J-S05037-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
                  v.                     :
                                         :
SHAWN BUTLER,                            :
                                         :
                       Appellant         :    No. 2226 EDA 2013

       Appeal from the Judgment of Sentence Entered June 26, 2013
            in the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0002055-2009

BEFORE: ALLEN, STABILE, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 21, 2014

      Shawn Butler (Appellant) appeals from the judgment of sentence

entered on June 26, 2013, after the trial court revoked his parole and

sentenced him to 188 days of incarceration. In addition, Appellant’s counsel

has filed a petition to withdraw and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).       We affirm the judgment of sentence and grant the

petition to withdraw.

      This Court previously summarized this matter as follows.

            After a negotiated guilty plea on August 25, 2009,
         Appellant was convicted of [s]imple [a]ssault. He was
         sentenced to a term of three to twelve months, which was
         to be served on [e]lectronic [h]ome [m]onitoring.




* Retired Senior Judge assigned to the Superior Court
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            A Gagnon II[1] hearing was held on September 24,
         2010. At this hearing, Appellant was sentenced to his full
         back time of 273 days, but was granted immediate parole.

               1
                   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

             Subsequently, another bench warrant was issued. At
         the Gagnon II hearing held on June 26, 2013, Appellant
         stipulated to notice and violation, but contested the
         sentence. After argument by defense counsel, the Parole
         and Probation Officer, and the prosecutor, Appellant was
         sentenced to receive his full back time of 188 days of
         incarceration. He was ordered to be released upon his
         max date of December 10, 2013.

             During his Gagnon II hearing, Appellant was represented
      by John Baldini, Esquire. The record reflects that Attorney
      Baldini never withdrew as counsel for Appellant.         However,
      Attorney Baldini took no further action on Appellant’s behalf, and
      Appellant proceeded pro se. On July 9, 2013, Appellant filed a
      pro se motion for reconsideration of sentence. Appellant then
      timely filed a pro se notice of appeal on July 17, 2013. The trial
      court[’s] docket indicates that these pro se filings were not sent
      to Attorney Baldini, but were instead forwarded to Robert Marc
      Gamburg, Esquire, who is listed as Appellant’s attorney of
      record.    It does not appear from the certified record that
      Attorney Gamburg ever entered his appearance or filed anything
      for Appellant. Curiously, Appellant indicated in both of these pro
      se filings that he was represented by a third attorney, Walter
      Breslin, Esquire. However, like Attorney Gamburg, Attorney
      Breslin never entered his appearance or filed anything. On July
      29, 2013, the trial court ordered Appellant to file a concise
      statement of errors complained of on appeal pursuant to
      Pa.R.A.P. 1925. Appellant did not comply. The trial court then
      denied Appellant’s pro se motion for reconsideration of sentence
      on August 26, 2013.

Commonwealth v. Butler, No. 2226 EDA 2013, unpublished memorandum

at 1-3 (Pa. Super. filed March 3, 2014) (citation and footnote 2 omitted).

      On appeal, Appellant filed a pro se brief wherein he attempted to raise

a number of claims.      However, due the confused status of Appellant’s


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representation by counsel, this Court did not reach the merits of the issues

Appellant presented in his brief. Instead, this Court remanded the matter to

the trial court with instructions to hold a hearing within 60 days of March 3,

2014.

        More specifically, this Court asked the trial court to determine who, if

anyone, represents Appellant. The Court further directed the trial court as

follows.

        If Appellant remains represented, the trial court will assess

           (1) whether [Appellant’s attorney] wishes to withdraw and,
           if so, whether the trial court will permit such withdrawal;
           (2) whether Appellant wishes to proceed pro se; (3) if
           Appellant does wish to proceed pro se, to hold a colloquy
           to determine whether he knowingly and intelligently
           waives his right to counsel; (4) if [Appellant’s attorney] is
           permitted to withdraw and Appellant does not wish to
           proceed pro se, to determine whether Appellant is eligible
           for court appointed counsel on direct appeal and to appoint
           counsel if appropriate.

        Further, the trial court shall instruct counsel, or Appellant if he
        chooses to proceed pro se, to file a Rule 1925 statement. The
        trial court shall then file a supplemental opinion.

Id. at 4-5 (citation and footnote omitted).

        According to the trial court, it held

        a hearing on March 27, 2014, to determine if Appellant wished to
        proceed pro se or have counsel appointed. [Appellant] told the
        [trial court that] he did not want to proceed pro se and wanted
        counsel to be appointed to assist him. [The trial court] filed an
        order in open court directing the Office of the Public Defender to
        represent [Appellant] for purposes of appeal.

              On March 31, 2014, the Delaware County Office of the
        Public Defender entered its appearance. [The trial court] issued


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      a 1925(b) [o]rder on March 31, 2014. On April 17, 2014,
      counsel for [Appellant] filed a statement of his intent to file an
      Anders brief. [The trial court then filed an opinion.]

Trial Court Opinion, 6/11/2014, at 2-3.     Appellant’s counsel subsequently

filed in this Court a petition to withdraw his representation of Appellant and

an Anders brief.

      While the trial court did not follow the remand procedure this Court

outlined in its March 3, 2014 memorandum, we nonetheless can resolve this

matter. The following principles guide our review.

      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 pro se or raise any
      additional points worthy of this Court's attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate's brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).



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      Our Supreme Court has clarified portions of the Anders procedure:

      Accordingly, we hold that in the Anders brief that accompanies
      court-appointed counsel’s petition to withdraw, counsel 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.

      We find that counsel has complied substantially with the requirements

of Anders and Santiago.        We, therefore, will undertake a review of the

appeal to determine if it is wholly frivolous.

      Counsel has presented this Court with one issue that he believes would

arguably support this appeal, namely, “Whether the sentence of full back

time (1[8]8 days) was harsh and excessive under the circumstances?”

Anders Brief at 1 (italics omitted).

            Unlike a probation revocation, a parole revocation does not
      involve the imposition of a new sentence. Indeed, there is no
      authority for a parole-revocation court to impose a new penalty.
      Rather, the only option for a court that decides to revoke parole
      is to recommit the defendant to serve the already-imposed,
      original sentence. At some point thereafter, the defendant may
      again be paroled.

            Therefore, the purposes of a court’s parole-revocation
      hearing—the revocation court’s tasks—are to 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. The Commonwealth must prove
      the violation by a preponderance of the evidence and, once it


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      does so, the decision to revoke parole is a matter for the court’s
      discretion. In the exercise of that discretion, a conviction for a
      new crime is a legally sufficient basis to revoke parole.

            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.
      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.

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)

(citations and footnote omitted).

      Here, because Appellant admitted that he violated his parole by

committing another crime, any challenge to the trial court’s decision to

revoke Appellant’s parole would be frivolous. Moreover, as the above-cited

case law makes clear, any claim that Appellant’s sentence is harsh and

excessive is frivolous, as the court was bound to sentence Appellant as it

did. Because we agree with counsel that this appeal is frivolous, we grant

counsel’s petition to withdraw and 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: 10/21/2014




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