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Commonwealth v. Dempster

Superior Court of Pennsylvania

May 8, 2018

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MELISSA R. DEMPSTER, Appellant

          Appeal from the Judgment of Sentence November 22, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0004598-2015

          BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

          OPINION

          DUBOW, J.

         Appellant, Melissa R. Dempster, appeals from the Judgment of Sentence entered following the revocation of her probation. On appeal, Appellant challenges the discretionary aspects of her sentence, arguing that, in imposing a term of one to two years' imprisonment, the violation of probation ("VOP") court imposed a harsh and excessive sentence. Appellant's counsel filed a Petition to Withdraw as Counsel and a Brief pursuant to Anders v. California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After a full examination of all the proceedings, we find that this appeal is frivolous. Accordingly, we affirm Appellant's Judgment of Sentence and grant counsel's Petition to Withdraw.

         On October 1, 2015, Appellant entered a negotiated guilty plea to one count of Retail Theft, graded as a misdemeanor of the second degree.[1] That same day, the trial court imposed the negotiated sentence of two years' probation.

         While serving her probationary sentence under the trial court's supervision, Appellant (1) failed to report to her probation officer as directed; (2) overdosed on heroin and was hospitalized; and (3) failed to pay $796.50 in court costs and fines. See Request for Bench Warrant, filed 8/3/16. She was arrested and detained for approximately 75 days until her VOP hearing.

         On November 22, 2016, the trial court, sitting as the VOP court, conducted a Gagnon II[2] hearing. Appellant, who participated via video conference and was represented by counsel, stipulated to the above probation violations. N.T., 11/22/16, at 3. The VOP court found that Appellant had violated her probation and imposed the maximum sentence of one to two years' incarceration.[3] Id. at 7. See 18 Pa.C.S. § 1104(2) (providing a maximum term of imprisonment of "[t]wo years in the case of a misdemeanor of the second degree."). The trial court reasoned that its sentence would "drive[] home the seriousness of [Appellant's] addiction" and provide access to "state recovery programs" to treat Appellant's serious heroin addiction after other treatment options had been ineffective. Id. at 5-6.[4] Appellant did not file a Post-Sentence Motion or a Motion to Reconsider her sentence.

         On December 20, 2016, Appellant filed a timely Notice of Appeal.

         On January 6, 2017, the trial court entered an Order pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a concise statement of matters complained of on appeal within twenty-one days. Instead, on January 25, 2017, Appellant's counsel filed a statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). On February 2, 2017, the VOP court filed a brief Opinion indicating that it would not opine on any issues given counsel's intent to file an Anders brief. See VOP Court Opinion, filed 2/2/17, at 1-2 (citing Commonwealth v. McBride, 957 A.2d 752, 758 (Pa. Super. 2008)).

         On April 18, 2017, counsel for Appellant filed an Anders Brief and a Petition to Withdraw as Counsel. Counsel appended a copy of a letter addressed to Appellant informing Appellant of counsel's Petition to Withdraw and her right to retain new counsel or proceed pro se. Appellant did not file a response.

         In his Anders Brief, counsel raised one issue:

Whether the 1 to 2 year term of imprisonment imposed herein is harsh and excessive under the circumstances?

Anders Brief at 1.

         On August 18, 2017, this Court certified this case for en banc review[5] ...


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