Opinion
J-S62033-16 No. 1406 MDA 2015
09-09-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. DAVID LYNN GRIFFITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 16, 2015
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000080-2013 BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, David Lynn Griffith, appeals from the order entered in the Bradford County Court of Common Pleas, revoking his parole. We affirm and grant counsel's petition(s) to withdraw.
The trial court opinion accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
As a preliminary matter, counsel seeks to withdraw his representation pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago , supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa.Super. 2007).
In Santiago , supra , our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:
Neither Anders nor McClendon requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.Santiago , supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
* * *
Under Anders , the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.
[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.Id. at 178-79, 978 A.2d at 361.
Commonwealth v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981).
Instantly, appellate counsel filed a petition to withdraw. The petition states counsel conducted a conscientious review of the record and determined the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to retain new counsel or proceed pro se to raise any additional issues Appellant deems worthy of this Court's attention. In the Anders brief, counsel provides a summary of the facts and procedural history of the case. Counsel's argument refers to relevant law that might arguably support Appellant's issue. Counsel further states the reasons for his conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the requirements of Anders and Santiago.
Counsel initially filed two petitions to withdraw on May 2, 2016, but failed to attach a copy of the letter that counsel averred he had sent to Appellant, advising Appellant of his right to proceed pro se or with newly retained counsel. See id. See also Commonwealth v. Millisock , 873 A.2d 748 (Pa.Super. 2005) (holding counsel must attach as exhibit to petition to withdraw filed with this Court, copy of letter sent to client advising of client's rights). Following several orders by this Court, counsel filed, on August 10, 2016, a motion to amend his petition(s) to withdraw, acknowledging he had failed to send Appellant a letter advising him of his rights. Counsel attached to his motion the requisite notice letter and confirmed he sent the notice letter to Appellant. We grant counsel's motion to amend his petition(s) to withdraw.
Counsel raises the following issue on Appellant's behalf:
WHETHER THERE WAS SUFFICIENT EVIDENCE TO JUSTIFY THE REVOCATION OF [APPELLANT'S] PAROLE?( Anders Brief at 5).
Appellant has not responded pro se or submitted a counseled brief with new privately-retained counsel.
Our review of this issue implicates the following legal principles:
Unlike a probation revocation, a parole revocation does not involve the imposition of a new sentence. Indeed, there is no authority for a parole-revocation court to impose a new penalty. Rather, the only option for a court that decides to revoke parole is to recommit the defendant to serve the already-imposed, original sentence. At some point thereafter, the defendant may again be paroled.Commonwealth v. Kalichak , 943 A.2d 285, 290-91 (Pa.Super. 2008) (internal citations and footnote omitted). See also Commonwealth v. Mitchell , 632 A.2d 934 (Pa.Super. 1993) (explaining technical violations of parole conditions can justify revocation of parole).
Therefore, the purposes of a court's parole-revocation hearing—the revocation court's tasks—are to determine whether the parolee violated parole and, if so, whether parole remains a viable means of rehabilitating the defendant and deterring future antisocial conduct, or whether revocation, and thus recommitment, are in order. The Commonwealth must prove the violation by a preponderance of the evidence and, once it does so, the decision to revoke parole is a matter for the court's discretion. ...
Following parole revocation and recommitment, the proper issue on appeal is whether the revocation court erred, as a matter of law, in deciding to revoke parole and, therefore, to recommit the defendant to confinement. ...
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Maureen T. Beirne, we conclude Appellant's issue merits no relief. The trial court's opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed December 29, 2015, at 3-4) (finding: Appellant traveled to and lived in Luzerne County without obtaining permission and travel pass; Appellant tested positive for drugs while on parole; Appellant failed to submit to drug tests on several occasions; thus, Appellant violated terms and conditions of his parole in one or more ways, justifying revocation of his parole). Accordingly, we affirm on the basis of the trial court's opinion and following our independent review of the record, we grant counsel's petition(s) to withdraw.
The alternative citation for Commonwealth v. Ware is 737 A.2d 251, 253 (Pa.Super. 1999), appeal denied, 561 Pa. 657, 747 A.2d 900 (1999).
Order affirmed; counsel's petition(s) to withdraw are granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/9/2016
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