J. S02003/19
J. S02004/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA         :     IN THE SUPERIOR COURT OF
                                     :           PENNSYLVANIA
                  v.                 :
                                     :
THOMAS J. KOLLIAS,                   :         No. 2555 EDA 2018
                                     :
                       Appellant     :


      Appeal from the Judgment of Sentence Entered August 1, 2018,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0004967-2016



COMMONWEALTH OF PENNSYLVANIA         :     IN THE SUPERIOR COURT OF
                                     :           PENNSYLVANIA
                  v.                 :
                                     :
THOMAS KOLLIAS,                      :         No. 2606 EDA 2018
                                     :
                       Appellant     :


      Appeal from the Judgment of Sentence Entered August 1, 2018,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0003814-2016


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED APRIL 17, 2019

     In these related appeals, Thomas Kollias appeals from the August 1,

2018 judgments of sentence imposed following the revocation of his parole
J. S02003/19
J. S02004/19

and probation.1    Contemporaneously with this appeal, counsel has filed

petitions to withdraw and briefs in accordance with Anders v. California, 386

U.S. 738 (1967) and its progeny. After careful review, we grant counsel’s

petitions to withdraw and affirm the judgments of sentence.

      The trial court summarized the relevant facts and procedural history of

this case as follows:

            [Appellant] entered negotiated guilty pleas in
            [CP-23-CR-3814-2016 and CP-23-CR-4967-2016] on
            August 22, 2016. In Case Number 3814-2016[,
            appellant] pled guilty to retail theft and was sentenced
            to    time-served    to    twenty-three     months    of
            incarceration.     In Case Number 4967-2016[,
            appellant] pled guilty to driving under the influence, a
            “Tier three,” second offense.           [Appellant] was
            sentenced in that case to six to twenty-three months
            of incarceration and a consecutive term of three years
            of probation. The sentences imposed in each case
            were to be served concurrently.




1 Specifically, at CP-23-CR-4967-2016, the trial court revoked appellant’s
parole on retail theft, 18 Pa.C.S.A. § 3929(a)(1), and resentenced him to his
full back time of 604 days’ imprisonment. At CP-23-CR-3814-2016, the trial
court revoked appellant’s parole on one count of driving under the influence
(“DUI”), 75 Pa.C.S.A. § 3802(d)(2), and resentenced him to his full back time
of 528 days’ imprisonment and a consecutive three years of probation,
concurrent to his sentence imposed at CP-23-CR-4967-2016.


                                     -2-
J. S02003/19
J. S02004/19

            [On April 19, 2018, appellant was arrested on a new
            matter and following the issuance of a bench warrant,
            a Gagnon I hearing2 was held on May 3, 2018.]

            At a Gagnon II hearing on August 1, 2018
            [appellant] stipulated to notice of the hearing and to
            the violations alleged. The Court found [appellant] to
            be in violation of his probation and parole and
            sentenced him to full back[ ]time (528 days) and a
            consecutive term of three years of probation (Case
            Number 4967-2016) and full back[ ]time (604 days)
            (Case Number 3814-2016). These sentences are to
            be served concurrently.

Trial court opinion, 10/2/18 at 1-2 (citation to notes of testimony omitted;

footnotes added).

      Appellant neither objected to the sentences imposed during the

Gagnon II hearing nor filed any motions challenging the trial court’s decision.

On August 29, 2018, appellant filed timely notices of appeal in each matter at

Docket Nos. 2555 EDA 2018 and 2606 EDA 2018. The following day, the trial

court directed appellant to file a concise statement of errors complained of on



2In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Unites States Supreme
Court determined a two-step procedure was required before parole or
probation may be revoked:

            [A] parolee [or probationer] is entitled to two
            hearings, one a preliminary hearing [Gagnon I] at
            the time of his arrest and detention to determine
            whether there is probable cause to believe that he has
            committed a violation of his parole [or probation], and
            the other a somewhat more comprehensive hearing
            [Gagnon II] prior to the making of a final revocation
            decision.

Id. at 781-782.


                                     -3-
J. S02003/19
J. S02004/19

appeal, in accordance with Pa.R.A.P. 1925(b).          In lieu of a Rule 1925(b)

statement, counsel3 filed a statement of his intention to file Anders briefs, in

accordance with Rule 1925(c)(4). On October 2, 2018, the trial court filed its

Rule 1925(a) opinion. Thereafter, on November 19, 2018, appellant’s counsel

filed petitions and briefs to withdraw from representation. Appellant filed a

three-page, handwritten response to counsel’s petitions to withdraw on

December 12, 2018, wherein he argues that “the serving of the sentence of

incarceration is illegal” because he suffers from a mental illness. (“Pro se

response to Anders brief,” 12/12/18 at 1-2.)

        In both appeals, counsel raises the identical issue on appellant’s behalf:

              Was the [trial] court’s finding that [appellant] violated
              his probation and parole and imposition of the
              sentence of incarceration unreasonable because he
              suffers from a mental illness?

Anders briefs at 5.

        “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.

2010) (citation omitted). In order to withdraw pursuant to Anders, “counsel

must file a brief that meets the requirements established by our Supreme

Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).”

Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014) (parallel



3   At all relevant times, appellant was represented by J. Anthony Foltz, Esq.


                                        -4-
J. S02003/19
J. S02004/19

citation omitted). Specifically, counsel’s Anders brief must comply with the

following requisites:

            (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.

Id. (citation omitted).

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.

2005), and its progeny, “[c]ounsel also must provide a copy of the Anders

brief to his client.”     Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief

must be accompanied by a letter that advises the client of the option to

“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;

or (3) raise any points that the appellant deems worthy of the court[’]s

attention in addition to the points raised by counsel in the Anders brief.” Id.

“Once counsel has satisfied the above requirements, it is then this [c]ourt’s

duty to conduct its own review of the trial court’s proceedings and render an

independent judgment as to whether the appeal is, in fact, wholly frivolous.”




                                     -5-
J. S02003/19
J. S02004/19

Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super. 2007)

(en banc) (citation and internal quotation marks omitted).

      Instantly, we conclude that counsel has satisfied the technical

requirements of Anders and Santiago. Counsel has identified the pertinent

factual and procedural history and made citation to the record. Counsel has

also raised identical claims that could arguably support an appeal, but

ultimately concludes each appeal is wholly frivolous.         Counsel has also

attached to each of his petitions a letter to appellant, which meets the notice

requirements of Millisock.        Accordingly, we proceed to conduct an

independent review of the record to determine whether this appeal is wholly

frivolous.

      The crux of appellant’s claim is that his sentence of full back time on his

DUI and retail theft convictions following the revocation of his parole was

illegal because he suffers from mental illness. (Anders briefs at 10-12; see

also “Pro se response to Anders brief,” 12/12/18 at 1-2.) This claim fails.

             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



                                      -6-
J. S02003/19
J. S02004/19

           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, 290-291 (Pa.Super. 2008)

(citations omitted; emphasis added).

     Instantly, the record reflects that appellant pled guilty to retail theft and

DUI on August 22, 2016, and was sentenced to concurrent terms of

time-served to 23 months and 6 to 23 months’ imprisonment, to be followed

by a consecutive term of 3 years’ probation, respectively. Following technical

violations of his parole and subsequent arrest on new charges on April 19,



                                     -7-
J. S02003/19
J. S02004/19

2018, appellant proceeded to a Gagnon II hearing on August 1, 2018, and

his counsel stipulated on his behalf to the alleged violations.      (Notes of

testimony, 8/1/18 at 3.) The trial court concurred with the recommendation

of Adult Probation and Parole that continuing appellant’s parole was not a

viable means of rehabilitating him and deterring future antisocial conduct, and

that recommitment was in order. (Id. at 7-8.) Our review of the hearing

transcript further reveals that appellant acknowledged his understanding of

his appellate rights on the record and did not indicate in any way that he was

mentally incompetent to understand the proceedings. (Id. at 8.) As noted,

the trial court resentenced appellant to his full back time of 604 days’

imprisonment at CP-23-CR-4967-2016, and full back time of 528 days’

imprisonment and a consecutive 3 years’ probation at CP-23-CR-3814-2016,

concurrent to his sentence imposed at CP-23-CR-4967-2016.

      Appellant’s stipulation to parole violations, coupled with his new

convictions, were sufficient grounds for the trial court to revoke parole and

recommit him. See, e.g., Commonwealth v. Shimonvich, 858 A.2d 132,

135 (Pa.Super. 2004) (holding that appellant’s three new drug offenses

provided a sufficient basis for the trial court to revoke her parole from

sentences for forgery and conspiracy). In the case sub judice, the trial court

did exactly that — recommit him. There is no indication that the trial court

erred in doing so, and any claims to the contrary are wholly frivolous.




                                     -8-
J. S02003/19
J. S02004/19

     Based on the foregoing, and following our independent review of the

record, we find this appeal to be wholly frivolous and discern no additional

issues of arguable merit.    Accordingly, we grant counsel’s petitions to

withdraw and affirm the August 1, 2018 judgments of sentence.

     Judgments of sentence affirmed. Petitions to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/17/19




                                   -9-
