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[U] Commonwealth v. Burgess

Superior Court of Pennsylvania

February 24, 2014



Appeal from the Judgment of Sentence May 16, 2013 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0005004-2009

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]



Appellant, Bernard Burgess, appeals from the judgment of sentence imposed by the trial court after it revoked his probation. 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 the judgment of sentence.

On July 17, 2009, Appellant entered a negotiated guilty plea to aggravated assault and possessing an instrument of crime for beating an elderly victim with his own cane. Appellant received a county sentence of not less than eleven and one-half months nor more than twenty-three months' incarceration to be followed by three years of reporting probation. (See Trial Court Opinion, 7/18/13, at 1). As a condition of his sentence, Appellant was ordered to participate in anger management classes, stay away from the victim, and to comply with drug treatment and the requirements of the court Mental Health Unit, to which his case was transferred, under the supervision of the common pleas court. Appellant received treatment through the Philadelphia Community Treatment Teams Incorporated (CTT). While under supervision, he twice failed to report, and received corrective sanctions three times. After he tested positive for marijuana, Appellant left a threatening voicemail for CTT staff.

On May 16, 2013, after a hearing, the trial court revoked Appellant's probation and sentenced him to a term of not less than one and a half nor more than three years' incarceration in a state correctional institution, with credit for time served. The court denied Appellant's motion for reconsideration of sentence. This timely appeal followed.

In lieu of a Rule 1925(b) statement, counsel filed notice of its intent to file an Anders/McClendon brief.[1] See Pa.R.A.P. 1925(c)(4). The trial court filed an abbreviated opinion on July 18, 2013, citing to the notes of testimony of the revocation and sentencing hearing. (See Trial Ct. Op., at 2-3; N.T. Sentencing, 5/16/13, at 3-15). Counsel filed an Anders brief and a petition to withdraw.

In the Anders brief, counsel sets forth two issues that arguably support the appeal:

A. Was evidence that [Appellant] had twice failed to report, thrice received corrective sanctions, threatened staff and tested positive for marijuana sufficient to revoke his probation for technical violations?
B. Was the probation revocation sentence excessive in light of the underlying technical violations?

(Anders Brief, at 2).

Initially, we note that we may not address the merits of the issue raised on appeal without first reviewing the request to withdraw. See 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. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super. 2009).

Here, the petition to withdraw from representation states that counsel conscientiously examined the record and determined that the appeal would be wholly frivolous. (See Petition to Withdraw as Counsel, 8/09/13, at 1). Counsel notified Appellant that the Defender Association was seeking permission to withdraw and furnished Appellant with copies of the petition to withdraw and the 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.[2] Accordingly, we conclude that counsel has satisfied the procedural requirements of Anders.

Next, we determine whether counsel's Anders brief meets the directives of Santiago, supra. According to Santiago:

[I]n 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.

In this appeal, counsel has provided the facts and procedural history of the case. Additionally, the Anders brief refers to the issues that could arguably support the appeal, and concludes that the issues are wholly frivolous.

Counsel reasons that the issues are frivolous because Appellant did not dispute that he was in technical violation of probation, and his maximum sentence of three years incarceration, (which was seven years less than the statutory maximum of ten years' incarceration), was not excessive in light of the underlying technical violations. (See Anders Brief, at 10-11). Accordingly, we find that counsel has complied with the minimum requirements of Anders/Santiago.

We now examine the issues raised on appeal. First, the Anders brief raises the question of whether the evidence was sufficient to revoke probation. (See id. at 2).

Our standard of review of the trial court's revocation of probation is well-settled:

The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment-a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa.Super. 2011), appeal denied, 49 A.3d 441 (Pa. 2012) (citation omitted). This Court has recently addressed our scope of review: "[W]e unequivocally hold that this Court's scope of review in an appeal from a revocation sentencing includes discretionary sentencing challenges." Commonwealth v. Cartrette, 2013 WL 6821398, at *3 (Pa.Super. filed December 24, 2013) (en banc).

"The court may revoke an order of probation upon proof of the violation of specified conditions of the probation." 42 Pa.C.S.A. § 9771(b). "[T]echnical violations are sufficient to trigger the revocation of probation." Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000) (citation omitted).

Here, Appellant did not dispute that he had committed the technical violations at issue. (See Anders Brief, at 10). The evidence at the revocation hearing established that he had repeatedly violated the conditions of his probation, and consistently failed to comply with the terms of his treatment program, as well as threatening staff. We conclude that the evidence was sufficient to support the trial court's revocation of probation. The first issue does not merit relief.

In the second issue, the Anders brief raises the question of whether the revocation sentence was excessive in light of the underlying technical violations. (See Anders Brief, at 2).

"[T]here is no absolute right to appeal when challenging the discretionary aspect of a sentence." Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010) (citations omitted). Rather, an "[a]ppeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code." Id. (citation omitted); see also 42 Pa.C.S.A. § 9781(b) ("Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.").

Further, Pennsylvania Rule of Appellate Procedure 2119(f) provides:
(f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

Pa.R.A.P. 2119(f).

Here, the Anders Brief contains a Rule 2119(f) statement. (See Anders Brief, at 7-8). However, in the Rule 2119(f) statement, after acknowledging that the Sentencing Guidelines are inapplicable to sentences on revocation of probation, the only discernible basis advanced for the claim is an assertion that the sentence is "excessive and manifestly unreasonable." (Id. at 8). The assertion does not propose a specific provision of the Sentencing Code or the fundamental norm underlying the sentencing process that the trial court violated in imposing the sentence. A mere bald allegation of excessiveness is insufficient to permit discretionary review. See Commonwealth v. Trippett, 932 A.2d 188, 202-03 (Pa.Super. 2007). The second claim fails.

On independent review, we find no other non-frivolous issues which would warrant review.

Judgment of sentence affirmed.

Petition to withdraw granted.

Judgment Entered.

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