Com. v. Pope, B. (memorandum)

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J-S78016-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. BOB POPE Appellant No. 291 MDA 2012 Appeal from the Judgment of Sentence January 9, 2012 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001507-2003 BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and ALLEN, J. MEMORANDUM BY PANELLA, J.: FILED MAY 06, 2013 Appellant, Bob Pope appeals from the judgment of sentence entered on January 9, 2012, in the Court of Common Pleas of Dauphin County, following the revocation his probation and re-sentencing after remand in accordance with this Court s order of October 6, 2011. Additionally, Pope s court-appointed counsel, Andrea L. Haynes, Esquire, has petitioned to withdraw and has submitted an Anders1 brief in support thereof, contending that Pope s appeal is frivolous. After careful review, we grant Attorney Haynes s petition to withdraw as counsel and we affirm Pope s judgment of sentence. ____________________________________________ 1 Anders v. California, 386 U.S. 738 (1967). J-S78016-12 A panel of this Court previously summarized the early procedural history of this case in Pope s direct appeal from his amended judgment of sentence. On November 3, 2003, [Pope] entered a plea of nolo contendere to two counts each of criminal solicitation to commit rape, statutory sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, indecent exposure, and corruption of minors, as well as to one count of criminal use of a communication facility. On March 11, 2004, he was sentenced to two to four years of imprisonment, followed by five years of probation. At the conclusion of the sentencing hearing, Pope was advised of his post-sentencing rights. Pope did not file a direct appeal. On August 29, 2005, Pope file a petition for relief under the Post Conviction Relief Act ( PCRA ). On May 23, 2007, the amended petition was denied in part and granted it [sic] in part. The court granted the petition as it pertained to an illegal sentence based on improper merge of some of the counts, and vacated the sentences as those counts. On August 1, 2007, Pope was re-sentenced to the original sentence of two to four years of imprisonment, followed by five years of probation. On August 8, 2007, Pope filed a timely post-sentence motion. The order denying the motion was not entered by the prothonotary until March 7, 2008. [A] timely appeal followed. Commonwealth v. Pope, 599 MDA 2008, at 2-3 (Pa. Super., filed April 3, 2009) (footnotes omitted). This Court affirmed the judgment of sentence. On January 12, 2009, Pope faced a revocation hearing at which the trial court determined Pope was not in violation of his probation. -2- J-S78016-12 On January 19, 2011, Pope again faced revocation proceedings. After a hearing, the trial court resentenced Pope to an aggregate period of 24 to 48 months incarceration followed by 168 months probation. Pope did not file a motion to modify sentence. Pope filed a notice of appeal on February 8, 2011. Counsel filed a statement of intent to file an Anders brief in lieu of a concise statement of matters on February 24, 2011. This Court, by way of a memorandum opinion filed on October 6, 2011, denied counsel s petition to withdraw finding the sentence imposed by the trial court to be facially illegal . Commonwealth v. Pope, 289 MDA 2011, at 10 (Pa. Super., filed October 6, 2011). Specifically, this Court determined that, the trial court, when sentencing [Pope] on January 19, 2011, mistakenly referenced the vacated March 11, 2004 sentencing order as containing the extant sentence instead of the August 1, 2007 sentencing and, as such, the trial court sentenced [Pope] to counts previously determined to have merged. See id., at 5. To correct the error, this Court vacated Pope s judgment of sentence and remanded for re-sentencing. Upon remand, Pope appeared before the Honorable Richard Lewis2 for re-sentencing. At that time, Pope made an oral motion to proceed pro se, which, after a lengthy colloquy by the trial court, was granted. At the resentencing hearing, the Commonwealth merged Counts 3, 4, 9, 10, 11, 12, ____________________________________________ 2 Judge Lewis was assigned to the case after Judge Jeanne Turgeon recused upon a request by Pope. -3- J-S78016-12 13, and 14 into Count 1 after which, Pope was resentenced to concurrent terms of 24 to 48 months imprisonment on Counts 7 and 8. Pope was not re-sentenced on Count 15. This timely appeal followed. Preliminarily, we note that Attorney Haynes has petitioned to withdraw and has submitted an Anders brief in support thereof contending that Pope s appeal is frivolous. The Pennsylvania Supreme Court has articulated the procedure to be followed when court-appointed counsel seeks to withdraw from representing an appellant on direct appeal: [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 arguably believes 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, 602 Pa. 159, 178-79, 978 A.2d 349, 361 (2009). We note that Attorney Haynes has complied with all of the requirements of Anders as articulated in Santiago.3 We will now proceed ____________________________________________ 3 Additionally, Attorney Haynes confirms that she sent a copy of the Anders brief to Pope as well as a letter explaining to Pope that he has the right to proceed pro se or the right to retain new counsel. A copy of the letter is appended to Attorney Haynes s petition, as required by this Court s decision (Footnote Continued Next Page) -4- J-S78016-12 to examine the issues set forth in the Anders brief, which Pope believes to be of arguable merit. In his Anders brief, Pope raises the following issues: I. WHETHER THE TRIAL COURT ERRED WHEN IT INCREASED APPELLANT S SENTENCE ON COUNT 1 FROM 12-24 MONTHS TO 24-48 MONTHS IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE? II. WHETHER THE TRIAL COURT ERRED WHEN [sic] SENTENCED APPELLANT TO 120 MONTHS PROBATION ON COUNTS 7 AND 8 IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE? III. WHETHER THE TRIAL COURT ERRED IN INCREASING THE SENTENCE ON COUNTS 2, 5, 6, AND 15 IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE? IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO MERGE COUNTS 7 AND 8 INTO COUNTS 5 AND 6 WHERE THE CHARGES ARE DERIVED FROM THE SAME SET OF FACTS AND CIRCUMSTANCES? V. WHETHER THE TRIAL COURT ERRED IN REVOKING APPELLANT S SENTENCE WHERE THE SUPERIOR COURT CONCLUDED THAT APPELLANT S AUGUST 1, 2007, SENTENCING ORDER WAS THE EXTANT ORDER AT THE TIME OF APPELLANT S REVOCATION, AND WHERE THAT ORDER DID NOT CONTAIN ANY OF THE CONDITIONS WHICH APPELLANT WAS FOUND TO HAVE VIOLATED. Anders Brief, at 4. (Footnote Continued) _______________________ in Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005), in which we held that to facilitate appellate review, ¦ counsel must attach as an exhibit to the petition to withdraw filed with this Court a copy of the letter sent to counsel s client giving notice of the client s rights. Id., at 749 (emphasis in original). -5- J-S78016-12 After examining the issue contained in the Anders brief and after undertaking our own independent review of the record, we concur with counsel s assessment that the appeal is wholly frivolous. Furthermore, we are confident that the trial court ably and methodically reviewed all the evidence and considered all of the relevant factors in re-sentencing Pope upon remand. In its thorough and well-written opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court addresses all of issues Pope raised herein on appeal and aptly disposes of same. We can find no error in the sentence or in the court s rationale. Accordingly, we affirm based on that opinion. See Trial Court Opinion, 6/12/12, at 1-9. Judgment of sentence affirmed. Petition to withdraw as counsel granted. Judgment Entered. Deputy Prothonotary Date: 5/6/2013 -6-

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