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[U] Commonwealth v. Dearstyne

Superior Court of Pennsylvania

June 27, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee.
v.
JOSEPH DEARSTYNE, Appellant. COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH DEARSTYNE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of September 4, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006166-2008, CP-23-CR-0005729-2008

BEFORE: PANELLA, OLSON and STRASSBURGER, [*] JJ.

MEMORANDUM

OLSON, J.

Appellant, Joseph Dearstyne, appeals from the judgment of sentence entered on September 4, 2012. On this direct appeal, Appellant's court- appointed counsel has filed both a petition to withdraw as counsel and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant's counsel has complied with the procedural requirements necessary to affect withdrawal. Moreover, after independently reviewing the record, we conclude that the instant appeal is wholly frivolous. We therefore grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.

The trial court has provided us with an able summary of the underlying facts:

On April 18, 2008, [Appellant] was arrested and charged with [driving under the influence of alcohol ("DUI"). This case was docketed at CP-23-CR-0005729-2008 (hereinafter "5729-2008")]. On December 5, 2008, [Appellant] entered into a negotiated plea agreement pursuant to which he was sentenced to a period of confinement of [three to] 24 months [in jail, ] with a [consecutive] probationary period of three years[. The trial court ordered this sentence to run concurrent to the sentence Appellant received at CP-23-CR-0006166-2008 (hereinafter "6166-2008")]. . . .
On July 10, 2008, [Appellant] was arrested and [again] charged with [DUI. This case was docketed at 6166-2008]. On December 5, 2008, [Appellant] entered into a negotiated plea pursuant to which he was sentenced to a period of confinement from [12 to 24] months [in jail, ] with a [consecutive] probationary period of three years[. The trial court ordered this sentence to run concurrent to the sentence Appellant received at 5729-2008]. . . .
On November 3, 2010, [Appellant] began his three-year period of probation. On December 18, 2011, [Appellant] was arrested for [another] DUI offense, for leaving the scene of an accident, and for driving with a suspended license. . . .
The [Pennsylvania Department of Probation and Parole] requested that [the trial court] conduct a [violation of probation ("VOP")] hearing, and it recommended that the [trial c]ourt (1) revoke [Appellant's] probation [at both docket numbers], (2) re-sentence [Appellant] to [a term of one to three years in prison] for the charges at [d]ocket number [6166-2008], and (3) re-sentence [Appellant] to [a term of one to three years in prison] for the charges at [d]ocket number [5729-2008. The Commonwealth recommended that the sentences run concurrently to one another].
On September 4, 2012, [the trial court conducted a Gagnon[1] II hearing, after] which it imposed a sentence of [one to three years in prison] on [both docket numbers and ordered that the sentences run consecutively to one another].

Trial Court Opinion, 11/15/12, at 1-2.

Appellant did not object to the trial court's sentence during the sentencing proceeding and Appellant did not thereafter file a motion to modify his sentence. See N.T. Sentencing, 9/4/12, at 3-17; Pa.R.Crim.P. 708(E).

On October 2, 2012, Appellant filed a notice of appeal from his judgment of sentence. Now on appeal, Appellant's court-appointed counsel has filed a petition for leave to withdraw and has accompanied this petition with an And ...


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