J-S53041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RANDY L. DUNLAP                            :
                                               :
                       Appellant               :   No. 876 EDA 2019

       Appeal from the Judgment of Sentence Entered February 12, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0005654-2011


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 26, 2019

       Appellant Randy L. Dunlap appeals from the judgment of sentence

imposed for a violation of parole (VOP). Appellant’s counsel has filed a petition

to withdraw and an Anders/Santiago1 brief. For the reasons that follow, we

deny counsel’s petition to withdraw and remand for further proceedings

consistent with this memorandum.

       On October 27, 2011, Appellant, who was represented by counsel,2

entered a negotiated guilty plea to driving under the influence (DUI)—highest

____________________________________________


1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).

2Appellant was represented by different attorneys from the Delaware County
Public Defender’s Office during his initial plea and sentencing, his revocation
proceedings, and this appeal.
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rate of alcohol (second offense) and fleeing or attempting to elude an officer.3

The trial court imposed the agreed-upon sentence of nine to twenty-three

months’ incarceration followed by two years’ probation.

        On November 15, 2016, the trial court found Appellant in violation of his

probation and imposed an aggregate sentence of three to twelve months’

incarceration.

        On October 6, 2017, Appellant was arrested and charged with several

offenses in the state of Delaware. On February 12, 2019, the trial court held

a Gagnon II4 hearing, at which Appellant was represented by Attorney Daniel

Finnigan, Esq. (VOP counsel).          At the hearing, Appellant stipulated to the

parole violation. See N.T. VOP Hr’g, 2/12/19, at 3. VOP counsel and the

Commonwealth acknowledged that Appellant had 292 days of unserved

backtime. Id. at 4. VOP counsel explained that

        [Appellant has] basically got two new arrests in Delaware [state],
        which he thinks [are] going to be resolved without prosecution.
        He was getting his tools back from his girlfriend’s house and she
        doesn’t want to prosecute those cases, but he still has to go to
        Chester County for a VOP there and doesn’t want to delay
        anything. So, he wants to get back to Delaware as quick as
        possible and all he’s asking is that the [trial court], if you impose
        [the backtime] sentence, consider granting him immediate parole
        once he’s released from custody in Delaware.




____________________________________________


3   75 Pa.C.S. §§ 3802(c) and 3733(a).

4   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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N.T. VOP Hr’g, 2/12/19, at 3. The trial court asked for further clarification,

and VOP counsel reiterated that

      [i]f [Appellant is] released before 292 days, he’s just asking the
      [trial court] to consider paroling him—stating on your order that
      he can be paroled from this case so it doesn’t hold up his release
      from Delaware or hold up his incarceration.

Id. at 4. The Commonwealth agreed, and requested that the trial court

      impose the sentence here with the understanding that if [VOP
      counsel] or someone from his office finds that [Appellant] is
      released in Delaware, they can just bring an order granting him
      immediate parole at that point on our case.

Id. at 5.

      However, instead of recommitting Appellant to serve his full backtime

on the parole violation, the trial court imposed two concurrent sentences of

150 days’ incarceration. Id. at 9. Specifically, the trial court explained:

      Here’s what I’d like to do and [Commonwealth], just tell me if I
      can do this, first of all, I’d like to give him 150 days, not the 292
      and he can get -- if he’s released in Delaware before the 150 is
      up, he can get released, but then he’s done. I don’t want him
      back here.

Id. at 8 (emphasis added). The trial court reiterated that if Appellant was

released from Delaware state custody before serving the full 150 days, then

he could petition the trial court for immediate parole. Id. If Appellant was

not released in Delaware, the trial court indicated that he would “serve the

150 and you’ll never see me again.” Id. That same day, the trial court issued

an order imposing “full back time of 150 days” on each count. Sentencing

Order, 2/12/19, at 1.

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         On March 12, 2019, Appellant filed a timely notice of appeal through his

attorney of record, Patrick J. Connors, Esq. (appointed counsel) of the

Delaware County Public Defender’s Office. Appointed counsel subsequently

filed a statement of intent to file an Anders/Santiago brief, pursuant to

Pa.R.A.P. 1925(c)(4). In its Rule 1925(a) opinion, the trial court declined to

address whether Appellant had any meritorious appellate issues. See Trial

Ct. Op., 5/1/19, at 2.       Nevertheless, the trial court noted that Appellant’s

sentence was “significantly less than the two hundred ninety-two days of back

time that was recommended by the Office of Probation and Parole.” Id.

         On August 8, 2019, appointed counsel filed an Anders/Santiago brief

and a separate petition to withdraw.5 Appointed counsel’s withdrawal petition

indicates that he sent a copy of the Anders brief to Appellant, along with a

letter advising Appellant of his right to proceed pro se or with new, privately

retained counsel. Appellant has not filed a pro se brief or a counseled brief

with a new attorney.

         Appointed counsel’s Anders/Santiago brief identifies the following

issue:

         Whether the term of 150 days of incarceration imposed herein is
         harsh and excessive under the circumstances due to the
         potentially lengthy terms of incarceration which could be imposed


____________________________________________


5 Another attorney from the Delaware County Public Defender’s Office, William
Ruane, Esq., entered his appearance in this case on June 18, 2019. However,
Attorney Patrick J. Connors (appointed counsel) is still listed as lead counsel
for Appellant.

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      on [Appellant] for a violation of probation in Chester County and
      pending charges in the state of Delaware.

Anders/Santiago Brief at 3 (full capitalization omitted).

      “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.

Super. 2008) (citation omitted).    Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to

withdraw stating that, after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to the appellant; and (3) advising the appellant that he has

the right to retain private counsel, proceed pro se, or raise additional

arguments that the appellant considers worthy of the court’s attention. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc).

      Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

      (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.



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      Only after determining that counsel has satisfied these technical

requirements, may this Court “conduct an independent review of the record

to discern if there are any additional, non-frivolous issues overlooked by

counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (citations and footnote omitted); accord Commonwealth v. Yorgey,

188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

      Here, appointed counsel has complied with the procedures for seeking

withdrawal by filing a petition to withdraw, sending Appellant a letter

explaining his appellate rights, and supplying Appellant with a copy of the

Anders/Santiago brief.       See Goodwin, 928 A.2d at 290.           Moreover,

appointed counsel’s Anders/Santiago brief complies with the requirements

of Santiago. Appointed counsel includes a summary of the relevant factual

and procedural history, refers to the portions of the record that could arguably

support Appellant’s claims, and sets forth the conclusion that the appeal is

frivolous. Additionally, appointed counsel explains his reasoning and supports

his rationale with citations to the record and pertinent legal authority.

Accordingly, we conclude that appointed counsel has met the technical

requirements of Anders and Santiago, and we will proceed to address the

issue raised in the Anders/Santiago brief.

      The sole issue identified by appointed counsel suggests that the trial

court imposed “a sentence that is harsh and excessive under the

circumstances of his case.”     Anders/Santiago Brief at 9.        Specifically,


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appointed counsel points to Appellant’s belief that the trial court abused its

discretion when it imposed a backtime sentence “despite the fact that

[Appellant] was already facing outstanding warrants out of Chester County

and the State of Delaware.” Id. at 8. Further, appointed counsel references

Appellant’s claim that “[i]mmediate parole to those detainers was the more

reasonable approach as he was going to remain incarcerated in any event by

one of those other jurisdictions.” Id. Appointed counsel submits that “[a]fter

a full review of the record, there does not appear to be any abuse of discretion

or other error committed by the [trial] court.” Id. at 11.

      Generally, when a defendant’s parole is revoked and a defendant is

recommitted to custody, the severity of the sentence is not subject to review.

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

also 42 Pa.C.S. § 9776(e). Following parole revocation, the trial court has

the authority to recommit the defendant to custody. See Commonwealth

v. Mitchell, 632 A.2d 934, 936 (Pa. Super. 1993). However, the trial court

cannot impose a new sentence, as the previously imposed sentence remains

in effect. Id; see also Commonwealth v. Holmes, 933 A.2d 57, 59 n.5

(Pa. 2007) (stating that parole is a “conditional release from imprisonment

which entitles parolee to serve remainder of his term outside the confines of

an institution, if he satisfactorily complies with all terms and conditions

provided in parole order” (citation omitted)). Therefore, “the only option for

a court that decides to revoke parole is to recommit the defendant to serve


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the already-imposed, original sentence.      At some point thereafter, the

defendant may again be paroled.”      Kalichak, 943 A.2d at 290 (citation

omitted).

      In conducting a parole-revocation hearing, the trial court must

      determine whether the parolee violated parole and, if so, whether
      parole remains a viable means of rehabilitating the defendant and
      deterring future antisocial conduct, or whether revocation, and
      thus recommitment, are in order. . . .

      Following parole revocation and recommitment, 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. Accordingly, an appeal of a parole
      revocation is not an appeal of the discretionary aspects of
      sentence.

      As such, a defendant appealing recommitment cannot contend,
      for example, that the sentence is harsh and excessive.
      [Commonwealth v. Galletta, 864 A.2d 532, 539 (Pa. Super.
      2004)]. Such a claim might implicate discretionary sentencing but
      it is improper in a parole-revocation appeal. Similarly, it is
      inappropriate for a parole-revocation appellant to challenge the
      sentence by arguing that the court failed to consider mitigating
      factors or failed to place reasons for sentence on the record.
      Challenges of those types again implicate the discretionary
      aspects of the underlying sentence, not the legal propriety of
      revoking parole.

Id. at 290-91 (some citations omitted); see also Holmes, 933 A.2d at 59

n.5 (stating that although a court can impose a new sentence for a violation

of probation, “a court faced with a parole violation must recommit the parolee

to serve the remainder of the original sentence of imprisonment” (citations

omitted)).




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      Here, the issue identified by appointed counsel relates to the

discretionary aspects of Appellant’s sentence. See Galletta, 864 A.2d at 539.

However, as this Court noted in Kalichak, discretionary sentencing claims are

“improper in a parole-revocation appeal.” Kalichak, 943 A.2d at 291 (citing

Galletta, 864 A.2d at 539); see also Holmes, 933 A.2d at 59 n.5. Therefore,

the claim identified by appointed counsel is frivolous.

      In conducting our independent review of the record, we must discern

whether “the revocation court erred, as a matter of law, in deciding to revoke

parole and, therefore, to recommit the defendant to confinement.” Kalichak,

943 A.2d at 291. Here, the record confirms that Appellant stipulated to the

parole violation at the revocation hearing. Therefore, the trial court had a

legally sufficient basis to revoke Appellant’s parole. Id.

      Following revocation, the trial court was required to recommit Appellant

to serve the “already-imposed, original sentence.” Id. However, here, the

trial court imposed a sentence of 150 days’ incarceration and indicated that,

after that time, Appellant would no longer be under the trial court’s

supervision. See N.T. VOP Hr’g, 2/12/19, at 8. Although the trial court had

discretion to release Appellant on parole before he served the balance of his

backtime, the trial court did not have authority to impose a new sentence that

replaced Appellant’s original sentence with a shorter one. See Mitchell, 632

A.2d at 936; see also Kalichak, 943 A.2d at 290–91. By ordering Appellant

to serve 150 days’ incarceration, which effectively vacated the remaining 142


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days of unserved backtime, the trial court imposed an illegal sentence. See

Holmes, 933 A.2d at 59 n.5 (stating that the only sentence available to the

court on the parole violation was the unexpired balance of the defendant’s

original sentence).

      In sum, we conclude that the issue identified by appointed counsel is

frivolous. However, our independent review has revealed that the trial court

imposed an illegal sentence. Therefore, we vacate Appellant’s judgment of

sentence and remand for resentencing. On remand, we direct the trial court

to recommit Appellant to serve the remainder of his backtime.            At the

resentencing hearing, the trial court also has the option of granting immediate

parole or making Appellant parole eligible before the expiration of his backtime

sentence.   See 42 Pa.C.S. § 9776(e).         Additionally, we deny appointed

counsel’s petition to withdraw.

      Judgment of sentence vacated.       Petition to withdraw denied.     Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/19




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