Com. v. Ostrander, K.
2160 MDA 2015
| Pa. Super. Ct. | Jan 27, 2017Background
- Ostrander pled guilty in March 2013 to theft by unlawful taking and possession of a controlled substance (two dockets) and received concurrent two-year probationary terms.
- While still serving an earlier sentence (docket #4081-2011), Ostrander admitted in 2014 that he violated the probation terms (alcohol and drug use, failure to comply with testing).
- At a Gagnon II hearing, Ostrander admitted the violations; the trial court revoked probation and resentenced him to 6 months to 729 days incarceration (with credit) on one docket and two years’ probation consecutive on the other.
- Ostrander filed post-sentence motions which were denied, then filed a Rule 1925(b) statement and appealed.
- Counsel filed an Anders/Santiago brief and motion to withdraw, identifying the sole arguable issue as whether the sentencing court had jurisdiction to revoke probation for conduct occurring before actual service of the probationary term. Ostrander filed a pro se response.
- The Superior Court performed an independent review, found counsel’s Anders compliance adequate, rejected Ostrander’s jurisdictional argument, found no nonfrivolous issues, affirmed the judgment of sentence, and granted counsel’s withdrawal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court lacked authority to revoke probation for violations that occurred before Ostrander began serving the probationary term | Ostrander: revocation improper because violations occurred while he was still serving a different sentence and before probation service began | Commonwealth: court may revoke probation for misconduct occurring after probation was imposed even if defendant had not yet commenced serving the probationary term | Court held revocation proper under precedent (Wendowski/Ware); probation term begins when granted, so misconduct after imposition can support revocation |
| Whether counsel complied with Anders/Santiago requirements when moving to withdraw | Ostrander: challenged counsel’s notice/form? (filed pro se response) | Counsel: provided Anders/Santiago brief, explained frivolity, and notified client of rights; any imprecision was harmless | Court found counsel substantially complied with Anders/Santiago and granted withdrawal |
Key Cases Cited
- Ware v. Commonwealth, 737 A.2d 251 (Pa. Super. 1999) (holds court may revoke probation even if defendant had not yet begun serving the probationary portion of a split sentence)
- Wendowski v. Commonwealth, 420 A.2d 628 (Pa. Super. 1980) (probation term is effective when granted; court may revoke for misconduct before actual service of probation)
- Carver v. Commonwealth, 923 A.2d 495 (Pa. Super. 2007) (court lacks authority to revoke probation for conduct occurring before imposition of probation)
- Santiago v. Commonwealth, 978 A.2d 349 (Pa. 2009) (procedural requirements for counsel’s Anders brief and withdrawal)
- Anders v. California, 386 U.S. 738 (U.S. 1967) (framework for counsel seeking to withdraw on appeal for lack of nonfrivolous issues)