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[U] Commonwealth v. Young

Superior Court of Pennsylvania

July 24, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LEROY EDWARD YOUNG, JR., Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LEROY EDWARD YOUNG, JR. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of October 23, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002075-2010

BEFORE: DONOHUE, MUNDY AND OLSON, JJ.

MEMORANDUM

OLSON, J.

Appellant, Leroy Edward Young, Jr., appeals from the judgment of sentence entered on October 23, 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.

On July 6, 2010, Appellant pleaded guilty at two separate docket numbers: at docket number CP-23-CR-0002075-2010 (hereinafter "2075-2010"), Appellant pleaded guilty to driving under the influence of a controlled substance (DUI) and driving while his operating privilege was suspended or revoked; at docket number CP-23-CR-0003731-2010 (hereinafter "3731-2010"), Appellant pleaded guilty to possessing a controlled substance.[1] On August 16, 2010, the trial court sentenced Appellant at both cases. Specifically, at docket number 2075-2010, the trial court sentenced Appellant to serve an aggregate term of three months to 23 months in jail, followed by a consecutive term of three years of probation; at docket number 3731-2010, the trial court sentenced Appellant to one year of probation, to be served consecutively to the sentence imposed at 2075-2010.

On January 20, 2012, while Appellant was on parole at docket number 2075-2010, Appellant was arrested for yet another DUI. That same day, Appellant's parole and probation officer filed a request for a bench warrant, accusing Appellant of violating his parole and probation at docket number 2075-2010 and of violating his probation at docket number 3731-2010. The trial court issued the bench warrant and scheduled a Gagnon I hearing for February 9, 2012.[2] Following the Gagnon I hearing, the trial court concluded that there was probable cause that Appellant violated his parole and probation. The trial court thus scheduled a Gagnon II hearing for October 23, 2012.

During the Gagnon II hearing, the trial court learned that Appellant's newest DUI conviction constituted Appellant's fifth DUI conviction. As the trial court explained:

Not only does [Appellant] have a record of [DUI's], he also has a record of driving while his privileges have been suspended. So he just hasn't demonstrated he has any respect for his fellow citizens on the highway, or any respect for the law. And I believe that he needs a rehabilitative program. With five DUI's, we currently, in Delaware County, don't have anything that is adequate to meet his needs.

N.T. Gagnon II Hearing, 10/23/12, at 9.

The trial court then revoked Appellant's parole at docket number 2075-2010, revoked Appellant's probation at both docket numbers, recommitted Appellant to serve his full backtime (with immediate parole) on the parole violation, and resentenced Appellant to serve an aggregate term of 18 to 36 months in prison on the underlying convictions at docket numbers 2075-2010 and 3731-2010. Id. at 9-11.

On November 20, 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 Anders brief. The Anders brief raises the following claim:[3]

Whether the new sentences imposed upon [Appellant] are harsh and excessive where, in the aggregate, they require him to serve ...

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