J-S12016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ENRIQUE HERNANDEZ

                            Appellant                     No. 1314 MDA 2016


             Appeal from the Judgment of Sentence June 26, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001097-2013


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                    FILED APRIL 27, 2017

        Enrique Hernandez appeals from the judgment of sentence imposed on

June 27, 2016, in the Court of Common Pleas of Lancaster County, following

revocation of his sentence of State Intermediate Punishment (SIP).1

Hernandez had pled guilty to three counts of delivery of a controlled

substance (heroin), and one count each of possession with intent to deliver a

controlled substance (heroin) and criminal use of a communication facility.2

He received an aggregate sentence of four to nine years’ incarceration

followed by two years of probation.            Counsel has filed an Anders3 brief,
____________________________________________


1
 Hernandez’s original sentence was two years of SIP followed by three years
of probation.
2
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 7512(a), respectively.
3
    Anders v. California, 386 U.S. 738 (1967).
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asserting all issues are frivolous.4           Concurrent with the Anders brief,

counsel has also filed a motion to withdraw as counsel.            In this timely

appeal, Hernandez raises one issue: he seeks credit for the correct amount

of time served to his sentence.           After a thorough review of Hernandez’s

appellant’s brief,5 relevant law, and the certified record, we grant counsel’s

motion to withdraw and affirm the judgment of sentence.

        As stated above, Hernandez pled guilty to a variety of drug charges

and was initially sentenced to a term of SIP, a portion of which included drug

rehabilitation/treatment.        However, Hernandez failed to complete that

sentence and was expelled from the program.6

        Subsequently, on June 27, 2016, Hernandez was sentenced to a term

of four to nine years’ incarceration, followed by two years of probation.

Although the trial judge instructed that Hernandez be credited with a certain

amount of time served, Hernandez believed he was not credited with all the

time to which he was entitled.          Accordingly, on July 26, 2016, Hernandez

filed a pro se notice of appeal.         Following an October 2, 2016,   Grazier7
____________________________________________


4
  In addition, counsel has identified two possible issues of ineffective
assistance of trial counsel, and another issue regarding RRRI eligibility. We
will briefly discuss the last issue in the decision.
5
    The Commonwealth did not submit a brief.
6
  The certified record before us is silent as to why Hernandez was expelled
from the SIP program.
7
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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hearing, counsel was appointed.       On October 25, 2016, counsel filed a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal, claiming the

trial court had insufficiently specified the time credit dates. Independently,

the Department of Corrections discovered the error and corrected it.

      Subsequently, counsel filed a petition to correct the record and a

request to file a statement of intent to file an Anders brief. The trial court

issued an order directing the record reflect the time issue had been

corrected. Counsel then filed the statement of intent to file an Anders brief.

In this court, counsel has filed an Anders brief, indicating the time credit

issue had been resolved, and mentioning other possible issues.

      We are guided by the following principles:

         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

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         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:

         [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.
      [Commonwealth v.] Santiago, 978 A.2d [349] at 361 [(Pa.
      2009)].

Commonwealth v. Tukhi, 149 A.3d 881, 885-86 (Pa. Super. 2016).

      Our review of counsel’s petition leads us to conclude that counsel has

complied with the technical requirements recited above.      Our independent

review of the record leads to the conclusion that the appeal is wholly

frivolous.

      Initially, Hernandez’s sole concern was to obtain full credit for time

served against his sentence.    The certified record confirms the record has

been corrected and Hernandez has been appropriately credited with time

served. Because the issue has been resolved, this aspect of the appeal is

indeed wholly frivolous.




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        In addition to the one issue Hernandez wanted addressed, counsel also

addressed Hernandez’s RRRI8 ineligibility. Counsel appropriately noted that

Hernandez was convicted in New York, in 1985, of assault with intent to

cause serious injury, thereby disqualifying Hernandez from the RRRI

program.       See     61   Pa.C.S.     §      4503   Definitions   (Eligible   Offender).

Accordingly, any challenge to RRRI ineligibility would be wholly frivolous.

        Finally, counsel reported that any challenge to Hernandez’s removal

from the SIP program, or challenge to the discretionary aspects of his

sentence were waived by the failure to raise a timely objection or to file a

post-sentence motion.         Accordingly, any such claim can only be raised

through the Post Conviction Relief Act.9

        Because the certified record amply supports counsel’s assertion that all

issues are wholly frivolous, Hernandez is not entitled to any additional relief.

        Motion to withdraw as counsel is granted.               Judgment of sentence

affirmed.




____________________________________________


8
    Recidivism Risk Reduction Incentive, 61 Pa.C.S. § 4501, et seq.
9
  We note that counsel does not suggest any actual problems in either of
these areas. Rather he simply noted two issues that are often raised on
appeal, and why they cannot be raised instantly.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2017




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