Com. v. Moore, J.
1049 MDA 2017
| Pa. Super. Ct. | Dec 19, 2017Background
- Jordan Moore pleaded guilty in October 2016 to defiant trespass and was sentenced to nine months’ probation.
- While on probation he incurred new criminal charges; he stipulated to receiving the new charges and admitted violating probation.
- Moore waived a revocation hearing; the court revoked probation and resentenced him to one day to twelve months’ incarceration in a state correctional facility.
- Moore filed a post-sentence motion challenging the discretionary aspects of the sentence; the court denied relief and he appealed.
- Trial counsel filed an Anders brief and petition to withdraw; the Superior Court reviewed the record independently and considered both the sentencing and revocation authority claims.
Issues
| Issue | Moore's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the sentencing court abused discretion by placing Moore in a state correctional facility rather than county jail | Moore argued the court failed to adequately consider his request to be confined in Franklin County Jail to remain near family | Court argued sentence was within its discretion and within the allowable range; consideration of preferred place of confinement is not mandatory | Court held no abuse of discretion; sentencing within allowable range and court did consider but permissibly rejected Moore’s request |
| Whether the revocation court lacked authority to revoke probation before disposition of new charges | Moore argued probation could not be revoked based solely on the filing of new charges prior to conviction | Commonwealth relied on precedent allowing revocation after new charges are filed and relied on Moore’s stipulation to violations | Court held revocation prior to disposition of new charges is permitted and Moore had stipulated to violations, so claim fails |
| Whether counsel properly preserved and briefed discretionary-sentencing claim under Pa.R.A.P.2119(f) in Anders context | Moore sought review despite counsel’s Anders brief lacking a 2119(f) statement | Commonwealth noted omission but argued review unnecessary or waived; in Anders context court may nevertheless review | Court exercised discretion to address the sentencing claim despite missing 2119(f) statement because Anders withdrawal requires independent review |
| Whether counsel’s withdrawal and alleged conflict merit relief or remand | Moore asserted counsel was ineffective and should have requested change of venue due to civil suit against county | Commonwealth noted ineffective-assistance claims belong in collateral review and no documentation of conflict presented | Court granted counsel’s Anders withdrawal as procedurally proper and found appeal frivolous on merits; ineffective-assistance claims not evaluated on direct appeal |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (standard for counsel seeking to withdraw when appeal is frivolous)
- Santiago v. Commonwealth, 978 A.2d 349 (Pa. 2009) (Pennsylvania-specific Anders requirements)
- Moury v. Commonwealth, 992 A.2d 162 (Pa. Super. 2010) (four-part test for discretionary-aspect sentencing appeals)
- Kates v. Commonwealth, 305 A.2d 701 (Pa. 1973) (revocation of probation may follow receipt of new charges before disposition)
- Sierra v. Commonwealth, 752 A.2d 910 (Pa. Super. 2000) (sentencing after probation revocation is within trial court’s discretion)