J-S69019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAMAR ROBERTS                              :
                                               :
                       Appellant               :   No. 1742 EDA 2019


         Appeal from the Judgment of Sentence Entered May 29, 2019,
              in the Court of Common Pleas of Delaware County,
            Criminal Division at No(s): CP-23-CR-0006215-2018.

BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED JANUARY 31, 2020

        Lamar Roberts appeals from the judgment of sentence imposed

following the revocation of his parole. Additionally, Roberts’ court-appointed

counsel, Patrick J. Connors, Esquire, has filed an application to withdraw as

counsel and an accompanying brief pursuant to Anders v. California, 386

U.S. 738, 744 (1967). We grant Attorney Connors’ application, and affirm

Roberts’ judgment of sentence.

        On November 8, 2018, Roberts entered a negotiated guilty plea to

resisting arrest. The trial court sentenced him to time served to twenty-three

months of incarceration. On May 29, 2019, while Roberts was on parole, he


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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pleaded guilty to possession of a controlled substance in another criminal

case.1   The trial court conducted a Gagnon II2 hearing for Roberts’ prior

offenses, and found Roberts in violation of the terms of his parole.

       In the resentencing phase of the Gagnon II hearing, Roberts

acknowledged his violation of parole, but requested that the trial court impose

a sentence with immediate eligibility for work release so that he could work

for a landscaping company which agreed to continue his employment through

work release. He additionally asked the court to grant parole after serving

365 days. The trial court also heard testimony from a representative of the

Adult Probation and Parole Department, who recommended that Roberts be

recommitted to serve the full back time of his original sentence (526 days),



____________________________________________


1 This offense was docketed at CP-23-CR-001682-2019. Roberts received a
probationary term of two years for this conviction.

2  See Gagnon v. Scarpelli, 411 U.S. 778 (1973). When 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. Commonwealth
v. Ferguson, 761 A.2d 613 (Pa. Super. 2000). 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. Sims, 770 A.2d 346, 349 (Pa. Super. 2001). The Gagnon II hearing
entails two decisions. First, the court must make a factual determination as
to whether the parolee or probationer has, in fact, acted in violation of one or
more conditions of his parole or probation. Id. If it is determined that the
parolee or probationer did violate the conditions, the court must then decide
whether the parolee or probationer be recommitted to prison or should other
steps be taken to protect society and improve chances of rehabilitation. Id.



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noting that Roberts had been given multiple opportunities while on

supervision, but had continuously failed to comply.

       The trial court determined that Roberts should be recommitted to serve

the full back time of his original sentence, and sentenced him to 526 days of

incarceration. The trial court agreed to grant work release after Roberts had

served 365 days of incarceration. The trial court ordered the sentence to run

concurrently with additional lesser sentences imposed for Roberts’ violation of

parole in his other criminal cases.3

       Roberts filed a timely pro se notice of appeal.4 The trial court ordered

him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. In response, Attorney Connors filed a notice of his intent to file an



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3 On the same date, Roberts was resentenced for parole violations in three
other Delaware County criminal cases: CP-23-CR-002394-2014 (resentenced
to 101 days of incarceration); CP-23-CR-005673-2017 (resentenced to 101
days of incarceration); and CP-23-CR-002961-2017 (resentenced to 277 days
of incarceration). In this appeal, Roberts presents no challenge to the
resentences imposed in the other criminal cases.

4 Our courts have made clear that a defendant who is represented by counsel
may not engage in hybrid representation by filing pro se documents. See
Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). However, while there
is no right to hybrid representation, there is a right to appeal pursuant to
Article 5, § 9 of the Pennsylvania Constitution. See Commonwealth v. Ellis,
626 A.2d 1137, 1138 (Pa. 1993). Because a notice of appeal protects a
constitutional right, it is distinguishable from other filings that require counsel
to provide legal knowledge and strategy in creating a motion, petition, or brief.
See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa.Super. 2016). The
trial court therefore properly docketed the pro se notice of appeal and
forwarded it to this Court pursuant to Pa.R.A.P. 902 (note), even though
Roberts was represented by counsel.

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Anders brief. The trial court thereafter filed a Pa.R.A.P. 1925(a) opinion. In

this Court, Attorney Connors filed an application to withdraw as counsel and

an Anders brief. Roberts did not file a response to the application or the

Anders brief.

      “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. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, counsel must do the

following:

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief referring
      to any issues that might arguably support the appeal, but which
      does not resemble a no-merit letter; and (3) furnish a copy of the
      brief to the defendant and advise him of his right to retain new
      counsel, proceed pro se, or raise any additional points he deems
      worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders, i.e.,

the contents of an Anders brief, and required that the brief:

      (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;




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      (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.          Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “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.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

      Here, Attorney Connors has complied with each of the requirements of

Anders. Attorney Connors indicates that he conscientiously examined the

record and determined that an appeal would be frivolous. Further, Attorney

Connors’s Anders brief substantially comports with the requirements set forth

by the Supreme Court of Pennsylvania in Santiago.            Finally, the record

includes a copy of the letter that Attorney Connors sent to Roberts, advising

him of his right to proceed pro se or retain alternate counsel and file additional

claims, and stating Attorney Connors’ intention to seek permission to

withdraw. Accordingly, Attorney Connors has complied with the procedural

requirements for withdrawing from representation, and we will conduct an

independent review to determine whether Roberts’ appeal is wholly frivolous.

      In the Anders Brief, Attorney Connors raises one issue for our review:

      Whether the term imposed herein of 526 days of incarceration
      without eligibility for work release until 365 days has elapsed is

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         harsh and excessive under the circumstances due to the non-
         violent nature of the offenses and violations along with Mr.
         Roberts’ stated desire to continue his legitimate employment with
         a work release program?

Anders Brief at 3 (unnecessary capitalization omitted).

         This claim challenges the discretionary aspects of Roberts’ sentence. As

we have explained, “[c]hallenges to the discretionary aspects of sentencing

do not entitle an appellant to review as of right.” Commonwealth v. Moury,

992 A.2d 162, 170 (Pa. Super. 2010).          Prior to reaching the merits of a

discretionary sentencing issue, this Court conducts a four-part analysis to

determine:

         (1) whether appellant has filed a timely notice of appeal, see
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and modify
         sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
         has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there
         is a substantial question that the sentence appealed from is not
         appropriate under the Sentencing Code, [see] 42 Pa.C.S.A.
         § 9781(b).

Id. (citation omitted). When an appellant challenges the discretionary aspects

of his sentence, we must consider his brief on this issue as a petition for

permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.

Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18

(Pa. 1987); 42 Pa.C.S.A. § 9781(b).

         We determine the existence of a substantial question on a case-by-case

basis.     See Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super.

2008). A substantial question exists only when “the appellant advances a



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colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to   the   fundamental   norms   which    underlie   the   sentencing   process.”

Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016) (internal

citations and quotation marks omitted).

      In the instant case, Roberts filed a timely pro se notice of appeal, and

preserved his excessiveness claim in a timely post-sentence motion.

Additionally, the Anders brief includes a Rule 2119(f) statement. As such,

Roberts technically complied with the first three requirements to challenge the

discretionary aspects of his sentence. See Commonwealth v. Rhoades, 8

A.3d 912, 916 (Pa. Super. 2010). Thus, we will proceed to review the Rule

2119(f) statement to determine whether Roberts has presented a substantial

question for our review.

      In the Pa.R.A.P. 2119(f) statement, Attorney Connors claims that the

trial court should have been more lenient in sentencing Roberts due to the

available opportunity he had to remain employed. Attorney Connors argues

that the lengthy sentence imposed and its restriction on Roberts’ eligibility for

work release is harsh and excessive in light of the non-violent nature of his

crimes and his chance to maintain gainful employment.

      A claim that a sentence is manifestly excessive such that it constitutes

too severe a punishment raises a substantial question. See Commonwealth




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v. Mouzon, 812 A.2d 617, 624 (Pa. 2002). Thus, we will address Roberts’

excessiveness claim.

      Attorney Connors indicates that Roberts’ excessiveness claim has

arguable merit because a more lenient sentence that permits him to remain

employed would help him prepare for his return to society and put his time in

prison to good use. Anders Brief at 9. Specifically, Attorney Connors argues

that Roberts’ sentence of restrictive incarceration for non-violent offenses is

“arguably totally irrelevant to public safety and will only delay his effort to

gain any kind of rehabilitation with legitimate employment.”             Id. at 10

(internal quotations omitted).

      Nevertheless, Attorney Connors asserts that Roberts’ excessiveness

claim is frivolous and unsupported by the record. Id. at 10. He points out

that the trial court had broad discretion in fashioning Roberts’ sentence, and

that such discretion will not be disturbed unless the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill will. Id. (citing Commonwealth v. Perry, 32 A.3d 232,

236 (Pa. 2011)). Attorney Connors submits that the sentence imposed is not

manifestly   unreasonable,    and    the   record   demonstrates    no   partiality,

prejudice, bias, or ill will by the trial court because the trial court followed the

recommendation of the Adult Probation and Parole Department, and showed

leniency by permitting Roberts to be eligible for work release after serving one

year of incarceration.


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      Parole is the conditional release from jail, prison or other confinement,

after actually serving part of the sentence, if the parolee satisfactorily

complies with all terms and conditions provided in parole order.              See

Commonwealth v. Holmes, 933 A.2d 57, 59 n.5 (Pa. 2007). A court faced

with a parole violation must recommit the parolee to serve the remainder of

the original sentence of imprisonment, from which the prisoner could be

reparoled.   Id. (citing Commonwealth v. Fair, 497 A.2d 643, 645 (Pa.

Super. 1985) (noting that trial courts are bound by the limits of the original

sentence in sentencing for a violation of parole)).

      Here, the trial court found Roberts’ pattern of committing probation

and/or parole violations, though technical, to be serious:

      [Roberts] has repeatedly committed acts that constitute technical
      violations of the terms of his probation and/or parole on cases that
      date back to 2014. He has been convicted of several new crimes
      over the years. Most recently, on the day of the Gagnon II
      hearing [in] this matter[,] he entered a negotiated guilty plea to
      possession of a controlled substance (Case Number 1682-2019)
      and was sentenced to a two-year term of probation.

Trial Court Opinion, 7/19/19, at 1-2 (formatting altered, footnote omitted).

      Having determined that Roberts violated the terms of his parole, the

trial court recommitted him to serve the remainder of the original sentence of

imprisonment, as the court was required to do upon its finding of a parole

violation. See Holmes, 933 A.2d at 59 n.5; see also Fair, 497 A.2d at 645.

Under these circumstances, we cannot conclude that the sentence imposed is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will.


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See Perry, 32 A.3d at 236.      Therefore, we agree with Attorney Connors’

assessment that Roberts’ excessiveness claim is, in fact, wholly frivolous.

      Finally, as required by Anders, we have independently reviewed the

record in order to determine whether there are any non-frivolous issues

present in this case. Our independent review of the record discloses no other

non-frivolous issues that Roberts could raise that his counsel overlooked.

Dempster, supra.

      Having concluded that there are no meritorious issues, we grant

Attorney Connors’ application to withdraw as counsel, and affirm the judgment

of sentence.

      Application to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/20




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