Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF : PENNSYLVANIA

v.

DAVID DRY

Appellant No. MDA 2016 : Appeal from the Judgment of Sentence July 25, 2016 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001698-2011, CP-22-CR-0004993-2015

BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.* FILED AUGUST 2017

MEMORANDUM BY OTT, J.: David Dry appeals from the judgment of sentence imposed July 25, Dauphin County Court of Common Pleas, following the in revocation of parole two separate cases. At Docket No. Dry pled guilty two counts of possession with intent deliver controlled substances ("PWID")1 (fentanyl). The court found Dry violated the terms sentenced him to serve the his sentence months, three days' imprisonment. At Docket 4993-2015, pled guilty to one count terroristic threats.2 court found Dry * Retired Senior Judge assigned to the Superior Court. P.S. § 780-113(a)(30). 18 Pa.C.S. §

violated the terms intermediate punishment ("IP") and electronic monitoring sentence, and sentenced him to two years' probation, concurrent with the sentence at Docket No. 1698-2011. Contemporaneous with this appeal, Dry's counsel filed petition to withdraw from representation and an brief. Anders v. California, U.S. 738 (1967); McClendon, A.2d 1185 The sole issue addressed in the brief challenges the sufficiency of the evidence supporting the court's revocation of Dry's and parole. Based on following, we affirm the judgment of sentence and grant counsel's petition to withdraw. relevant facts and procedural history underlying this appeal are as

follows. On December 2012, Dry entered guilty plea at Docket No. 1698-2011 two counts of PWID selling fentanyl undercover officer October and December of 2010. On June 27, 2015, the court imposed concurrent sentences of three months' imprisonment, $200 fines and costs. Dry was immediately paroled. In February of 2015, trial court determined Dry had violated terms failing make payments toward costs fines. Thereafter, March 12, 2015, the court resentenced him to serve the original sentence - months', six days' imprisonment - again granted him immediate parole.

On June 26, arrested charged terroristic threats at Docket based upon comments he made his caseworker and a nurse at Harrisburg Hospital. He subsequently entered a guilty plea to the charge on January 4, 2016, and was sentenced to a term of two years' IP, six months of electronic monitoring. The same day, was revoked for a second time at Docket No. 1698-2011, and he was again sentenced to serve the of term months' and one day imprisonment. Dry immediately released to YMCA. A detainer was issued both cases May of 2016. On July 25, 2016, the trial court conducted a probation/parole revocation hearing. Dry's probation officer testified Dry violated several terms of probation/parole was discharged from a facility for threatening the staff. At the conclusion of the hearing, the trial court found violated the terms of parole at Docket and his probation at Docket No. 4993- imposed the aforementioned sentences. This timely appeal 2015, followed.3 Thereafter, on September 12, 2016, the trial court modified Dry's On August 29, 2016, the trial court ordered Dry file a concise statement errors complained of on appeal pursuant Pa.R.A.P. 1925(b). After requesting, being granted, an extension time, on October 20, 2016, a statement her intention Dry's counsel filed file an Anders/McClendon brief. Pa.R.A.P. 1925(c)(4).

On October 28, 2016, this Court issued a per curiam order dismissing for failure file a docketing statement. However, the court granted Dry's motion for reconsideration, promptly reinstated the appeal on November 7, 2016. Following this Court's reinstatement of the appeal, trial court entered second order on November 29, 2016, directing Dry file concise statement. Thereafter, December counsel again filed notice of her intention file Anders/McClendon brief lieu of concise statement.

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sentence at both dockets "to release [Dry] on an approved home plan developed Dauphin County Management Unit." Order, 9/12/2016.4

When counsel files a petition to withdraw accompanying Anders brief, we must first examine the request to withdraw before addressing any of the substantive issues raised appeal. Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. Our review of the record reveals counsel complied requirements for withdrawal outlined in Anders, supra, and its progeny. Notably, counsel completed the following: (1) she filed petition for leave to withdraw, which she states her belief appeal is frivolous; (2) she filed an Anders brief pursuant dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); (3) she furnished copy of the brief Dry; (4) she advised right retain new counsel or proceed pro se. See Commonwealth v. Cartrette, A.3d 2013) (en from Dry banc). Moreover, we have received no correspondence supplementing the brief.

Therefore, we proceed "to make full examination of the proceedings make an independent judgment decide whether fact wholly frivolous." Flowers, A.3d (Pa. At the conclusion of the July 25, 2016, revocation hearing, the trial court had indicated its willingness transfer Dry to inpatient treatment facility. N.T., 7/25/2016, at

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Super. 2015) (quotations citation omitted). In so doing, we review not only the issues identified by appointed counsel in the brief, but examine all of the proceedings "make certain appointed counsel has not overlooked the existence of potentially non -frivolous issues." Id. at 1249 (footnote omitted).

The sole claim identified in counsel's Anders brief asserts the evidence of Dry's technical violations presented at the revocation hearing was insufficient support the court's revocation probation at Docket No. parole at Docket 1698-2011. See Brief at The decision whether revoke defendant's probation within sound discretion of the trial court. Commonwealth v. Colon, 102 A.3d (Pa. Super. 2014) (citation omitted), denied, 109 A.3d (Pa. 2015); Commonwealth v. Kalichak, 943 A.2d 285, (Pa. Super. Commonwealth has the burden prove violation by a preponderance of the evidence. Allshouse, 33 A.3d 31, 2011) (probation), appeal denied, 49 A.3d 441 (Pa. 2010); Kalichak, supra (parole).

Furthermore, "When assessing whether revoke probation, the trial court interests of society preventing future must the criminal conduct defendant against possibility of rehabilitating the defendant outside of prison.["] ... "[T]he reason for revocation probation need not necessarily be commission of or conviction subsequent criminal conduct. Rather, this Court has repeatedly acknowledged the very broad standard sentencing courts must use determining whether been violated[.]" "A probation violation is established whenever it is shown the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle accomplish not sufficient deter against future antisocial conduct." Colon, supra, 102 A.3d at (internal citations omitted).

Similarly, when considering the evidence supporting violation of parole, this Court explained: "This lighter burden of proof reflects the policy of parole revocation hearing whereby the emphasis is whether parole effective tool promote rehabilitation deter 'future antisocial conduct.' Commonwealth Gochenaur, A.2d 307, 309 1984) (qutotation omitted).

Here, Dry argues the revocation of both probation was based solely on insufficient evidence of technical violations. Although neither he nor counsel explicitly contested Commonwealth's evidence, counsel offered "an explanation for some [Dry's] conduct," which, Dry asserts "would not rise to level violation." Brief "[A] lot of those at 10. Further, Dry stated at the revocation hearing: things that were said didn't happen." N.T., 7/25/2016, at 6. Moreover, with regard to "unaccountability electronic monitoring," Dry asserts officer testified hospitalized during some of those periods. Brief at 11. Accordingly, he maintains: "It could be reasonably inferred that [Dry's] hospitalization made it impossible him comply with the condition remain at home address." Id.

Our review of the testimony from the July 25, 2016, revocation hearing reveals ample support for the court's ruling. Indeed, Dry's probation officer testified that violated the following conditions of probation and (1) refrain from "overt behavior;" (2) make payments toward parole: fine/costs; (3) may not move or change address, (4) comply with treatment, and (5) abstain from use of drugs. N.T., 7/25/2016, at 3. The probation officer explained Dry was discharged from drug and alcohol rehabilitation facility for "threatening staff becoming uncooperative with staff." Id. He further stated Dry had "no payment history" regard fines Id. probation officer costs, and, "did not have valid address." testified that "[o]n transport to Dauphin County Prison on May 26th, [Dry] did admit to abusing medications, opiates." Id. Lastly, probation officer noted Dry had periods of "unaccountability" electronic monitoring, although he acknowledged that during some of those times Dry was hospitalized or detained. Id. at

Neither counsel nor Dry contested any of the technical violations presented the probation officer. Counsel did note the dispute at the facility "started out" over "kind silly thing ... that [Dry] did Id. at 5. Further, he requested Dry be placed an not handle well." inpatient facility for mental health medical issues. Id. Dry agreed with this request, but stated "[A] lot of those things were said didn't happen." Id. at 6. He did not elaborate.

We conclude testimony Dry's probation officer, concerning the numerous technical violations Dry's parole, sufficient It well -settled "technical violations are support the court's ruling. sufficient trigger revocation" of probation parole. Commonwealth Sierra, 752 A.2d 910, 912 Here, Dry's actions established both parole have proven to be ineffective tools promoting deterring future antisocial conduct. See Colon, supra; Gochenaur, supra.

We agree counsel's assessment this claim is frivolous.

Moreover, we have conducted "a full examination of the proceedings" conclude that "the fact wholly frivolous." v. Flowers, supra, A.3d 1246, 1248.

Judgment of sentence affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

J seph D. Seletyn, Es .

Prothonotary

Date: 8/1/2017

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