J. S52012/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA        :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                 v.                 :
                                    :
DOMINIC OTERO,                      :         No. 75 EDA 2016
                                    :
                      Appellant     :


       Appeal from the Judgment of Sentence, November 25, 2015,
           in the Court of Common Pleas of Delaware County
            Criminal Division at No. CP-23-CR-0000159-2012



COMMONWEALTH OF PENNSYLVANIA        :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                 v.                 :
                                    :
DOMINIC OTERO,                      :         No. 76 EDA 2016
                                    :
                      Appellant     :


       Appeal from the Judgment of Sentence, November 25, 2015,
           in the Court of Common Pleas of Delaware County
            Criminal Division at No. CP-23-CR-0005046-2013



COMMONWEALTH OF PENNSYLVANIA        :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                 v.                 :
                                    :
DOMINIC OTERO,                      :         No. 77 EDA 2016
                                    :
                      Appellant     :


       Appeal from the Judgment of Sentence, November 25, 2015,
           in the Court of Common Pleas of Delaware County
            Criminal Division at No. CP-23-CR-0005003-2013
J. S52012/16




BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 18, 2016

        Dominic   Otero   appeals   from   the   judgment   of   sentence   of

November 25, 2015, following revocation of his parole. Appointed counsel,

Patrick J. Connors, Esq., has filed a petition to withdraw and accompanying

Anders brief.1 We grant Attorney Connors’ withdrawal petition and affirm

the judgment of sentence.

                   On November 25, 2015 after a Gagnon II
             hearing[2] addressing each of the above cases
             [(CP-23-CR-159-2012,   CP-23-CR-5003-2013,  &
             CP-23-CR-5046-2013)] [appellant]’s parole was
             revoked and sentences of full back time were
             imposed.    In Case Number 5046-2013 where
             [appellant] was convicted of theft by unlawful

* Retired Senior Judge assigned to the Superior Court.
1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
2
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).

             [W]hen a parolee or probationer is detained pending
             a revocation hearing, due process requires a
             determination at a pre-revocation hearing, a
             Gagnon I hearing, that probable cause exists to
             believe that a violation has been committed. Where
             a finding of probable cause is made, a second, more
             comprehensive hearing, a Gagnon II hearing, is
             required before a final revocation decision can be
             made.

Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa.Super. 2009)
(citations omitted).


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            taking[Footnote 1] full backtime of 274 days of
            incarceration was imposed. In Case Number 5003-
            2013 where [appellant] was convicted of accidents
            involving death or personal injury[Footnote 2]
            (2 counts) and accidents involving damage to an
            unattended vehicle[Footnote 3], an aggregate
            sentence of full backtime of 274 days of
            incarceration was imposed. In Case Number 159-
            2012     where     [appellant]  was   convicted   of
            firearms[Footnote 4] not to be carried without a
            license a sentence [of] full backtime of 274 days of
            incarceration was imposed.      Case Number 5046-
            2013 and Case Number 5003-2013 are to be served
            concurrently and consecutive to the sentence
            imposed in Case Number 159-2012. [Appellant]’s
            violations are well-supported by the record. George
            Buckley, [appellant]’s supervising parole officer
            testified to [appellant]’s numerous and continuous
            violations, including most recently a conviction for
            retail theft and conspiracy to commit retail theft.
            See N.T. 11/25/15 pp. 4-9. This was [appellant]’s
            third Gagnon II proceeding in Case Number 159-
            2012 and his second in the remaining cases.

                  [Footnote 1] 18 Pa.C.S.A. § 3921(A)

                  [Footnote 2] 75 Pa.C.S.A. § 3742(A)

                  [Footnote 3] 75 Pa.C.S.A. § 3745(A)

                  [Footnote 4] 18 Pa.C.S.A. § 6106(A)(1)

Trial court opinion, 1/20/16 at 1-2.

      Appellant’s motion for reconsideration of sentence nunc pro tunc was

denied, and a timely notice of appeal was filed on December 22, 2015. On

December 23, 2015, appellant was directed to file a concise statement of

errors   complained    of   on   appeal      within   21   days   pursuant   to

Pa.R.A.P. 1925(b); on January 13, 2016, appellant filed a statement of



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intent to file an Anders brief in accordance with Rule 1925(c)(4).     On

January 20, 2016, the trial court filed a Rule 1925(a) opinion.

      Appellant has raised the following issue for this court’s review:

“Whether the imposition of aggregate back time of 548 days was harsh and

excessive under the circumstances?” (Appellant’s brief at 3.)

            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. Goodwin, 928 A.2d 287, 290
            (Pa.Super. 2007) (en banc).     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 additional points he deems worthy of
                  the Superior Court’s attention.

            [Commonwealth v. Santiago, 978 A.2d 349, 361
            (Pa. 2009).]

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

2016), quoting Commonwealth v. Martuscelli, 54 A.3d 940, 947

(Pa.Super. 2012) (footnote omitted).

      Upon review, we find that Attorney Connors has complied with all of

the above requirements.     In addition, Attorney Connors served appellant



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with a copy of the Anders brief and advised him of his right to proceed

pro se or hire a private attorney to raise any additional points he deemed

worthy of this court’s review.   Appellant has not responded to counsel’s

motion to withdraw. 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. Hernandez, 783 A.2d 784,

786 (Pa.Super. 2001).      As we find the requirements of Anders and

Santiago are met, we will proceed to the issues on appeal.

     Appellant   argues   that   his    aggregate   sentence   of   548   days’

imprisonment was excessive. (Appellant’s brief at 6.) Appellant argues that

he is needed at home to care for his ailing mother who is recovering from

back surgery. (Id.)

     At the time he was convicted of the new charges, appellant was on

parole, not probation.    The sentencing options available after probation

revocation are not the same as are available following parole revocation.

After determining that parole has been violated, the trial court only has

authority to recommit the defendant to serve out the balance of the term

from which he had been paroled. 61 Pa.C.S.A. § 6138(a)(2).3 By contrast,


3
   If the parolee’s recommitment is so ordered, the parolee shall be
re-entered to serve the remainder of the term which the parolee would have
been compelled to serve had the parole not been granted and, except as
provided under paragraph (2.1), shall be given no credit for the time at
liberty on parole.


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upon revocation of probation, the court possesses the same sentencing

alternatives that it had at the time of the initial sentencing.   42 Pa.C.S.A.

§ 9771(b).   See Com., Dept. of Corrections v. Reese, 774 A.2d 1255,

1262 (Pa.Super. 2001), appeal denied, 790 A.2d 1016 (Pa. 2001) (“When

a parolee is recommitted as a convicted parole violator, he is required to

serve the remainder of his unexpired [prison] term, and shall be given no

credit for the time at liberty on parole.” (internal quotation marks and

citations omitted)).

      Once the trial court revoked appellant’s parole, its only sentencing

option was to recommit appellant to serve out the balance of his sentence.

As this court explained in Commonwealth v. Galletta, 864 A.2d 532

(Pa.Super. 2004), addressing a similar challenge to the sentence imposed

following parole revocation:

             In Commonwealth v. Mitchell, 429 Pa.Super. 435,
             632 A.2d 934 (1993), this Court set forth the
             following, which guides our analysis in the present
             case:

                        Clearly, the order revoking parole
                  does not impose a new sentence; it
                  requires appellant, rather, to serve the
                  balance of a valid sentence previously
                  imposed.      See Commonwealth v.
                  Carter, 336 Pa.Super. 275, 281 n. 2,
                  485 A.2d 802, 805 n. 2 (1984).
                  Moreover, such a recommittal is just
                  that—a recommittal and not a sentence.
                  Abraham v. Dept. of Corrections, 150
                  Pa.Cmwlth. 81, 97, 615 A.2d 814, 822
                  (1992).    Further, at a “Violation of
                  Parole” hearing, the court is not free to


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                  give a new sentence. The power of the
                  court after a finding of violation of parole
                  in cases not under the control of the
                  State Board of Parole is “to recommit to
                  jail. . . .” See Commonwealth v. Fair,
                  345 Pa.Super. 61, 64, 497 A.2d 643, 645
                  (1985), citing 61 P.S. § 314. There is no
                  authority for giving a new sentence with
                  a minimum and maximum. Id. at 61,
                  497 A.2d at 645.            Therefore, an
                  appellant contesting a revocation of
                  parole need not comply with the
                  provisions of Pa.R.A.P. 2119(f) by first
                  articulating    a   substantial    question
                  regarding the discretionary aspects of
                  sentencing. . . . The sole issue on appeal
                  is whether the trial court erred, as a
                  matter of law, in revoking appellant’s
                  parole and committing him to a term of
                  total confinement.

           Id. at 936. See also Commonwealth v. Ware,
           737 A.2d 251, 253 (Pa.Super. 1999) (relying on
           Mitchell and reaffirming that “upon revocation of
           parole, the only sentencing option available is
           recommitment to serve the balance of the term
           initially imposed”).

Id. at 538-539.    “Appellant’s argument that this sentence is harsh and

excessive cannot be addressed in the context of a review of a parole

revocation, since as the Mitchell court held ‘there is no authority to give a

new sentence. . . .’” Id. at 539, quoting Mitchell, 632 A.2d at 936.

     Furthermore, it is clear that the trial court did not abuse its discretion

in revoking appellant’s parole where he was arrested multiple times and

refused to comply with the conditions of supervision, including using

controlled substances. (Notes of testimony, 11/25/15 at 8.) In March 2013,



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appellant was arrested on four separate occasions. (Id.) He was detained

once for use of a firearm, in violation of the rules and regulations of his

probation/parole.     (Id. at 9.)   In August 2015, he was arrested on new

charges and was convicted of conspiracy to commit retail theft. (Id. at 6,

9.)   The November 25, 2015 hearing was appellant’s third Gagnon II

hearing. (Id. at 11.)

      For the reasons discussed above, we determine that appellant’s issues

on appeal are wholly frivolous and without merit.    Furthermore, after our

own independent review of the record, we are unable to discern any

additional   issues    of   arguable   merit.   Therefore,   we   will   grant

Attorney Connors’ petition to withdraw and affirm the judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2016




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