J-S60045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

MARIO J. FIGUEROA

                            Appellant              No. 1821 EDA 2015


             Appeal from the Judgment of Sentence June 12, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000430-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                          FILED OCTOBER 16, 2015

       Mario J. Figueroa appeals from the judgment of sentence entered on

June 12, 2015, in the Court of Common Pleas of Northampton County

following the acceptance of his open guilty plea to the charge of possession

of drug paraphernalia.1 His arrest on the instant charges led to findings of

probation violations (VOP), and incarceration, in both Pennsylvania and New

York.2       Figueroa was sentenced to a term of two to four months

incarceration on the possession of drug paraphernalia charge. In this timely

____________________________________________


1
 35 P.S. § 780-113(a)(32) – two empty packages of synthetic marijuana.
The plea agreement was open as to sentencing, but three counts of
possession of synthetic marijuana, § 780-113(a)(16), were nolle prossed as
part of the agreement.
2
  Figueroa has not appealed his revocation sentence, and the record in his
Pennsylvania VOP case is not part of this record.
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appeal, Figueroa raises two claims: (1) his sentence is illegal in that he has

not been properly credited for time served, and (2) his sentence subjected

him to double jeopardy.          Counsel has filed an Anders3 brief, stating all

issues are frivolous, along with a request to withdraw as counsel. Following

a thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm. We also grant counsel leave to withdraw from

representation.

       Before we begin our substantive analysis, we must first review
       defense counsel's Anders brief and motion to withdraw. See
       Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super.
       2007)(en banc ).

       Prior to withdrawing as counsel on a direct appeal under
       Anders, counsel must file a brief that meets the requirements
       established by our Supreme Court in Santiago. The 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.



____________________________________________


3
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).



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      Santiago, 978 A.2d at 361. Counsel also must provide a copy
      of the Anders brief to his client. Attending the brief must be a
      letter that advises the client of his right to: “(1) retain new
      counsel to pursue the appeal; (2) proceed pro se on appeal; or
      (3) raise any points that the appellant deems worthy of the
      court's attention in addition to the points raised by counsel in the
      Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 353
      (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
      (2007).

Commonwealth v. Bennett, ___ A.3d ___, 2015 PA Super 198, at *1-2

(Pa. Super. 9/17/2015).    Our review of the certified records confirms that

counsel has followed the dictates of Anders/Santiago.          Additionally, we

note that Figueroa has not filed a pro se response to counsel’s Anders brief.

      However, our review of the certified record compels us to make note of

a procedural problem.     Following his guilty plea, Figueroa filed a pro se

notice of appeal, despite being represented by counsel. Subsequently, the

trial court ordered Figueroa to file a Pa.R.A.P. 1925(b) statement of matters

complained of on appeal. This notice was forwarded to counsel as well as

Figueroa.   Before counsel could respond, Figueroa filed a pro se Rule

1925(b) concise statement and the trial court authored a perfunctory Rule

1925(a) memorandum.       This action by the trial court is a violation of the

prohibition against hybrid representation and would require us to remand

this matter.   See Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.

1993).   However, while still within the 21 days allowed under the order,

counsel filed a concise statement, listing the issues addressed in the Anders

brief. Our review of the record leads us to conclude that it is clear that if we

remanded this matter, counsel would simply refile the same Rule 1925(b)


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statement, the trial court would reissue its memorandum, returning us to

the status quo, having only taxed judicial resources. Accordingly, while we

remind the trial court that when a defendant is represented by counsel, pro

se filings are not to be acted upon, we find counsel has prevented any

prejudice to Figueroa by her actions in filing the court-ordered Rule 1925(b)

statement within the 21 day time limit.       Therefore, we will address the

merits of this appeal.

      The underlying facts of this matter are easily related.      On April 14,

2015, State Parole Officer Brian Fallock conducted a search of Figueroa’s

home pursuant to the terms of Figueroa’s parole status.          Officer Fallock

found three full packages of synthetic marijuana and two empty packages of

synthetic marijuana.     Officer Fallock notified the Borough of Wilson Police

Department. Police Officer Dan Dieter arrived and confiscated the evidence,

and submitted it for testing, which confirmed it was a controlled substance.

On September 23, 2014 a summons and complaint was filed against

Figueroa, charging his with the above mentioned crimes. The filing of the

charges acted as a violation of Figueroa’s probation in Pennsylvania and

parole in New York. Prior to pleading guilty in this case, Figueroa served a

four month sentence for violating his Pennsylvania probation and seven

months in New York.

      Our standard of review is well settled. “Issues relating to the legality of

a sentence are questions of law.... Our standard of review over such




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questions is de novo and our scope of review is plenary.” Commonwealth

v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (citation omitted).

       Figueroa argues both the probation violation sentences and the

sentence for possession of drug paraphernalia are based upon the same

criminal conduct. Accordingly, he argues either he should be credited with

time served in his revocation sentences in the instant sentence or that the

instant sentence represents double punishment and so violates the Fifth

Amendment of the United States Constitution.                Neither argument is

persuasive.

       We will begin with the double jeopardy claim. Figueroa argues that his

arrest on the instant charge provided the basis for his serving an additional

term of incarceration in both Pennsylvania and New York for violating his

prior sentence in each jurisdiction.4          The Fifth Amendment prohibits any

person from being “subject for the same offense to be twice put in jeopardy

of life or limb.” U.S. Const., Amdt. 5. Accordingly, he argues he cannot be

sentenced again for possessing the drug paraphernalia.

       Somewhat surprisingly, this precise argument does not appear to have

been raised previously in Pennsylvania. Nonetheless, federal jurisprudence

makes it clear that the argument is frivolous. United States of America v.
____________________________________________


4
  In revocation of probation circumstances, the claim of double jeopardy is
based upon the reimposition of sentence on the original crime.         See
Commonwealth v. Hunter, 468 A.2d 505 (Pa. Super. 1983). However,
Figueroa’s revocation sentences are not before us.



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Woods, 127 F.3d 990 (11th Cir. 1997), provides an excellent explanation of

why this argument fails. Although we are not bound by a federal decision

arising from Alabama, we adopt the reasoning.

       In Woods, the defendant committed a robbery while on probation for

another unrelated crime.          He pled guilty to violating the terms of his

probation and was sentenced to a term of six months’ incarceration.        He

then claimed subsequent prosecution for the robbery charge was prohibited

by operation of the double jeopardy clause of the Fifth Amendment to the

United States Constitution. This argument was based on the United States

Supreme Court decision in United States v. Dixon, 509 U.S. 688, 113

S.Ct. 2849, 125 L.Ed.2d 556 (1993).5

       In Dixon, the defendant had been arrested for murder and was
       released on bond. While awaiting trial on the murder charge,
       Dixon was arrested and indicted for possession with intent to
       distribute cocaine. Following an expedited hearing, Dixon was
       found guilty of criminal contempt for violating the terms of his
       bond release and sentenced to a term of imprisonment.
       Reasoning that “criminal contempt, at least in its nonsummary
       form, is a crime in every fundamental respect,” 509 U.S. at 699-
       700, 113 S.Ct. at 2858 (internal quotation omitted), the
       Supreme Court found that a subsequent prosecution for the drug
       offense was barred by the Double Jeopardy Clause.

United States v. Woods, 127 F.3d at 992.

       The Eleventh Circuit rejected this argument, stating:


____________________________________________


5
 Pennsylvania has adopted Dixon in Commonwealth v. Yerby, 679 A.2d
217 (Pa. 1996).



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     The Supreme Court's resolution of the claim at issue in Dixon
     does not alter our determination that revocation of probation for
     commission of a subsequent criminal offense does not constitute
     punishment for that criminal offense for purposes of double
     jeopardy; rather, revocation of probation constitutes a
     modification of the terms of the original sentence and implicates
     solely the punishment initially imposed for the offense conduct
     underlying that sentence. It is critical to note that, at the time he
     was adjudicated guilty with respect to the criminal contempt
     charge, the defendant in Dixon had been convicted of no other
     offense. Indeed, a prosecution and conviction for criminal
     contempt is punishment for the conduct constituting contempt of
     court, not for any underlying crime. See United States v.
     Soto-Olivas, 44 F.3d 788, 792 (9th Cir.), cert. denied, 515 U.S.
     1127, 115 S.Ct. 2289, 132 L.Ed.2d 290 (1995). In Dixon, there
     was no underlying crime to punish. In the instant case, because
     Woods' commission of a criminal offense constituted a violation
     of the terms of his probation, it consequently provided grounds
     for the revocation of his probation. The punishment imposed in
     the form of probation revocation, however, was part of his
     original sentence and thus constituted punishment for the crime
     underlying that sentence. Contrary to Woods' suggestion,
     subsequent prosecution for the criminal conduct committed while
     on probation constitutes prosecution for an entirely new offense
     and is not precluded by the Double Jeopardy Clause.

     We note that every other circuit to have addressed this precise
     claim in the context of Dixon has reached the same result
     reached by our court today. See, e.g., United States v. Wyatt,
     102 F.3d 241, 245 (7th Cir. 1996) (“Because revocation of
     supervised release amounts only to a modification of the terms
     of the defendant's original sentence, and does not constitute
     punishment for the revocation-triggering offense, the Double
     Jeopardy Clause is not violated by a subsequent prosecution for
     that offense.”), cert. denied, 520 U.S. 1149, 117 S.Ct. 1325,
     137 L.Ed.2d 486 (1997); United States v. Woodrup, 86 F.3d
     359, 363 (4th Cir.) (“[T]he Double Jeopardy Clause does not
     prohibit the government from criminally prosecuting and
     punishing an offense which has formed the basis for revocation
     of a term of supervised release.”), cert. denied, 519 U.S. 944,
     117 S.Ct. 332, 136 L.Ed.2d 245 (1996); United States v. Soto-
     Olivas, 44 F.3d at 791 (“[P]unishment imposed upon revocation
     of supervised release is punishment for the original crime, not
     punishment for the conduct leading to revocation.”). We similarly


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       conclude that revocation of probation constitutes part of a
       defendant's original sentence and does not preclude subsequent
       prosecution for the criminal conduct that gave rise to the
       probation revocation. Accordingly, Woods' conviction for robbery
       does not violate the Double Jeopardy Clause.

Id. at 992-93.

       The foregoing reasoning is compelling and ably demonstrates the

falsity of Figueroa’s argument. Accordingly, this claim merits no relief.

       The reasoning in Woods is equally applicable to Figueroa’s claim that

he is entitled to credit for time served from his probation violation sentences

in his instant sentence.6 Simply put, any punishment imposed for violation

of probation represents punishment for the original crime, not for the

conduct that led to revocation. See Woods, supra, quoting United States

v. Soto-Olivas. This reasoning is also found in Pennsylvania case law:

       [T]he imposition of probation defers further sentencing of a
       defendant until such time as he violates the conditions placed on
       the probation, and when the violation of those conditions occurs,
       the resentence of the defendant is an integral element of the
       original conditional sentence of probation, not a second
       punishment for the same offense.

Commonwealth v. Hunter, 468 A.2d 505, 507 (Pa. Super. 1983).

       Accordingly, Figueroa’s two to four month sentence for possession of

drug paraphernalia is separate and distinct from either sentence Figueroa

served pursuant to the revocation of his Pennsylvania or New York

____________________________________________


6
  We note that Figueroa was credited with 23 days of time served on the
instant sentence. See Sentencing Form, 6/12/2015.



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probations.   As such, he is not entitled to any offset from his current

sentence.

      Because we agree with counsel that Figueroa’s claims are frivolous and

he is not entitled to relief, the petition for leave to withdraw as counsel is

granted.

      Judgment of sentence affirmed. Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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