J-S81013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    GARY LEE ROSE

                             Appellant                No. 1024 MDA 2018


         Appeal from the Judgment of Sentence imposed May 29, 2018
              In the Court of Common Pleas of Lycoming County
               Criminal Division at No: CP-41-CR-0001072-2012


BEFORE: STABILE, J., DUBOW, J., and STEVENS,* P.J.E.

MEMORANDUM BY STABILE, J.:                            FILED MARCH 22, 2019

        Appellant, Gary Lee Rose, appeals from a judgment of sentence of six

to twenty-four months’ imprisonment in a state correctional institution

imposed following revocation of his probation for theft by deception.1

Appellant's counsel has filed a petition to withdraw, alleging that this appeal

is wholly frivolous, as well as a brief pursuant to Anders v. California, 386

U.S. 738 (1967). We grant counsel leave to withdraw and affirm Appellant’s

judgment of sentence.

        The trial court summarized the history of this case as follows:

        [A]ppellant stole checks from his mother. He wrote several checks
        out to himself and his paramour wrote several checks out to
        herself. The Commonwealth charged the appellant with numerous
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 3922.
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       counts of forgery, theft by deception and receiving stolen
       property. On November 2, 2012, the appellant pled guilty to a
       consolidated count of theft by deception, graded as a
       misdemeanor of the first degree, and the court sentenced him to
       two years’ probation under the supervision of the Pennsylvania
       Board of Probation and Parole (PBPP) consecutive to all of the
       sentences the appellant was serving.2

       The appellant was charged with a new criminal offense of bad
       checks. To keep the appellant on the street while his new charge
       was pending, the appellant was placed on a GPS monitor on
       August 4, 2017, as part of his conditions of his supervision. The
       appellant, however, failed to properly charge his GPS unit as
       instructed. To ensure that the appellant was properly charging
       his monitor, on November 15, 2017, his probation officer, Agent
       Joshua Kreiger, directed the appellant to report daily to charge his
       monitor in the lobby of the PBPP district office. Agent Kreiger
       advised the appellant of this requirement in person and in writing
       on form PBPP 348, which the appellant signed . . . The appellant
       reported as directed on November 16, 2017, but did not report
       thereafter. On November 29, 2017, Agent Kreiger called the
       appellant and told him to report on November 30, 2017 at 9:00
       a.m. to charge his GPS monitor. Not only did the appellant fail to
       report as directed, he cut off his GPS unit. On December 1, 2017,
       Agent Kreiger recovered the cut GPS unit in the parking lot of Van
       Campen Motors. Agent Kreiger attempted to contact the appellant
       at his residence, but he was not there and his paramour did not
       know where he was. On December 6, 2017, the court issued a
       bench warrant for the appellant’s arrest for absconding from
       supervision. The appellant was arrested on the bench warrant on
       or about January 24, 2018.

       The appellant’s final probation violation hearing was held on May
       29, 2018. Following that hearing, the court found that the
       appellant violated several conditions of his supervision. The court
       revoked the appellant’s probation and resentenced him to serve


____________________________________________


2 Due to Appellant’s other sentences, his sentence of probation in the present
case was not set to commence until December 6, 2018. Nevertheless, the
trial court had the power to revoke his probation for a violation that occurred
after he was sentenced but before his probation commenced.
Commonwealth v. Ware, 737 A.2d 251, 253-54 (Pa. Super. 1999).

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      six to twenty-four months' incarceration in a state correctional
      institution.

      On June 7, 2018, the appellant, who remained represented by
      counsel, filed a pro se motion to modify sentence and post-
      sentence motion. In accordance with [Pa.R.Crim.P.] 576, the
      court directed the clerk of courts to forward the motion to the
      district attorney and the appellant’s counsel, and no action was
      taken on the appellant’s pro se filing. Counsel did not file any
      motions challenging the appellant’s sentence.

      On June 22, 2018, the appellant filed a notice of appeal. The sole
      issue asserted in this appeal is that the trial court abused its
      discretion when imposing a probation violation resentencing of 6-
      24 months’ incarceration in SCI Camp Hill. The appellant averred
      that the court should have imposed a county sentence of 6-12
      months’ [imprisonment] as specified in his letter to the court
      dated June 4, 2018.

Pa.R.A.P. 1925(a) Opinion, 9/28/18, at 1-3. The trial court reasoned that a

state sentence was appropriate because “it made no sense to impose a county

sentence in this case . . . The appellant was on state parole at the time and

was not scheduled to begin his probation until December 2018. The appellant

was facing the possibility of additional time in a state correctional institution

for violating his state parole.” Id. at 4. Moreover, Appellant claimed during

his revocation hearing that he suffered from paranoid schizophrenia.         The

court responded that he could receive treatment for mental health issues in

state prison but not in county prison. Id. at 4-5.

      On November 5, 2018, counsel for Appellant filed an Anders brief in

this Court.   On November 19, 2018, counsel filed a petition for leave to

withdraw as counsel. The Anders brief raised two issues:




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      I. Did the trial court abuse its discretion when imposing a re-
      sentence of six (6) to twenty-four months’ (24) incarceration in a
      state correctional institution?

      II. Should an application to withdraw as counsel be granted where
      counsel has investigated the possible grounds of appeal and finds
      the appeal frivolous?

Anders Brief at 4.

      Preliminarily, we note that Appellant’s pro se post-sentence motion was

a legal nullity that did not toll the thirty-day appeal period because he was

represented by counsel at the time of filing. Commonwealth v. Ali, 10 A.3d

282, 293 (Pa. 2012). Appellant also filed his notice of appeal pro se even

though trial counsel was representing him at that time. This misstep is not

fatal to Appellant's appeal, because “this Court is required to docket a pro se

notice of appeal despite Appellant being represented by counsel[.]”

Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016).

      When, as here, counsel files an Anders brief, we may not review the

merits of the underlying issues without first examining counsel's petition to

withdraw.   Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). Counsel must satisfy three procedural requirements when

seeking leave to withdraw: she must (1) petition the court for leave to

withdraw stating that, after making a conscientious examination of the record,

she has determined that the appeal would be frivolous; (2) provide a copy of

the brief to the defendant; and (3) advise the defendant that he has the right

to retain private counsel, proceed pro se or raise additional arguments that


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the defendant considers worthy of the court’s addition. Commonwealth v.

Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

      Here, counsel’s petition to withdraw enclosed her letter to Appellant

advising that she was seeking permission to withdraw and providing Appellant

with copies of the petition to withdraw and her Anders brief. Counsel asserted

in her petition that she reviewed the record and concluded that the appeal is

frivolous. Finally, her letter to Appellant notified him of his right to retain new

counsel, proceed pro se, or raise any additional points he deemed worthy of

this Court's attention.    Accordingly, counsel satisfied Anders’ procedural

requirements.

      Next, we address whether counsel’s Anders brief complies with the

substantive requirements of Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2007), which held that an Anders 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. Id. at 361. The Anders

brief must also 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. Id.

      Here, counsel included a statement of the case, including its procedural

history. Anders Brief at 5-7. Counsel also stated that she carefully reviewed


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the record but could not find any meritorious issues. Lastly, she explained

that the appeal was frivolous. Appellant insisted that his sentence of 6-24

months’ imprisonment in state prison was excessive. Counsel pointed out that

it was well within the trial court’s discretion to revoke Appellant’s probation

for violating conditions of probationary supervision and to sentence him to

state prison so that he could obtain treatment for his mental health condition.

Thus, counsel satisfied the substantive requirements for a petition to

withdraw.

      We turn to the substantive issue raised in the Anders brief: whether

Appellant’s sentence of 6-24 months’ imprisonment in state prison was

excessive. We hold that this sentence was a proper exercise of the trial court’s

discretion, since it was well within the five-year maximum for theft by

deception and afforded Appellant the mental health treatment that he claimed

to need.

      Aside from this issue, we must review the record for any other

potentially non-frivolous issues. Commonwealth v. Dempster, 187 A.3d

266, 271 (Pa. Super. 2018) (en banc). Having carefully reviewed the record,

we find no other potentially non-frivolous issues. We therefore grant counsel’s

petition to withdraw and affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2019




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