J-S32003-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

DAVID J. HOWARD,

                        Appellant                   No. 2087 EDA 2015


            Appeal from the Judgment of Sentence June 3, 2015
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0002285-2009


BEFORE: BOWES, MUNDY AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 03, 2016

      David J. Howard appeals from a judgment of sentence that was

imposed after Appellant committed a parole violation and was recommitted

to serve the balance of a previously-imposed sentence. Counsel has filed a

petition to withdraw from representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).    We grant counsel’s petition to withdraw and affirm.

      At 3:00 a.m. on April 25, 2009, Fountain Hill police stopped Appellant

for traveling at a high rate of speed. During the course of the traffic stop,

Appellant admitted that he had been drinking and made illogical remarks.

After discovering that Appellant had a suspended license—DUI related, police

administered field sobriety tests, which Appellant failed. He was arrested for


* Retired Senior Judge assigned to the Superior Court.
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DUI and submitted to a blood test, which revealed that his blood alcohol

content was .19%.

      Appellant was charged with driving under the influence of alcohol

(“DUI”)—incapable of driving safely, 75 Pa.C.S. § 3802(a)(1), and DUI,

highest rate of alcohol, 75 Pa.C.S. § 3802(c). The information indicated that

the § 3802(a)(1) offense was an ungraded misdemeanor and that the §

3802(c) infraction was a first-degree misdemeanor, as a second DUI offense.

Appellant also was charged with driving at an unsafe speed and driving with

a suspended license—DUI related.

      On February 22, 2010, Appellant pled guilty to the charges, and he

was sentenced on February 26, 2010, to ninety days to three years

imprisonment to be served in county jail.        Appellant absconded from

supervision.   While still a fugitive, Appellant was arrested on February 1,

2013, and charged with homicide and other crimes.         He pled guilty to

involuntary manslaughter in that matter and was sentenced to two and one-

half to five years.

      Due to the conviction, Appellant was charged herein with violating

parole.   The court found that Appellant violated his parole and sentenced

him to serve the remainder of his term. N.T. Gagnon II hearing, 6/3/15, at

11 (“I find the defendant has violated his conditions of parole as alleged.

The defendant’s parole is revoked. He is remanded to a state correctional

institution to serve the balance of the sentence previously imposed.”).

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Appellant objected to imposition of the term of imprisonment and argued

that the maximum sentence that could be imposed herein was six months

under Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013).1

       Appellant filed a timely pro se notice of appeal,2 and new counsel was

appointed.     As noted, counsel has moved to withdraw.     Since we do not

consider the merits of an issue raised in an Anders brief without first

reviewing a request to withdraw, we now address counsel’s petition to

withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)

(en banc). In order to be permitted to withdraw, counsel must meet three

procedural requirements: 1) petition for leave to withdraw and state that,

after making a conscientious examination of the record, counsel has

concluded that the appeal is frivolous; 2) provide a copy of the Anders brief

to the defendant; and 3) inform the defendant that he has the right to retain

private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court’s attention. Id.

       Counsel’s petition to withdraw states that he thoroughly reviewed the

record and applicable law and concluded that this appeal is wholly frivolous.

____________________________________________


1
 We note that the holding of Musau was adopted by the Court en banc in
Commonwealth v. Grow, 122 A.3d 425 (Pa.Super. 2015) (en banc).
2
  The appeal was timely under the prisoner mailbox rule.         See
Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997); Smith v.
Pennsylvania Board of Probation and Parole, 683 A.2d 278 (Pa. 1996).



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He furnished a copy of the petition to withdraw and the Anders brief to

Appellant. Counsel forwarded to this Court a copy of his letter to Appellant.

Therein, counsel informed Appellant that he was withdrawing based upon a

review establishing that this appeal is frivolous. Further, counsel instructed

Appellant that he has the right to obtain private counsel or to pursue the

appeal without an attorney and raise any points the he deemed worth of our

attention.    A copy of the petition to withdraw and Anders brief was

forwarded to Appellant.        Accordingly, counsel has complied with the

procedural aspects of Anders.

        We   next   examine   whether    counsel’s   Anders   brief   meets   the

substantive elements of Santiago. Pursuant to Santiago, an 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.

        Counsel’s brief is compliant with Santiago. It contains a summary of

the procedure and facts and delineates the applicable law.               Counsel

establishes that the proceedings and sentence were proper under that

precedent.    He analyzes why the sentence imposed herein did not exceed



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the statutory maximum and establishes that there are no non-frivolous

issues to be raised on appeal.        We now examine the propriety of the

proceedings.

      In the parole revocation setting, “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.”

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

burden of proof is on the Commonwealth to prove a violation of parole by a

preponderance of the evidence and, “once it does so, the decision to revoke

parole is a matter for the court's discretion.” Id. “[A] conviction for a new

crime is a legally sufficient basis to revoke parole.” Id.

      In contrast to the probation-revocation setting, “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.” Id. at 290

(citation omitted); accord Commonwealth v. Melius, 100 A.3d 682

(Pa.Super. 2014). The only sentencing option for a parole-revocation court

is to recommit the defendant to serve the balance of the sentence originally

imposed, and the defendant is not permitted to challenge the discretionary

aspects of his parole sentence wherein he was recommitted to serve the

remainder of his previously-imposed term of imprisonment.              Kalichak,

supra; see also Melius, supra.




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       In this case, the Commonwealth established that Appellant committed

a new offense, manslaughter, and, thus, the court did not abuse its

discretionary authority when it revoked parole. Appellant then was ordered

to serve any remaining balance on his sentence, which was the only

sentencing option available at that time.

       The remaining issue concerns Appellant’s argument, which was raised

at sentencing, that the maximum sentence that could be imposed on his

conviction herein was six months imprisonment and that the revocation

court had no authority to re-sentence in excess of that maximum sentence.3

Appellant did not appeal his original ninety-day-to-three-year sentence nor

did he file a timely PCRA petition regarding that sentence; thus, the parole-

revocation sentence did not re-start the time under the PCRA for challenging

the   sentence     imposed      following      entry   of   the   guilty   plea   herein.

Commonwealth v. Anderson, 788 A.2d 1019 (Pa.Super. 2001). However,

since the present claim involves both the legality of the original sentence as

well as the legality of the revocation sentence, we can review the merits of

the allegation that the revocation sentence is illegal as it exceeded the

applicable maximum sentence. Commonwealth v. Infante, 63 A.3d 358

(Pa.Super. 2013).

____________________________________________


3
  The record indicates that Appellant had over two years remaining to serve
on his three-year term.



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     Appellant pled guilty to driving while DUI—highest rate of alcohol

under 75 Pa.C.S. § 3802(c), and he had a prior DUI conviction. That was

the only crime graded in the information as a first-degree misdemeanor. As

noted, the § 3802(a) violation was listed as an ungraded misdemeanor.

Thus, Appellant’s violation of § 3802(c) was properly graded as a first-

degree misdemeanor.      75 Pa.C.S. § 3803(b)(4) (“An individual who. . .

violates section 3802(c) or (d) and who has one or more prior offenses

commits a misdemeanor of the first degree.”). A first-degree misdemeanor

is punishable by up to five years imprisonment. 18 Pa.C.S. § 1104(1); 18

Pa.C.S. § 106(b)(6).

     Appellant relied upon Musau, supra, in arguing that the maximum

sentence that could be imposed in this matter was six months.        In that

decision, Musau was convicted under 75 Pa.C.S. § 3802(a)(1) of DUI,

incapable of safely driving. Musau had refused to undergo chemical testing

of his blood so that he could not be charged with either high rate or highest

rate under § 3802.     Musau also had a prior DUI offense.    The offense in

question was defined as a misdemeanor under 75 Pa.C.S. § 3803(b)(4)

(emphases added) (“An individual who violates section 3802(a)(1)

where the individual refused testing of blood or breath, or who

violates section 3802(c) or (d) and who has one or more prior offenses

commits a misdemeanor of the first degree).




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       Musau was sentenced to ninety days to five years imprisonment, but

argued on appeal that his maximum sentence was six months rather than

five years. We agreed, based upon language formerly in § 3803, stating:

            (a) Basic offenses.—Notwithstanding the provisions of
       subsection (b):

              (1) An individual who violates section 3802(a)
       (relating to driving under influence of alcohol or controlled
       substance) and has no more than one prior offense commits a
       misdemeanor for which the individual may be sentenced to a
       term of imprisonment of not more than six months and to
       pay a fine under section 3804 (relating to penalties).

75 Pa.C.S. § 3803(a)(1) (emphases added). We concluded that this specific

language, which expressly stated that “notwithstanding” § 3803(b),4

trumped the five year sentence allowed under § 3803(b) and that Musau,

who violated only § 3802(a) could not be sentenced to more than six

months in jail.

       Herein, Appellant pled guilty under § 3802(c), and that crime was

listed as a first-degree misdemeanor based upon the fact it was a second

conviction.     While Appellant also pled guilty to § 3802(a), it was not

designated as a first-degree misdemeanor.        The language interpreted by

Musau and contained in § 3803(a) was explicitly confined to a DUI

conviction under § 3802(a). The reasoning of that case is not applicable to

____________________________________________


4
 “Notwithstanding” has been replaced by “Except” in the new version of §
3803(a).



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Appellant as there is no statutory provision that, notwithstanding § 3803(b),

someone who is convicted of § 3802(c) and who has a prior DUI conviction

may be sentenced to a term of imprisonment of not more than six months.

See Commonwealth v. Wilson, 111 A.3d 747 (Pa.Super. 2015).

     Our independent review of the certified record confirms that there are

no other non-frivolous issues that can be raised in this appeal. In so doing,

we observe that Appellant no longer can challenge the validity of his guilty

plea. Anderson, supra.

     Petition of Matthew Rapa, Esquire, to withdraw as counsel is granted.

Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2016




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