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[U] Commonwealth v. Hiraldo

Superior Court of Pennsylvania

July 24, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHRISTOPHER LEE HIRALDO, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHRISTOPHER LEE HIRALDO, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHRISTOPHER LEE HIRALDO, Appellant

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

OLSON, J.

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[1] 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.[2] Appellant filed timely appeals, [3] 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, ...

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