Com. v. Noel, D.
1366 MDA 2018
| Pa. Super. Ct. | Feb 25, 2019Background
- Deserea Lita Noel pled guilty in March 2016 (docket 403-2016) to retail theft and received one year intermediate punishment, community service, and a shoplifting class.
- After violations and a medical furlough, she was resentenced in September 2016 to 6–23 months imprisonment followed by 24 months probation; she was paroled in October 2016.
- While on parole, Noel was charged in February 2017 (docket 826-2017) with, inter alia, conspiracy to commit simple assault, was resentenced for a parole violation in March 2017, and paroled in July 2017.
- In October 2017 Noel pled guilty to conspiracy (docket 826-2017) and was admitted to the Good Wolf Treatment Court program under a sentence of 24 months intermediate punishment with immediate release to treatment.
- On July 18, 2018 Noel admitted violating supervision—discharge from treatment and positive drug tests—and the court revoked parole, imposing 2–5 years’ incarceration on the retail theft conviction and a concurrent 1–2 years’ term on the conspiracy conviction.
- Noel did not file a post-sentence motion but timely appealed; counsel filed an Anders brief and petition to withdraw. The Superior Court conducted independent review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by imposing state prison terms on VOP sentences | Noel argued the state-incarceration sentence was manifestly unreasonable | Commonwealth defended sentencing exercise of discretion and VOP revocation | Court affirmed: discretionary-sentencing challenge waived for failure to preserve at sentencing or in post-sentence motion; Anders counsel may withdraw and appeal is frivolous |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (establishes procedure for appointed counsel to withdraw when appeal is frivolous)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (articulates Anders requirements under Pennsylvania law)
- Commonwealth v. Daniels, 999 A.2d 590 (Pa. Super. 2010) (reviewing court must decide withdrawal motion before reaching merits)
- Commonwealth v. Yorgey, 188 A.3d 1190 (Pa. Super. 2018) (Anders requires independent review of record and issues raised)
- Commonwealth v. Fullin, 892 A.2d 843 (Pa. Super. 2006) (challenge to state prison vs county facility is discretionary sentencing issue)
- Commonwealth v. Hunter, 768 A.2d 1136 (Pa. Super. 2001) (discretionary sentencing challenges are not automatically reviewable)
- Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006) (four-part test for appellate reviewability of discretionary-sentencing claims)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (issues to discretionary aspects of sentence generally waived if not preserved)
- Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005) (counsel must notify client of Anders filing and right to proceed pro se or retain new counsel)