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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA

                  v.


    FREDERICK REDDITT

                         Appellant             :   No. 1660 MDA 2018

         Appeal from the Judgment of Sentence Entered August 3, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0000564-2018


BEFORE:       OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.:                                  FILED JULY 31, 2019

        Appellant, Frederick Redditt, appeals from the judgment of sentence

entered on August 3, 2018, as made final by the denial of        a   post -sentence

motion on August 15, 2018. On appeal, Appellant's counsel filed        a   petition to

withdraw as counsel and accompanying brief pursuant to Anders v.

California, 386        U.S. 738 (1967) and   Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).         We conclude that Appellant's counsel complied with

the procedural requirements necessary to withdraw.            Furthermore, after

independently reviewing the record, we conclude that the appeal             is   wholly

frivolous. We therefore grant counsel's application to withdraw and affirm the

judgment of sentence.
        Per the affidavit of probable cause, Appellant, on October 10, 2017, was

involved in   a   hit and run motor vehicle accident. Police arrived at the scene

of the accident after emergency medical services transported Appellant to the


      Retired Senior Judge assigned to the Superior Court.
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hospital. Officer William Pletcher of the Reading Police Department met with

Appellant at the hospital, where he consented to              a    blood draw. The toxicology

report indicated that Appellant had Delta -9 THC and its metabolites in his

blood and   a   blood alcohol content ("BAC") of .014%.

        On August 3, 2018, Appellant pled            guilty   in the Court of Common Pleas

of Berks County to driving under the influence of              a   controlled substance      - first
offense ("DUI"),1 and driving with        a   controlled substance or its metabolites in

the blood while operating privilege is suspended or revoked ("DUS").2 The

trial court sentenced Appellant to             a   term of three days to six months'

imprisonment on the DUI charge and            a    concurrent term of 90 days on the DUS

charge, with credit for 134 days of time served.

        On August 10, 2018, Appellant filed a post -sentence motion asking the

trial court to vacate his sentence and re -sentence him                             as   a   court

"not -of -record" for the purpose of avoiding           a   state parole violation under 61

Pa.C.S.A.   §   6138(a)(1).3 The trial court denied the post -sentence motion on



1   75 Pa.C.S.A.   §   3802(d)(2).

2   75 Pa.C.S.A.   §   1543(b)(1.1)(i).

3 "A parolee under the jurisdiction of the [parole] board released from a
correctional facility who, during the period of parole or while delinquent on
parole, commits a crime punishable by imprisonment, for which the parolee is
convicted or found guilty by a judge or jury or to which the parolee pleads
guilty or nolo contendere at any time thereafter in                        a   court of record,
may at the discretion of the board be recommitted as                   a   parole violator." 61
Pa.C.S.A. § 6138(a)(1) (emphasis added).


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August 15, 2018.            On October 2, 2018, the      trial court granted Appellant's

petition to file   a    notice of appeal nunc pro tunc.4 Appellant filed      a   notice of

appeal on October 3, 2018.             On October 9, 2018, the trial court ordered

Appellant to file      a   concise statement of matters complained of on appeal. In

response, on October 18, 2018, Appellant's counsel from the Berks County

Office of the          Public   Defender filed   a   statement of intent to file an

Anders/McClendon brief pursuant to               Pa.R.A.P. 1925(c)(4).     On December

17, 2018, counsel filed an        Anders brief and   a   petition to withdraw as counsel.

This Court denied counsel's petition to withdraw for failure to comply with our

procedural requirements5 and remanded the case for further proceedings in                a


memorandum filed April 26, 2019.

        On   return from remand, counsel furnished the missing notes of

testimony to complete the record and, once again, filed an Anders brief and




4  Because the trial court denied Appellant's post -sentence motion on August
15, 2018, Appellant had 30 days-until September 14, 2018-to file a notice
of appeal; since Appellant failed to do so, his judgment of sentence became
final on September 17, 2018. Appellant's plea counsel withdrew on August
29, 2018, and the court appointed the Berks County Office of the Public
Defender to represent Appellant in his appeal. On September 26, 2018,
counsel filed a petition to file a notice of appeal nunc pro tunc.

5 Counsel failed to order and review the transcripts of the two hearings that
took place in this matter, and, as such, we found that she failed to fulfill her
obligation for withdrawal. See Commonwealth v. Redditt, 1660 MDA 2018
(Pa. Super. 2019) (unpublished memorandum).

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a    petition to withdraw as counsel. Appellant's counsel raises one issue in her

Anders brief.
         Whether the trial court erred when it denied Appellant's motion to
         vacate sentence and be re -sentenced in a court not -of -record so
         the effects of the new conviction would not result in a state parole
         violation[?]

Amended Anders Brief at 6.

         Before reviewing the merits of this appeal, we must determine whether

counsel has fulfilled the necessary procedural requirements for withdrawing

as counsel. See     Commonwealth v. Blauser, 166 A.3d 428, 431              (Pa. Super.

2017) (citation omitted).

         To be permitted to withdraw pursuant to     Anders, counsel must:
         (1) petition the court for leave to withdraw stating that after
         making a conscientious examination of the record it has been
         determined that the appeal would be frivolous; (2) file a brief
         referring to anything that might arguably support the appeal, but
         which does not resemble a "no merit" letter or amicus curiae brief;
         and (3) furnish a copy of the brief to the defendant and advise
         him of his right to retain new counsel or raise any additional points
         that he deems worthy of the court's attention.              If these
         requirements are met, the Court may then evaluate the record to
         determine whether the appeal is frivolous.
Commonwealth v. McBride, 957 A.2d 752, 756                (Pa. Super. 2008) (citations

omitted). In the Anders brief, "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."            Commonwealth v.



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Santiago, 978 A.2d 349, 361      (Pa. 2009).6     If counsel meets   all of the above

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.

Santiago, 978 A.2d 349, 355 n.5     (Pa. 2009), quoting     McClendon, 434 A.2d

at 1187. Counsel substantially complied with these procedural requirements,

thus, we review Appellant's claim on the merits.

        Appellant contends that it was error for the trial court to deny his

post -sentence motion to vacate his sentence and be re -sentenced in          a    court

not -of -record. Appellant pled guilty to   a   summary offense and an ungraded

misdemeanor in the Court of Common Pleas of Berks County. To understand

Appellant's argument, it is important to understand the following.

        In Pennsylvania, courts of common pleas are generally courts of record,

whereas district magistrates are courts not of record. See 42 Pa.C.S.A.        §   321;

42 Pa.C.S.A.     §   1101(a); Hufmen v. Board      of Probation and Parole,          58

A.3d 860, 863 (Pa. Cmwlth. 2012).      Pursuant to 61 Pa.C.S.A.       §   6138(a)(1),



6 Pursuant to Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super.
2005), counsel is also required to attach to the petition to withdraw a copy of
the letter sent to the client advising him of his rights. Counsel's newly -filed
petition to withdraw states that she forwarded to Appellant a copy of the
Anders brief and petition to withdraw, and sent a letter explaining his rights.
Counsel, however, did not attach said letter to her petition to withdraw.
Counsel attached such a letter to her original petition to withdraw. Counsel's
newly -filed Anders brief is not substantively different from the original;
therefore, we decline to remand the case again based on this oversight.


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the parole board has the authority to recommit                              a   parolee who, while on parole,

commits           a   crime and pleads guilty in          a    court of record.

         District magistrates have jurisdiction over, inter alia, summary offenses

and certain cases under 75 Pa.                            C.S.A.        §       3802.   See 42          Pa.       C.S.A.

§   1515(a)(1), (a)(5). Specifically,                 a   magistrate can dispose of               a §      3802 case

when certain criteria are met: 1) it is                        a   first offense; 2) the offense did not

result in personal injury (other than to the defendant); 3) the defendant

pleads guilty; 4) the offense did not result in damage to another person's

property in excess of $500.00; and 5) the defendant                                         is   not    a   juvenile.

Appellant contends that his DUI conviction meets those criteria.                                        It appears
that    is   correct and          a   district magistrate could have disposed of both of the

charges to which Appellant pled guilty.                            Appellant argues that because the

charges could have been disposed of by                             a   magistrate, the court of common

pleas        in       which he pled guilty should                      have been considered                   a    court

not -of -record, therefore relieving the parole board of the authority to

recommit Appellant.                     Appellant's       argument may be in line with the

Commonwealth Court's decision in Hufmen. In that case, the Commonwealth

Court determined that, where                     a   defendant         is   convicted solely of        a    summary

offense in            a   court of common pleas, it "is the functional equivalent of                                   a


conviction before             a   magisterial district judge," and not                  a   sufficient basis for

the parole board to recommit                 a   parolee.          Id. at 865.



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         However, based on the record before us, it does not appear that

Appellant has been recommitted by the parole board. The parole board has

discretion in deciding whether or not to recommit        a   parolee under 61 Pa.C.S.A.

§    6138(a). Therefore, as of yet it   is   unclear whether Appellant will suffer any

consequences because he entered his guilty plea in            a   court of common pleas.

Appellant has not, in any manner, explained how the trial court erred in

denying his post -sentence motion. Appellant's post -sentence motion did not

cite any authority by which the trial court could declare itself                  a   court

not -of -record and we have found none. Appellant's allegation of error is, at

best, premature. Should Appellant be recommitted by the parole board, his

proper method of redress would be an administrative appeal from the parole

board's determination       Such an appeal would properly proceed before the

Commonwealth Court, not this Court. See 42 Pa.C.S.A.               §   742, 763. Appellant

is    not entitled to relief on the issue he raises herein.             Moreover, after   a


thorough examination of the record, this Court has not discovered any non -

frivolous issues that entitle Appellant to relief at this time.

         Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




J seph D. Seletyn,
Prothonotary
Date: 7/31/2019




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