment of sentence affirmed; petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




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