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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JOSEPH DAVID HOWARD,                    :          No. 699 EDA 2015
                                        :
                       Appellant        :


         Appeal from the Judgment of Sentence, January 30, 2015,
              in the Court of Common Pleas of Bucks County
             Criminal Division at No. CP-09-CR-0006928-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 16, 2016

     Joseph David Howard appeals from the January 30, 2015 judgment of

sentence after he pled guilty to one count of escape and the trial court

sentenced him to 7 to 23 months’ incarceration.      Lisa Y. Williams, Senior

Deputy Public Defender, has filed a petition to withdraw, alleging that the

appeal is frivolous, accompanied by an Anders brief.1          We will grant

counsel’s withdrawal petition and affirm the judgment of sentence.

     The trial court provided the following factual and procedural history:

                 The following facts are derived from the
           Affidavit of Probable Cause which was incorporated
           into the record at sentencing. In September of
           2014, Appellant was participating in the work release
           program at the Men’s Community Corrections Center
           (“Center”) in Bucks County, Pennsylvania because of

1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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            a prior conviction for criminal mischief.           On
            September 24, 2014 at approximately 3:45 P.M.,
            Appellant clocked out of the Center to attend his
            work placement. Appellant was required to return to
            the Center by 11:30 P.M. that evening.               At
            11:35 P.M., an officer paged Appellant because he
            had failed to return to the Center, but the officer did
            not receive any response from Appellant.              A
            corrections officer responded to Appellant’s work site
            and Appellant was not present. Appellant was then
            placed on escape status.

                  On January 30, 2015, Appellant pled guilty to
            one count of escape[Footnote 1] and was sentenced
            to seven to twenty-three months[’] incarceration in
            the Bucks County Correctional Facility. Appellant
            then filed a post-sentence motion to modify and
            reconsider sentence on February 9, 2015.       This
            motion was denied on February 13, 2015 and
            Appellant timely filed [a] Notice of Appeal to the
            Superior Court of Pennsylvania.

                   [Footnote 1] 18 Pa.C.S.A. § 5121(a).
                   18 Pa.C.S.A. § 5121(d) provides, “An
                   offense under this section is a felony of
                   the third degree where the actor was
                   under arrest for or detained on a charge
                   of felony [or] convicted of a crime.”

Trial court opinion, 4/30/15 at 1-2.

      Appellant raises one issue for our review:

            A.     WHETHER THE SENTENCING JUDGE ABUSED
                   HIS DISCRETION BY REFUSING TO GIVE
                   APPELLANT     TIME     CREDIT    FROM
                   SEPTEMBER 26, 2014 THROUGH JANUARY 29,
                   2015, WHEN THE APPELLANT WAS BEING
                   DETAINED ON BOTH THE PRESENT CASE AND
                   ANOTHER CASE IN WHICH APPELLANT WAS
                   ALREADY SERVING A SENTENCE?

Appellant’s brief at 4.



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     On August 4, 2015, Attorney Williams filed in this court a petition to

withdraw as counsel and an Anders brief, wherein Attorney Williams states

that there are no non-frivolous issues preserved for our review.

           A request by appointed counsel to withdraw pursuant
           to Anders and Santiago gives rise to certain
           requirements and obligations, for both appointed
           counsel and this Court.        Commonwealth v.
           Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
           2015).

                 These requirements and the significant
                 protection they provide to an Anders
                 appellant arise because a criminal
                 defendant has a constitutional right to a
                 direct appeal and to counsel on that
                 appeal.   Commonwealth v. Woods,
                 939 A.2d 896, 898 (Pa.Super. 2007).
                 This Court has summarized these
                 requirements as follows:

                       Direct appeal counsel seeking
                       to withdraw under Anders
                       must file a petition averring
                       that, after a conscientious
                       examination of the record,
                       counsel finds the appeal to
                       be wholly frivolous. Counsel
                       must also file an Anders
                       brief setting forth issues that
                       might arguably support the
                       appeal along with any other
                       issues necessary for the
                       effective             appellate
                       presentation thereof.

                       Anders counsel must also
                       provide a copy of the Anders
                       petition and brief to the
                       appellant,   advising    the
                       appellant of the right to
                       retain new counsel, proceed


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                      pro se or raise additional
                      points worthy of the Court’s
                      attention.

                Woods, 939       A.2d   at   898   (citations
                omitted).

                There are also requirements as to the
                precise content of an Anders brief:

                      The     Anders     brief     that
                      accompanies court-appointed
                      counsel’s       petition       to
                      withdraw     .   .     .   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, 978 A.2d at 361.

          Id. at 1248. If this Court determines that appointed
          counsel has met these obligations, it is then our
          responsibility “to make a full examination of the
          proceedings and make an independent judgment to
          decide whether the appeal is in fact wholly frivolous.”
          Id. at 1248. In so doing, we review not only the
          issues identified by appointed counsel in the Anders
          brief, but examine all of the proceedings to “make
          certain that appointed counsel has not overlooked


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            the existence of potentially non-frivolous issues.”
            Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Williams’ application to withdraw, supporting

documentation, and Anders brief reveals that she has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel,

proceed pro se, and/or raise any additional points that he deems worthy of

this court’s attention, and attached to the Anders petition a copy of the

letter sent to appellant as required under Commonwealth v. Millisock,

873 A.2d 748, 751 (Pa.Super. 2005).        See Commonwealth v. Daniels,

999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are

quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”).          As Attorney Williams

has complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.

     Once    counsel   has   met   her   obligations,   “it   then   becomes   the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to the merits of appellant’s appeal.




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      In his only issue on appeal, appellant avers that he is entitled to time

credit against his criminal mischief sentence and his escape sentence.

      We find this appeal to be wholly frivolous for the reasons discussed in

the trial court’s thorough and comprehensive opinion. Specifically,

            . . . [a]ppellant was still actively serving a sentence
            in the Men’s Community Corrections Center in Bucks
            County for his prior conviction of criminal mischief at
            the time of his escape on September 24, 2014.
            When [a]ppellant was subsequently arrested on
            September 26, 2014, he was still serving the
            sentence for the criminal mischief conviction. As the
            Superior Court held in [Commonwealth v. Davis,
            852 A.2d 392 (Pa.Super. 2004)], [a]ppellant is not
            entitled to credit against two sentences for the
            pre-sentence confinement.            Thus, the time
            [a]ppellant was incarcerated between September 26,
            2014 and January 29, 2015 must be applied to
            [a]ppellant’s original sentence for criminal mischief,
            and not to [a]ppellant’s sentence for escape.

Trial court opinion, 4/30/15 at 5.

      Additionally, our independent review of the entire record has not

disclosed any potentially non-frivolous issues. Therefore, we affirm on the

basis of the trial court’s April 30, 2015 opinion.   Consequently, we grant

counsel’s petition to withdraw, and we affirm the judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2016




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