J-S12038-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                      Appellee             :
                                           :
                      v.                   :
                                           :
VINCENT ROMEO,                             :
                                           :
                       Appellant           :     No. 1697 EDA 2015

              Appeal from the Judgment of Sentence May 6, 2015,
               in the Court of Common Pleas of Delaware County,
              Criminal Division, at No(s): CP-23-CR-0004247-2013

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                      Appellee             :
                                           :
                      v.                   :
                                           :
VINCENT ROMEO,                             :
                                           :
                       Appellant           :     No. 1699 EDA 2015

              Appeal from the Judgment of Sentence May 6, 2015,
               in the Court of Common Pleas of Delaware County,
              Criminal Division, at No(s): CP-23-CR-0005445-2013

BEFORE:       MUNDY, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED March 21, 2016

        Vincent Romeo (Appellant) appeals from the judgments of sentence

entered following the revocation of his probation and parole.1 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.

1
    This Court consolidated the appeals by order dated July 28, 2015.


*Retired Senior Judge assigned to the Superior Court.
J-S12038-16


Santiago, 978 A.2d 349 (Pa. 2009).             We grant counsel’s petition to

withdraw and affirm Appellant’s judgments of sentence.

        On September 9, 2013, Appellant entered a negotiated guilty plea to

one count of possession of a controlled substance at docket number CP-23-

CR-0004247-2013 (4247-2013), and one count of possession of a controlled

substance at docket number CP-23-CR-0005445-2013 (5445-2013).              At

docket number 4247-2013, Appellant was sentenced to time served to one

year of incarceration and placed on immediate parole, and at docket number

5445-2013, he was sentenced to a consecutive term of six months of

probation.     On August 27, 2014, Appellant was found in violation of his

probation and parole and was resentenced to serve backtime of 254 days at

docket number 4247-2013 and a consecutive term of six months of

probation at docket number 5445-2013.

        Appellant was eventually re-paroled, but at a Gagnon II hearing2 held

on May 6, 2015, Appellant stipulated that he again was in violation of his

probation and parole.3      Appellant was sentenced to serve backtime of 69

days at docket number 4247-2013, followed by a term of 11½ to 23 months


2
  “A Gagnon I hearing is a pre-revocation hearing to determine if probable
cause exists that a violation was committed. After this determination is
made, a Gagnon II hearing is conducted where the Commonwealth is
required to establish that the defendant did violate his parole/probation.”
Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa. Super. 2011); see
also Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3
    It appears Appellant’s violations were technical in nature.


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of incarceration at docket number 5445-2013.        This consolidated appeal

followed.

      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
      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).

      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



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        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 substantially complied with the

above requirements.4      Once “counsel has met these 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.’” Commonwealth v. Flowers, 113

A.3d 1246, 1248 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354

n.5).

        Counsel presents one issue that arguably supports this appeal:

“Whether the aggregate sentence imposed on [Appellant] is harsh and

excessive under the circumstances?” Anders Brief at 2. This issue presents

a challenge to the discretionary aspects of Appellant’s sentence.

        Preliminarily, we note the following with respect to Appellant’s

sentence imposed at docket number 4247-2013 following the revocation of

his parole:


4
    Appellant has not responded to counsel’s petition to withdraw.



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     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
     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). Thus, to the extent that Appellant’s claim

challenges the excessiveness of his sentence imposed based on his parole




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violation, it is frivolous. See id. at 292-93 (concluding that the appellant’s

claim that his recommitment following his parole revocation was “harsh and

excessive in light of his circumstances” was “wholly frivolous” because the

“claim is a purported attack on the discretionary aspects of a sentence,”

which the appellant “has no right to raise,” as “[i]t is not a proper attack on

a parole revocation”).

      Regarding    Appellant’s   sentence    imposed        at   docket   5445-2013

following the revocation of his probation, we observe that it is within this

Court’s scope of review to consider challenges to the discretionary aspects of

an appellant’s sentence in an appeal following a revocation of probation.

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006). An

appellant challenging the discretionary aspects of his sentence must invoke

this Court’s jurisdiction by satisfying a four-part test.

      We conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).

      Appellant timely filed notices of appeal. Although Appellant did not file

a post-sentence motion at either docket number, he arguably preserved his




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claim at sentencing.5     Further, the Anders brief does contain a 2119(f)

statement.    Thus, we now consider whether Appellant has raised a

substantial question for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted).



5
  The following exchange occurred at the conclusion of the May 6, 2015
hearing:

      [Appellant]: Yes, so that’s -- I got to do 11½ months after the
                   69 days?

      [Appellant’s Counsel]: Yes.

      [Appellant]: Oh man. And I have the right to appeal this?

      [Appellant’s Counsel]: Yes.

      [Appellant]: I would like to do that.

     The Court: You’re welcome to your appeal, sir, this matter is
                over.

N.T., 5/6/2015, at 6-7.



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      In the 2119(f) statement, counsel represents that he “believes that an

issue of arguable merit exists as to whether the aggregate sentence is harsh

and excessive under the circumstances since these cases involved only

misdemeanors.”     Anders Brief at 5.     Assuming arguendo that this claim

raises a substantial question, we bear the following in mind.

         The imposition of sentence following the revocation of
         probation is vested within the sound discretion of the trial
         court, which, absent an abuse of that discretion, will not be
         disturbed on appeal. An abuse of discretion is more than
         an error in judgment—a sentencing court has not abused
         its discretion unless the record discloses that the judgment
         exercised was manifestly unreasonable, or the result of
         partiality, prejudice, bias or ill-will.

         In determining whether a sentence is manifestly excessive,
         the appellate court must give great weight to the
         sentencing court’s discretion, as he or she is in the best
         position to measure factors such as the nature of the
         crime, the defendant’s character, and the defendant’s
         display of remorse, defiance, or indifference.

            Upon revoking probation, a sentencing court may choose
      from any of the sentencing options that existed at the time of
      the original sentencing, including incarceration. [U]pon
      revocation [of probation] ... the trial court is limited only by the
      maximum sentence that it could have imposed originally at the
      time of the probationary sentence. However, 42 Pa.C.S.[]
      § 9771(c) provides that once probation has been revoked, a
      sentence of total confinement may only be imposed if any of the
      following conditions exist[s]:

         (1) the defendant has been convicted of another crime; or

         (2) the conduct of the defendant indicates that it is likely
         that he will commit another crime if he is not imprisoned;
         or




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         (3) such a sentence is essential to vindicate the authority
         of the court.

            In addition, in all cases where the court resentences an
      offender following revocation of probation ... the court shall
      make as a part of the record, and disclose in open court at the
      time of sentencing, a statement of the reason or reasons for the
      sentence imposed [and] [f]ailure to comply with these provisions
      shall be grounds for vacating the sentence or resentence and
      resentencing the defendant. A trial court need not undertake a
      lengthy discourse for its reasons for imposing a sentence or
      specifically reference the statute in question, but the record as a
      whole must reflect the sentencing court’s consideration of the
      facts of the crime and character of the offender.

Commonwealth v. Colon, 102 A.3d 1033, 1043-44 (Pa. Super. 2014)

(citations and quotation marks omitted). Finally, we note that “[t]echnical

violations can support revocation and a sentence of incarceration when such

violations are flagrant and indicate an inability to reform.” Commonwealth

v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007).

      Upon review, we discern no abuse of discretion in the revocation

court’s decision to impose a consecutive term of 11½ to 23 months of

incarceration as a result of Appellant’s probation violation. 6 The revocation

court adopted the recommendation of the Office of Adult Probation and

Parole in sentencing Appellant and, in support of its sentence, explained that

Appellant “has a continuing history of non-compliance by failing to report,

failing to enter into treatment and fail[ing] to make payment towards fines

6
  In so doing, we stress that “[a]n abuse of discretion may not be found
merely because an appellate court might have reached a different
conclusion” than that reached by the trial court. Commonwealth v. Perry,
32 A.3d 232, 236 (Pa. 2011).


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and costs.”    N.T., 5/6/2015, at 5.         The record demonstrates that the

revocation court reasonably concluded that probation was ineffective in

rehabilitating Appellant and that total confinement was necessary to

vindicate the authority of the court.

      Based on the foregoing, we agree with counsel that Appellant’s

challenge to the discretionary aspects of his sentence is frivolous. Moreover,

we have conducted “a full examination of the proceedings” and conclude that

“the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248. Thus,

we affirm the judgments of sentence and grant counsel’s petition to

withdraw.

      Judgments of sentence affirmed. Petition to withdraw granted.

      Judge Olson joins.

      Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/21/2016




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