Com. v. Dessiso, B.
Com. v. Dessiso, B. No. 1096 EDA 2015
| Pa. Super. Ct. | Feb 22, 2017Background
- Appellant Byron Dessiso was convicted after a bench trial of persons not to possess firearms (18 Pa.C.S. § 6105), carrying a firearm without a license (18 Pa.C.S. § 6106), and carrying a firearm in public in Philadelphia (18 Pa.C.S. § 6108) after police found a loaded .22 in his jacket pocket.
- On August 13, 2010, the court imposed concurrent six-year probationary terms for two offenses and imposed no penalty for the § 6108 (carrying in public) conviction.
- On February 27, 2015, Dessiso pled guilty to two unrelated offenses, which constituted violations of his probation; the VOP court revoked probation that same day.
- The VOP court resentenced Dessiso to an aggregate 2½ to 5 years’ imprisonment: 2½–5 years for § 6105 (primary), concurrent 2½–5 years for § 6106, and a concurrent 2–4 years for § 6108.
- Counsel filed an Anders/Santiago brief seeking withdrawal; the Superior Court reviewed counsel’s compliance and conducted an independent review of the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Did appellate counsel comply with Anders/Santiago withdrawal procedures? | Commonwealth: counsel complied with required procedures. | Dessiso: (no separate pro se claim raised). | Court: Counsel complied; independent review required and undertaken. |
| 2. Could the VOP court impose a new sentence on the § 6108 conviction after the trial court had imposed "no further penalty" and the 30‑day modification period had passed? | Commonwealth: VOP court lacked authority to impose a new sentence for § 6108 because original sentence was a final "no further penalty." | Dessiso: (no preserved challenge; implicitly contesting revocation sentence). | Court: VOP court illegally sentenced § 6108 conviction; that concurrent 2–4 year term vacated; remainder of aggregate sentence affirmed. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedural requirements when appellate counsel seeks to withdraw)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (Anders‑type briefing standards in Pennsylvania)
- Commonwealth v. Williams, 997 A.2d 1205 (Pa. Super. 2010) (VOP court cannot resentence a conviction that received a final "no further penalty" after modification period)
- Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super. 2007) (appellate court’s duty to independently review Anders brief and record)
- Commonwealth v. Thur, 906 A.2d 552 (Pa. Super. 2006) (vacating concurrent illegal sentence need not trigger full resentencing when overall scheme unaffected)