July 24, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
CHRISTOPHER LEE HIRALDO, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
CHRISTOPHER LEE HIRALDO, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
CHRISTOPHER LEE HIRALDO, Appellant
Appeal from the Judgment of Sentence of October 10, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000347-2011, CP-23-CR-0000391-2011, CP-23-CR-0000392-2011
BEFORE: DONOHUE, MUNDY AND OLSON, JJ.
Appellant, Christopher Lee Hiraldo, appeals from the judgment of sentence entered on October 10, 2012, following the termination of his parole and revocation of his probation. 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 for 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.
We summarize the factual and procedural history of this case as follows. On March 28, 2011, Appellant pled guilty to charges on three separate bills of criminal information. The trial court sentenced Appellant to: (1) four to 23 months of imprisonment, with credit for time served, for burglary; (2) one year of probation consecutive to burglary for accident involving death or personal injury, and; (3) two years of probation for unauthorized use of a motor vehicle, consecutive to burglary, and two years of probation for conspiracy, concurrent to burglary. In total, Appellant's aggregate sentence amounted to a four to 23 month term of imprisonment, followed by two consecutive years of probation.
On October 2, 2012, Adult Probation and Parole Services issued a report requesting a hearing to determine if revocation was warranted based upon violations of the terms of Appellant's probation and parole. On October 10, 2012, the trial court held a revocation hearing pursuant to Gagnon v. Scarpelli, 411 U.S. 778 (1973) (Gagnon II). The trial court found Appellant in violation of parole and probation for giving false contact information, failing to report to his parole/probation officer, and he was living with the victim of the underlying crimes despite prohibition of contact with her. As such, the trial court sentenced Appellant on the underlying burglary charge to full back time, or 555 days of incarceration, with immediate re-parole. On the accident involving death or personal injury conviction, the trial court revoked Appellant's probation and imposed a new sentence of one year of probation, consecutive to all other sentences. On the unauthorized use of a motor vehicle and conspiracy charges, the trial court revoked probation and imposed a term of one to two years of imprisonment on each charge, to run consecutively to all other sentences. In sum, the trial court sentenced Appellant to an aggregate term of two to four years of imprisonment, followed by one year of probation. Appellant filed motions for reconsideration in all three matters on October 16, 2012. The trial court denied relief. Appellant filed timely appeals,  which this Court consequently consolidated.
On appeal, Appellant's court-appointed counsel has filed a petition for leave to withdraw and has accompanied this petition with an Anders brief. The Anders brief raises the following claim:
Whether the new sentences imposed upon [Appellant] are harsh and excessive where, in the aggregate, they require him to serve an additional 2 to 4 years of incarceration, and then a year of probation?
Anders Brief at 3.
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 v. Miller, 715 A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy certain technical requirements. First, counsel must "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." Miller, 715 A.2d at 1207. 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; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel's conclusion that the appeal is frivolous; and (4) state[s] 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.
Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client and advise the client "of [the client's] right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention." Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above obligations, "it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous." Santiago, 978 A.2d at 355 n.5, quoting Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981). 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 met all of the above procedural obligations. We must, therefore, review the entire record and analyze whether this appeal is, in fact, wholly frivolous. Our analysis begins with the issue raised in the Anders brief.
As the Anders brief claims, the trial court abused its discretion when it imposed an "unduly harsh and excessive" sentence upon Appellant. Anders Brief at 3. This claim does not challenge the revocation of Appellant's parole or probation or the fact that the trial court imposed a sentence of total confinement upon Appellant.
With begin by examining the sentences imposed following the revocation of probation for accident involving death or personal injury conviction, unauthorized use of a motor vehicle, and conspiracy. "An appellant wishing to appeal the discretionary aspects of a probation-revocation sentence has no absolute right to do so but, rather, must petition this Court for permission to do so." Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008). As this Court has explained:
To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. ; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 [Pa.C.S.A.] § 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In this case, Appellant has complied with the first two prongs of the aforementioned four-part analysis. Appellant has failed to include a Rule 2119 statement in his brief. However, the Commonwealth has not objected. "[W]hen [an] appellant has not included a Rule 2119(f) statement and the appellee has not objected, this Court may ignore the omission and determine if there is a substantial question that the sentence imposed was not appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e., deny allowance of appeal." Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).
"The determination of whether a particular case raises a substantial question is to be evaluated on a case-by-case basis. Generally, however, in order to establish that there is a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process." Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal citations omitted). On appeal from a probation revocation proceeding, this Court has previously determined a substantial question is presented when a sentence of total confinement, in excess of the original sentence, is imposed as a result of a technical violation of probation. See Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Hence, we examine Appellant's claim.
"Revocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court's decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion." Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008). "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." Id. "It is only when it becomes apparent that the probationary order is not serving this desired end of rehabilitation the court's discretion to impose a more appropriate sanction should not be fettered." Id. at 888-889.
Upon revoking a defendant's probation and imposing a new sentence, a court has available to it essentially all the sentencing alternatives that existed at the time of the initial sentencing. 42 Pa.C.S.A. § 9771(b). "Thus, if the original offense was punishable by total confinement, such a penalty is available to a revocation court, subject to the limitation that the court shall not impose total confinement unless it finds that: (1) the defendant has been convicted of another crime; (2) the defendant's conduct indicates a likelihood of future offenses; or (3) such a sentence is necessary to vindicate the court's authority." Kalichak, 943 A.2d at 289. "However, Sentencing Guidelines do not apply to sentences imposed following a revocation of probation." Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (citation omitted). Instead, pursuant to 42 Pa.C.S.A. § 9721(b), the sentencing court must consider the protection of the public, the gravity of the offense in relation to the impact on the victim and the community, and the rehabilitative needs of the defendant. Id.
In this case, the trial court noted that Appellant had never reported to his probation officer since his original sentencing and that he changed his address without notifying authorities. N.T., 10/10/2012, at 4. Appellant was living with the victim, despite his prohibition from the residence. Id. at 6, 9. The trial court also heard testimony that Appellant was taking GED classes in prison, working part-time before incarceration, has an 8-month-old daughter, and had no new arrests. Id. at 8.
Based on the foregoing, we discern no abuse of discretion or trial court error in revoking Appellant's probation and sentencing him to terms of total confinement. Appellant clearly violated the terms of his probation by failing to abide by the terms of his probation. The Commonwealth proved that probation has proven to be ineffective rehabilitation. Moreover, the trial court considered the protection of the public and the gravity of the offense, especially in light of the fact that Appellant was living at the victim's residence in violation of the terms of his probation. We discern no abuse of discretion or error of law in revoking probation and imposing a term of total confinement.
Appellant cannot challenge the discretionary aspects of sentencing on the sentence imposed following the revocation of his parole for the underlying burglary:
[A] parole revocation does not involve the imposition of a new sentence. Indeed, there is no authority for a parole-revocation court to impose a new penalty. Rather, the only option for a court that decides to revoke parole is to recommit the defendant to serve the already-imposed, original sentence. At some point thereafter, the defendant may again be paroled.
Therefore, the purposes of a court's parole-revocation hearing—the revocation court's tasks—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 the violation by a preponderance of the evidence and, once it does so, the decision to revoke parole is a matter for the court's discretion.[…]
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 or failed to place reasons for sentence on the record. 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, 290-291 (Pa. Super. 2008) (internal citations and footnote omitted). Accordingly, in this case, the trial court did not abuse its discretion or err as a matter of law when it ordered Appellant to serve back time on his original sentence for burglary upon a finding of technical violations of his parole.
On the foregoing basis, and because our independent assessment of the record yields no non-frivolous issues which merit our review, we grant counsel leave to withdraw and we affirm the judgment of sentence.
Leave to withdraw granted. Judgment of sentence affirmed. Judgment Entered.