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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RICHARD SMITH, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RICHARD SMITH, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 7, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005408-2009

Appeal from the Judgment of Sentence March 7, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004818-2007

BEFORE: BENDER, P.J.E., WECHT and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.

Richard Smith (Appellant) appeals from his March 7, 2013 judgment of sentence, which the trial court imposed after revoking Appellant's probation. In addition, Appellant's counsel has filed a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant the petition to withdraw.

In 2007, at trial court docket number CP-23-CR-0004818-2007, Appellant pled guilty to his second driving under the influence (DUI) violation pursuant to 75 Pa.C.S. § 3802(d). For that conviction, Appellant received a prison sentence of 90 days to 23 months, plus a consecutive sentence of three years of probation.

In 2009, Appellant again was arrested for DUI. That arrest violated the terms of his probation. In addition, following that arrest, Appellant pled guilty to violating, inter alia, 75 Pa.C.S. § 3802(c), at trial court docket number CP-23-CR-0005408-2009. For that conviction, Appellant received a prison sentence of 90 days to 23 months and a consecutive sentence of three years of probation.

In November of 2012, Appellant was convicted and sentenced for possessing crack cocaine and another DUI. On March 7, 2013, the trial court held a Gagnon II[1] hearing to address whether these convictions constituted violations of the terms of Appellant's probation.[2] The trial court found that Appellant violated his probation; thus, the court revoked his probation. The court sentenced Appellant to 18 to 36 months in prison at both docket number CP-23-CR-0004818-2007 and docket number CP-23-CR-0005408-2009. The court ordered these sentences to be served concurrently to one another but consecutively to Appellant's new sentences. The court also determined that Appellant is eligible for the Recidivism Risk Reduction Incentive program.[3]

Appellant timely filed a motion to reconsider his sentence. The trial court denied the motion, and Appellant timely filed a notice of appeal. The court ordered Appellant to comply with Pa.R.A.P. 1925(b). Appellant's counsel subsequently filed a statement pursuant to Pa.R.A.P. 1925(c)(4), indicating that he intended to file an Anders brief in this Court. The trial court issued an opinion, and counsel then sought to withdraw his representation of Appellant in this Court.

The following principles guide our review of this matter:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof….
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention.
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment ...

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