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[U] Commonwealth v. Vives

Superior Court of Pennsylvania

February 4, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RAFAEL VIVES, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered November 19, 2012, In the Court of Common Pleas of Berks County, Criminal Division, at No. CP-06-CR-0003291-2010.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and PLATT [*] , JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Rafael Vives, appeals from the judgment of sentence imposed following revocation of his probation. Counsel has filed a petition to withdraw representation and brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel's petition to withdraw and affirm the judgment of sentence.

We summarize the history of this case as follows: Appellant entered a negotiated guilty plea at Docket No. 3291-2010, to Count 1, Burglary (Person Present), 18 Pa.C.S.A. § 3502(a), on November 23, 2010. Pursuant to the guilty plea agreement, the trial court imposed a split sentence of 106 days to twenty-three months of incarceration in the Berks County Prison, followed by three years of probation. N.T., 11/23/10, at 7–8. Pursuant to a stipulation, Appellant was immediately paroled to serve his probation sentence. Split Sentence Order, 11/23/10. While on probation, Appellant pled guilty at Docket No. 3160-2011 to theft by unlawful taking or disposition, 18 Pa.C.S.A. § 3291(A), and simple assault, 18 Pa.C.S.A. § 2701(A)(1). The trial court sentenced Appellant on the simple assault conviction to incarceration in the Berks County Prison for a term of twelve months to twenty-four months, followed by two years of probation for the theft conviction. N.T., 12/19/12, at 3.

The trial court conducted a probation violation hearing on November 19, 2012. Following the hearing, the trial court revoked Appellant's probation and re-sentenced him on the burglary conviction at Docket No. 3291-2010 to incarceration in a state correctional facility for a term of nine months to four years, to be served consecutively to the sentence imposed on the simple assault conviction at Docket No. 3160-2011. N.T., 11/19/12, at 12. Appellant's aggregate sentence was total confinement for a term of twenty-one months to forty-eight months. This appeal followed, and counsel seeks to withdraw his representation of Appellant.

"When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005). Furthermore, there are clear mandates that counsel seeking to withdraw pursuant to Anders, McClendon and Santiago must follow:

In order for counsel to withdraw from an appeal pursuant to Anders … certain requirements must be met:

(1) counsel must petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous;
(2) counsel must file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and
(3) counsel must furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention.

Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.Super. 2005).

In Santiago, the Supreme Court set forth specific requirements for the brief accompanying ...


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