Appeal from the Judgment of Sentence August 23, 2012 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000515-2003, CP-01-CR-0000516-2003
BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, LAZARUS, OLSON, and WECHT, JJ.
John Mitchell Cartrette Jr. appeals from the judgment of sentence of one-and-one-half years to five years incarceration imposed by the trial court after it revoked his County Intermediate Punishment Program ("IPP") sentence. Counsel has filed a petition to withdraw from representation and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel's petition to withdraw and affirm.
Appellant initially pled guilty to two counts of possession with intent to deliver ("PWID") marijuana on March 11, 2004. Pursuant to the plea agreement, the court imposed a county intermediate punishment sentence. That sentence included imprisonment for the first three months, then an additional three months under house arrest, followed by two and one-half years probation.
Thereafter, on November 17, 2004, the Adams County Probation Office filed a motion to revoke Appellant's IPP sentence. The probation department alleged that Maryland authorities arrested Appellant on new drug charges, as well as for assault, disorderly conduct, and a violation of a protection from abuse order. On January 3, 2005, the probation department filed an amended revocation report asserting that Appellant had been arrested in Maryland for grand theft of a motor vehicle, unauthorized use of a motor vehicle, attempted robbery, reckless endangerment of a law enforcement officer, first and second degree assault, and resisting arrest.
Subsequently, on August 23, 2012, after being paroled from serving the Maryland sentence, Appellant appeared for his revocation hearing. Appellant admitted to violating his IPP sentence, and the court revoked Appellant's sentence. The court re-sentenced Appellant to one-and-one-half to five years incarceration on that same date. Appellant filed a post- sentence motion on August 31, 2012, seeking reconsideration of his sentence. The court denied that motion on September 5, 2012.
Appellant timely appealed on September 21, 2012. The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant's counsel filed a statement of intent to file an Anders/McClendon brief in lieu of a concise statement. See Pa.R.A.P. 1925(c)(4). The trial court issued a one-paragraph Pa.R.A.P. 1925(a) decision finding that there was no issue to review. On appeal, counsel filed an Anders brief and attached his petition to withdraw.
In his Anders brief, counsel sets forth one issue that arguably supports the appeal. Specifically, he questions "[w]hether it was an abuse of discretion to sentence Appellant to one and a half (11/2) years to five (5) years in state prison on his first IPP revocation?" Anders brief at 6. The original panel in this matter requested en banc review based on a perceived conflict in our case law as to this Court's scope of review in an appeal examining a discretionary sentencing challenge after revocation proceedings. We granted en banc consideration.
Appellant's counsel, in addition to filing an Anders brief, filed a supplemental brief after this Court granted en banc review in which he maintained that this Court's scope of review includes discretionary sentencing challenges. The Commonwealth in its original brief limited its argument to whether Appellant raised a substantial question for review. Following this Court's certification of this matter for en banc consideration, the Commonwealth cited Commonwealth v. Gilmore, 348 A.2d 425 (Pa. 1975), and Commonwealth v. Jose Infante, 888 A.2d 783 (Pa. 2005), as precluding this Court from reviewing a discretionary sentencing challenge following revocation of an IPP sentence.
Initially, we note that we may not address the merits of the issue raised on appeal without first reviewing the request to withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005). Therefore, we review counsel's petition at the outset. Our Supreme Court's decision in Santiago, supra, did not alter the procedural requirements counsel must satisfy in requesting to withdraw from representation. Counsel must: 1) 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; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super. 2009).
Herein, counsel's petition to withdraw from representation states that he reviewed the record and concluded that the appeal is frivolous. Additionally, counsel notified Appellant that he was seeking permission to withdraw and furnished Appellant with copies of the petition to withdraw and Anders brief, and advised Appellant of his right to retain new counsel or proceed pro se to raise any points he believes worthy of this Court's attention. Accordingly, counsel has satisfied the procedural requirements of Anders.
Having concluded that counsel has complied with the procedural mandates of Anders, we now determine whether counsel's Anders brief meets the substantive dictates of Santiago. According to Santiago:
in 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.
Santiago, supra at 361.
Instantly, counsel provided the facts and procedural history of the case. Additionally, he refers to the sentencing claim as an issue that could arguably support the appeal, and concludes that the issue is wholly frivolous. He reasons that the issue is frivolous because Appellant acknowledged committing numerous new crimes. Accordingly, counsel has complied with the minimum requirements of Anders/Santiago.
We now proceed to examine the issue on which we granted en banc review, i.e., whether our scope of review includes Appellant's claim. In a long line of decisions spanning three decades, this Court has reviewed and, in some cases, granted relief to defendants challenging the discretionary aspects of their sentence following revocation of probation. Never has this Court, on appeal from a revocation hearing, issued a decision refusing to consider whether the defendant raised a substantial question or declined to reach the merits of a defendant's discretionary sentencing challenge as falling outside our scope of review.
Moreover, our Supreme Court has not held that this Court is precluded from reaching a discretionary sentencing claim following a defendant's appeal from a violation of probation proceeding. Nor has our Supreme Court reversed a decision by this Court that afforded discretionary sentencing relief to a revocation of probation defendant based on a finding that this Court exceeded our scope of review by analyzing such a claim. Nevertheless, this Court and our Supreme Court have stated in various cases that our scope of review is limited to the validity of the proceedings and the legality of the sentence.
To eliminate the discord between what we seem to say and what we do, we unequivocally hold that this Court's scope of review in an appeal from a revocation sentencing includes discretionary sentencing challenges. We read the statements in those cases that do not include discretionary sentencing issues as part of this Court's scope of review, see e.g., footnote 2, to merely be incomplete. Pointedly, those few cases that use the abbreviated scope of review where a discretionary sentencing claim is in question have not declined to consider the merits of the issue because it was outside the court's scope of review. See e.g. Commonwealth v. Simmons, ...