Com. v. Kreamer, T. (memorandum)
Annotate this Case
Download PDF
J-S60006-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : : : : : : : : : Appellee v. TIMOTHY M. KREAMER, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1739 MDA 2011 Appeal from the Judgment of Sentence Entered May 27, 2010, In the Court of Common Pleas of Lycoming County, Criminal Division, at No. CP-41-CR-0001228-1996. BEFORE: SHOGAN, MUNDY and OTT, JJ. MEMORANDUM BY SHOGAN, J.: FILED: MAY 16, 2013 Appellant, Timothy M. Kreamer, appeals nunc pro tunc from the judgment of sentence entered on May 27, 2010 following the revocation of his probation. Counsel has filed a petition to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009).1 Upon review, we grant counsel s petition to withdraw and affirm Appellant s judgment of sentence. 1 This case was previously remanded for counsel to comply with the mandates of Anders and Santiago. As counsel has complied with this Court s order, this appeal is ripe for our review. J-S60006-12 In its Pa.R.A.P. 1925(a) opinion, the trial court set forth the factual and procedural history as follows: This opinion is written in support of this Court s judgment of sentence issued on May 27, 2010 following a probation violation hearing and the Court s Order of June 23, 2010, wherein it denied Appellant s motion to reconsider the probation violation sentence. In an Order entered September 2, 2011, the Court notes that it reinstated Appellant s right to take a direct appeal from the probation violation sentence. The relevant facts follow. On March 6, 1997, Appellant pled guilty to the following offenses: count 2, robbery, a felony of the second degree; count 7, robbery, a felony of the second degree; and amended count 6, criminal attempt to commit robbery by placing a person in fear of bodily injury, a felony of the second degree. On May 6, 1997, the Honorable William S. Kieser sentenced Appellant to two consecutive eight (8) to twenty-nine (29) month sentences on the two robbery convictions and a consecutive ten-year period of probation for criminal attempt to commit robbery.1 1 Appellant also was serving a sentence of three (3) to seven (7) years incarceration in a state correctional institution for homicide by vehicle while driving under the influence of alcohol. This sentence was imposed by the Honorable Kenneth D. Brown on or about June 7, 1994 in case number 93-11000. Appellant began serving the ten-year probation sentence on or about March 20, 2002. One of the conditions of Appellant s probation supervision was that he refrain from using controlled substances without a valid prescription. On or about November 13, 2009, Appellant appeared at the Williamsport District Office for his appointment with his probation officer, John Girardi. A drug test was conducted on Appellant s urine, which yielded a positive result for cocaine. Appellant was locked up on a forty-eight (48) hour detainer, but Mr. Girardi, with the approval of the District Director, gave Appellant a second chance on the street. Mr. Girardi explained to Appellant the risks he -2- J-S60006-12 was taking by giving him a second chance on the street and the need for Appellant to work with him and comply with the conditions of his supervision. He also sent Appellant to West Branch Drug and Alcohol for an evaluation and advised Appellant he would need to be involved in outpatient treatment. Despite being given a second chance on the street, Appellant again tested positive for cocaine on March 17, 2010, April 18, 2010 and May 3, 2010. On May 3, 2010, Mr. Girardi arrested Appellant and placed him in the Lycoming County Prison. About a week before the May 3rd arrest, Mr. Girardi placed Appellant in intensive outpatient treatment. Although Appellant admittedly was in such treatment from at least April 28, 2010, N.T., May 27, 2010 at p. 8, his urine still tested positive for cocaine on May 3, 2010, indicating that Appellant was using cocaine while he was receiving treatment. Mr. Girardi recommended a sentence of six (6) to twentyfour (24) months state incarceration for these violations of [Appellant s] probation. The paperwork provided to the Court, however, indicated a four (4) to twenty-four (24) month recommendation. Appellant admitted he violated the conditions of his probation by using illegal controlled substances and agreed to proceed to a disposition, but he begged the Court not to send him upstate but to sentence him to a treatment or rehabilitation program, or home confinement instead. The Court found he violated the conditions of his probation and sentenced him to four (4) to twenty-four (24) months incarceration in a state correctional institution. Appellant filed a motion to reconsider sentence, which the Court held a hearing on June 23, 2010. Appellant again sought a reinstatement of probation with inpatient or outpatient treatment or, in the alternative, Drug Court or a county sentence. Appellant also made the following statement: But I admit that I made a mistake. I thank you for the sentence you gave me. I believe it was fair. And I just, you know, I just want another shot to get out there...[.] N.T., June 23, 2010, at p. 7. -3- J-S60006-12 The Court denied the motion. The Court explained to Appellant that his choices to use drugs on multiple occasions backed the Court into a corner. If Appellant was not incarcerated, there was a high likelihood that he would use drugs and re-offend. N.T., June 23, 2010, at pp. 8-10. On November 1, 2010, Appellant filed a pro se Post Conviction Relief Act (PCRA) petition. The Court appointed counsel and gave counsel an opportunity to either amend Appellant s pro se petition or file a Turner/Finley letter. Counsel requested transcripts of the probation violation hearing and the reconsideration hearing. The transcripts were prepared, and counsel filed a motion to withdraw with a Turner/Finley letter attached. On May 24, 2011, the Court issued an Opinion and Order giving Appellant notice of its intent to deny his PCRA petition without holding an evidentiary hearing and granting counsel s motion to withdraw. In Appellant s response to the Court s notice of intent to dismiss, Appellant raised for the first time a claim that he had asked his attorney to file an appeal from his probation violation re-sentencing. The Commonwealth agreed to reinstate Appellant s direct appeal rights without holding an evidentiary hearing. Therefore, the Court reinstated Appellant s right to file a direct appeal from his probation violation sentence on or about September 3, 2011. Since Appellant s original PCRA counsel was no longer under contract with the County to handle conflict cases, the Court appointed new counsel to represent Appellant on appeal. Trial Court Opinion, 3/21/12, at 1-4 (footnote in original). As noted above, Counsel has filed a petition to withdraw and Anders brief. When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005). Furthermore, there are clear mandates that counsel seeking to withdraw pursuant to Anders/McClendon/Santiago must follow: -4- J-S60006-12 In order for counsel to withdraw from an appeal pursuant to Anders ¦ certain requirements must be met: (1) counsel must 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) counsel must 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) counsel must furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court s attention. Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). In Santiago, the Supreme Court set forth specific requirements for the brief accompanying counsel s petition to withdraw: [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. Santiago, 978 A.2d at 361. In the case before us presently, Appellant s counsel ( Counsel ) has complied with the requirements of Santiago, and our review of Counsel s petition to withdraw, supporting documentation, and Anders brief reveals -5- J-S60006-12 that Counsel has satisfied all of the foregoing requirements. Counsel has furnished a copy of the brief to Appellant, advised him of his right to retain new counsel, proceed pro se, or raise any additional points that he deems worthy of this Court s attention, and has attached a copy of the letter sent to Appellant to the Anders petition as required under Millisock. Once Counsel has met her 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. Santiago, 978 A.2d at 355 n.5. Thus, we will now examine the issues set forth by Counsel in the Anders brief that Appellant believes have merit. In the Anders brief, Counsel raises four issues for this Court s consideration: I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE APPELLANT RELIEF DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS PROBATION VIOLATION AND RESENTENCING HEARING BECAUSE HIS COUNSEL FAILED TO PROPERLY PRESENT THE MITIGATING FACTORS AT THE RESENTENCING PROCEEDINGS. II. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT THE APPELLANT RELIEF ON THE BASIS OF THE RESENTENCING CONSTITUTING DOUBLE JEOPARDY. III. WHETHER THE TRIAL COURT ERRED IN IMPOSING AN ILLEGAL SENTENCE UPON APPELLANT AT THE TIME OR RESENTENCING. -6- J-S60006-12 IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IMPOSING A SENTENCE AND ORDERING IT BE SERVED IN A STATE CORRECTIONAL INSTITUTION. Anders Brief at 8. We have thoroughly reviewed Counsel s Anders brief, the trial court s opinion, the record in its entirety, and the case law and constitutional provisions relied upon by the trial court in reaching its determination. Following our review, we agree entirely with the trial court s well-reasoned analysis and legal conclusions that Appellant s possible issues are wholly without merit and frivolous. Accordingly, we adopt the March 21, 2012 trial court opinion as our own.2 Furthermore, having reviewed the record as a whole, we conclude that there are no other issues of merit for appellate review. Accordingly, we affirm the judgment of sentence and permit counsel to withdraw. Counsel s petition for leave to withdraw representation granted. Judgment of sentence affirmed. Judgment Entered. Interim Deputy Prothonotary Date: May 16, 2013 2 The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter. -7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
