Com. v. Hill, J. (memorandum)

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J-S33029-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JAMES HILL, Appellant No. 2770 EDA 2013 Appeal from the Judgment of Sentence of January 29, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0512781-2010 BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ. MEMORANDUM BY OLSON, J.: FILED JULY 09, 2014 Appellant, James Hill, appeals from the judgment of sentence entered -appointed counsel has filed both an application to withdraw as counsel and an accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386 the procedural requirements necessary to withdraw and that this appeal is affirm the judgment of sentence. J-S33029-14 The factual and procedural history of this case is as follows. On July 23, 2003, Appellant pled guilty to forgery1 and simple assault.2 imprisonment to be followed by three years of probation. He was After being released from prison, Appellant failed to report to his probation officer. Unbeknownst to the trial court, Appellant was also on probation in a case in the Montgomery County Court of Common Pleas. Appellant was reporting regularly to his probation officer in Montgomery County and making necessary payments in that case. One year after his release from prison, he was arrested for various drug offenses. He was ultimately found guilty of those drug offenses and trial court then conducted a probation revocation hearing at which time evidence was failure to make payments as required, and his convictions for the drug offenses. On January 29, 2010, the trial court found that Appellant violated his probation by committing the drug offenses and therefore revoked his n from the drug case. 1 18 Pa.C.S.A. § 4101. 2 18 Pa.C.S.A. § 2701. -2- J-S33029-14 Appellant did not appeal from the judgment of sentence that followed the revocation proceedings. On January 31, 2013, Appellant filed a PCRA part and denied in part. The PCRA court granted Appellant the right to file an appeal in this matter nunc pro tunc but denied his request to file a postsentence motion nunc pro tunc. This timely appeal followed. Counsel raises one issue in his Anders Brief, whether the evidence See Anders Brief at 10. Before reviewing the merits of this appeal, however, this Court must first determine whether counsel has fulfilled the necessary procedural requirements for withdrawing as counsel. Commonwealth Washington, 63 A.3d 797, 800 (Pa. Super. 2013). Anders, court-appointed counsel must satisfy v. To withdraw under certain technical and state that after making a conscientious examination of the record, he has determined that the appeal is Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an Anders brief, in which counsel: (1) provide[s] a summary of the procedural history and facts, with citations to the record; -3- J-S33029-14 (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; and 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. Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361. Finally, counsel must furnish a copy of the Anders brief to his client pro se or raise attach[] to the Anders petition Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation omitted). responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the Santiago, 978 A.2d at 355 n.5, quoting McClendon, 434 A.2d at 1187. It is only when both the procedural and substantive requirements are satisfied that counsel will be permitted to withdraw. In the case at bar, counsel has complied with the procedural -4- J-S33029-14 requirements for petitioning to withdraw on direct appeal. 3 We now turn to Anders brief. As we have stated: A probation violation is established whenever it is shown that the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct. Moreover, the Commonwealth need only make this showing by a preponderance of the evidence. Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010), appeal denied, 20 A.3d 1211 (Pa. 2011) (citations and footnote omitted). Appellant contends that he did not have notice that he had to report to the probation officer in Philadelphia County. However, we need not reach that issue to determine whether there was sufficient evidence for the trial -settled Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (citation omitted). Evidence was presented at the revocation hearing that Appellant was convicted of drug-related offenses while he was on probation. See N.T., 1/29/10, at 5. This evidence alone was sufficient for the trial the evidence was insufficient to revoke his probation is wholly frivolous. 3 Anders brief. -5- J-S33029-14 Anders brief is frivolous. Furthermore, after an independent review of the entire record, we conclude that no other issue of arguable merit exists. Therefore, issue raised on appeal is frivolous, we will affirm the judgment of sentence. Application to withdraw as counsel granted. affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 -6- Judgment of sentence

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