J-S35044-19
J-S35045-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellee               :
                                         :
          v.                             :
                                         :
TETHELMA WILLIM TOLBERT,                 :
                                         :
                  Appellant              :     No. 103 EDA 2019

     Appeal from the Judgment of Sentence Entered November 28, 2018
              in the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0000044-2017

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellee               :
                                         :
          v.                             :
                                         :
TETHELMA WILLIM TOLBERT,                 :
                                         :
                  Appellant              :     No. 109 EDA 2019

     Appeal from the Judgment of Sentence Entered November 28, 2018
              in the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0005507-2017

BEFORE:        OLSON, J., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED AUGUST 27, 2019

      Tethelma Willim Tolbert (Appellant) appeals from the judgment of

sentence entered on November 28, 2018, following the revocation of her

probation and parole at two separate docket numbers.1 Appellant’s counsel


1 Appellant filed two separate notices of appeal. Because these cases are
interrelated and the issue identified in each appal is identical, we consolidate
(Footnote Continued Next Page)

*Retired Senior Judge assigned to the Superior Court.
J-S35044-19
J-S35045-19

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). Upon review, we affirm the judgment of sentence and

grant counsel’s petition to withdraw.

      We provide the following background. At Docket 44 of 2017, Appellant

pleaded guilty to terroristic threats and was sentenced to time served to 23

months of incarceration, followed by one year of probation. At Docket 5507

of 2017, Appellant pleaded nolo contendere to disorderly conduct and was

sentenced to time served to 12 months of incarceration.

      On November 28 2018, Appellant appeared for a Gagnon II2 hearing

regarding potential revocation of her probation and parole at Docket 44 of

2017 and her parole at Docket 5507 of 2017. The alleged violations were

Appellant’s new conviction and a technical violation for failure to make

(Footnote Continued)   _______________________

the appeals. See Pa.R.A.P. 513 (“Where there is more than one appeal from
the same order, or where the same question is involved in two or more
appeals in different cases, the appellate court may, in its discretion, order
them to be argued together in all particulars as if but a single appeal.”).
2

      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. 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) (citations
omitted).

                                                 -2-
J-S35044-19
J-S35045-19

meaningful payments towards her costs and fines. The trial court revoked

Appellant’s probation and parole at Docket 44 of 2017, and, consistent with

the recommendation of the Office of Adult Probation and Parole, sentenced

her to back time of 500 days of incarceration, with parole after three

months, followed by one year of probation.      The trial court also revoked

Appellant’s parole at Docket 5507 of 2017 and sentenced her to back time of

236 days of incarceration, with parole after three months, to be served

concurrent with the period of incarceration imposed at Docket 44 of 2017.

      Appellant did not file a post-sentence motion. This timely-filed appeal

followed.3 In this Court, Appellant’s counsel filed both an Anders brief and

a petition to withdraw as counsel. Accordingly, the following principles guide

our review of this matter.

             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

3 Counsel filed a statement of intent to file an Anders brief, consistent with
Pa.R.A.P. 1925(c)(4). In response, the trial court transmitted the record to
this Court in lieu of a substantive Pa.R.A.P. 1925(a) opinion.

                                    -3-
J-S35044-19
J-S35045-19

        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 …. 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 and unnecessary capitalization omitted). Our Supreme Court has

clarified portions of the Anders procedure as follows.

        [I]n 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.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied substantially with the

technical requirements set forth above.4 We first consider the issue raised

by counsel, and then have the 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.”




4   Appellant has not filed a response to counsel’s motion.

                                        -4-
J-S35044-19
J-S35045-19


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

banc).

      The sole issue arguably supporting an appeal cited by Appellant’s

counsel is whether the trial court abused its discretion in sentencing

Appellant to an excessive aggregate sentence of incarceration for her parole

violations.5   Specifically, Appellant contends that she should have been

sentenced to immediate parole in light of her anxiety and need to care for

her children. Anders Brief at 3, 7. We agree with counsel that such a claim

is frivolous, but for different reasons.

      A discretionary-aspects-of-sentencing claim is not a cognizable claim

following a parole revocation because an “order revoking parole does not

impose a new sentence; it requires appellant, rather, to serve the balance of

a valid sentence previously imposed.”        Commonwealth v. Mitchell, 632

A.2d 934, 936 (Pa. Super. 1993) (citation omitted). “The power of the court

after a finding of violation of parole in cases not under the control of the

State Board of Parole is to recommit to jail[.] There is no authority for

giving a new sentence with a minimum and maximum.” Id. (citations and

quotation marks omitted).

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


5 Appellant does not challenge her probation violation sentence of one year
of probation.    Rather, she is only concerned with her sentences of
incarceration, which resulted from her parole violations.

                                       -5-
J-S35044-19
J-S35045-19

      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, 291 (Pa. Super. 2008)

(citations omitted).

      Because Appellant’s purported attack on the discretionary aspects of

her parole revocation sentence is not a cognizable claim, it is wholly

frivolous. See id. at 292-93. The sole issue that Appellant could potentially

raise regarding her parole revocation sentence “is whether the trial court

erred, as a matter of law, in revoking [her] parole and committing [her] to a

term of total confinement. In order to support a revocation of parole, the

Commonwealth need only show, by a preponderance of the evidence, that a

parolee violated [her] parole.” Mitchell, 632 A.2d at 936.

      While the record before us does not contain details of Appellant’s new

conviction, the Gagnon II hearing transcript confirms that Appellant was

convicted in a new case and sentenced to a term of incarceration of time

served to 23 months. See N.T., 11/28/2018, at 6. The trial court revoked

Appellant’s parole based upon this new conviction and a technical violation.

Because a new conviction is sufficient grounds for the trial court to revoke

parole and recommit Appellant, any claim challenging her parole revocation

is likewise wholly frivolous. Kalichak, 943 A.2d at 293.

                                    -6-
J-S35044-19
J-S35045-19


     Based upon the foregoing, we agree with counsel that a challenge to

Appellant’s sentences of incarceration following her parole revocations is

frivolous. Moreover, we have conducted “a simple review of the record” and

have found no “arguably meritorious issues that counsel, intentionally or

not, missed or misstated.” Dempster, 187 A.3d at 272.       Accordingly, we

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

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/19




                                    -7-
