Com. v. Stark, P (memorandum)

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J-S14043-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PATRICK RICHARD STARK, Appellant No. 2750 EDA 2013 Appeal from the Order August 27, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0000870-2011 BEFORE: SHOGAN, J., OTT, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED APRIL 25, 2014 Appellant, Patrick Richard Stark, appeals from the order entered after his revocation of parole hearing in which the court revoked his parole and recommitted him to county jail to serve his full back-time. Appell counsel seeks to withdraw from representation pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) application to withdraw. On April 18, 2011, Appellant entered a negotiated guilty plea to one count of retail theft1 related to his January 25, 2011 attempt to steal a ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S14043-14 power converter from an Auto Zone in Glenolden, Pennsylvania. The same day, the court sentenced Appellant to a term of incarceration of not less than six nor more than twenty-three months, and released him on parole. Appellant did not file a direct appeal. While on parole, Appellant was convicted of three separate driving under the influence (DUI) offenses.2 As a result, Appellant was accused of violating the terms of his parole and, on August 27, 2013, he appeared before the sentencing court for a Gagnon II3 hearing. At the hearing, Appellant stipulated to his DUI to serve his full back-time of 357 days in the county jail. Appellant timely appealed.4 On December 4, 2013, counsel filed an application to withdraw and an Anders brief on the basis that the appeal is frivolous. (Footnote Continued) _______________________ 1 18 Pa.C.S.A. § 3929. 2 75 Pa.C.S.A. § 3802. 3 See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). 4 court that he would be filing an Anders brief. See Pa.R.A.P. 1925(c)(4). The court filed a Rule 1925(a) opinion on October 24, 2013, in which it (Trial Court Opinion, 10/24/13, at 2); see also Commonwealth v. McBride statement of intent to file an Anders[] brief pursuant to Rule 1925(c)(4), a -2- J-S14043-14 The standard of review for an Anders brief is well-settled. Court-appointed counsel who seek to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous must: (1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) file a brief referring to anything that arguably might support the appeal but letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the co [T]his Court may not review the merits of the underlying issues without first passing on the request to withdraw. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations and quotation marks omitted). Further, our Supreme Court ruled in Santiago, supra, that Anders Santiago, supra at 360. Anders brief and application to withdraw substantially comply with the applicable technical requirements and reveal conscientious examination of the record [and] Lilley, supra at 997. Additionally, the record establishes that counsel served Appellant with a copy of the Anders brief and application to withdraw, and a letter of notice which advised Appellant of his right to retain new counsel or to proceed pro -3- J-S14043-14 se and raise additional issues to this Court. See id.; (see also Application to Withdraw as Counsel, 12/04/13, Attachment, at 1). Further, the to anything that arguably might support the appeal[ Lilley, supra at 997; (see also Anders Brief, at 7-9). As noted by our Supreme Court in Santiago, the fact statements arguably support the frivolity of the appeal does not violate the requirements of Anders. See Santiago, supra at 360-61. with the technical Anders requirements, Lilley, supra at 998 (citation omitted). The Anders recommitment of [Appellant] to serve his full back time of 357 days was Anders [t]he long-term benefits to [Appellant], and to society, would have been greater if he had been [o]rdered to undergo long-term inpatient treatment, rather Id. role-revocation hearing the are to determine whether the parolee violated parole and, if so, whether parole remains a viable means of rehabilitating the defendant and deterring future antisocial conduct, or whether revocation, and thus recommitment, are in order. The Commonwealth must prove -4- than J-S14043-14 the violation by a preponderance of the evidence and, once it 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 . . . . 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, 290-91 (Pa. Super. 2008) (citations omitted). Here, at the Gagnon II hearing, Appellant admitted that his three DUI convictions violated his parole. (See N.T. Hearing, 8/27/13, at 3, 5, 18; see also Gagnon II Hearing Report, 8/21/13, at unnumbered page 1). His parole officer recommended that the sentencing court find that Appellant violated his parole and recommit him to serve his full back-time of 357 days in a county institution. (See N.T. Hearing, 8/27/13, at 3-4; Gagnon II Hearing Report, 8/21/13, at unnumbered page 2). due to the DUI -5- J-S14043-14 16; see also id. needs, the sentencing court ordered that he undergo a drug and alcohol evaluation to establish a treatment plan. (See id. at 21-25). The court noted that it would consider an early parole petition at a future time in an treatment. (See id. at 26-27). Based on the foregoing, we conclude that the sentencing court did not its discretion in finding that parole no longer of Kalichak, supra at 290; see id. at 290-91. Therefore, based on our own independent review of the record, we it relief. Lilley, supra at 998; see also Kalichak, supra at 290-91. Additionally, we find no other non-frivolous issues. Shogan, J., concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/25/2014 -6-

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