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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

July 8, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN BERNARD JOHNSON Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN BERNARD JOHNSON Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN BERNARD JOHNSON Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence June 25, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0009579-2009, CP-46-CR-0001444-2010, CP-46-CR-0001449-2010

BEFORE: GANTMAN, J., MUNDY, J., and COLVILLE, J. [*]

MEMORANDUM

GANTMAN, J.

Appellant, John Bernard Johnson, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following revocation of his probation. We affirm and grant counsel's petition to withdraw.

In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case.[1] Therefore, we have no reason to restate them.

As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). "After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon[2] requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.
Under Anders, the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[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.

Id. at 178-79, 978 A.2d at 361.

Instantly, counsel filed a petition for leave to withdraw representation. The petition states counsel engaged in a diligent review of the record and determined the appeal is wholly frivolous. Counsel indicates he notified Appellant of the withdrawal request. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to proceed pro se or with new privately retained counsel to raise any additional points or arguments that Appellant believes have merit. In his Anders brief, counsel provides a summary of the facts and procedural history of the case with citations to the record. Counsel refers to evidence in the record that may arguably support the issues raised on appeal, and he provides citations to relevant law. Counsel also states the reasons for his conclusion that the appeal is wholly frivolous. Thus, counsel has substantially complied with the requirements of Anders and Santiago.

As Appellant has filed neither a pro se brief nor a counseled brief with new privately retained counsel, we review this appeal on the basis of the issues raised in the Anders brief:

ARE APPELLANT'S CONVICTIONS FOR CRIMINAL TRESPASS AND INDECENT ASSAULT SUPPORTED BY COMPETENT EVIDENCE OF RECORD?[3]
IS THE TRIAL COURT'S DETERMINATION THAT APPELLANT HAD VIOLATED THE TERMS AND CONDITIONS OF HIS PROBATION BY COMMITTING A NEW CRIMINAL OFFENSE ON PROBATION OF WHICH HE WAS CONVICTED SUPPORTED BY COMPETENT EVIDENCE OF RECORD?

(Anders Brief at 4).

When reviewing the outcome of a revocation hearing, this Court is limited to determining the validity of the proceeding and the legality of the judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d 1021 (Pa.Super. 2005). Whether the probationer, in fact, violated the conditions of his probation must be demonstrated by evidence of probative value. Commonwealth v. Sims, 770 A.2d 346 (Pa.Super. 2001). Nevertheless, the Commonwealth bears a lesser burden of proof at a probation revocation hearing than it does in a criminal trial. Commonwealth v. Allshouse, 969 A.2d 1236 (Pa.Super. 2009). "The Commonwealth establishes a probation violation meriting revocation when it shows, by a preponderance of the evidence, that the probationer's conduct violated the terms and conditions of his probation, and that probation has proven an ineffective rehabilitation tool incapable of deterring probationer from future antisocial conduct." Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super. 2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008). "[A]n implied condition of any sentence of probation is that the defendant will not commit a further offense." Commonwealth v. Infante, 585 Pa. 408, 420, 888 A.2d 783, 790 (2005) (quoting Commonwealth v. Mallon, 406 A.2d 569, 571 (Pa.Super. 1979)).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable William J. Furber, Jr., we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. (See Trial Court Opinion, filed January 16, 2013, at 2-11) (finding: Appellant stipulated to probation violation at revocation hearing; stipulation was proper; Appellant's new convictions for criminal trespass and indecent assault constituted direct violations of original probationary sentences). Accordingly, we affirm on the basis of the trial court's opinion and grant counsel's petition to withdraw.

Judgment of sentence affirmed; counsel's petition to withdraw is granted.

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