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[U] Commonwealth v. Burgess

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BERNARD BURGESS, Appellant

NON-PRECEDENTIAL DECISION

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. [*]

MEMORANDUM

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 ...


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