J-S04011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL A. KRAVITZ,

Appellant No. 2484 EDA 2016

Appeal from the Judgment of Sentence July 8, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0006757-2014

BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2017

Appellant, Michael A. Kravitz, appeals from the judgment of sentence 

imposed on July 8, 2016, in the Delaware County Court of Common Pleas 

following the revocation of Appellant’s parole on the charge of simple 

assault. Appellant’s counsel has filed a petition to withdraw representation 

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern 

withdrawal from representation on direct appeal. Appellant has not filed a 

pro se response to counsel’s petition to withdraw. Following our review, we 

grant counsel’s petition to withdraw and affirm the judgment of sentence.

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history are as follows. Appellant 

entered a negotiated guilty plea to simple assault graded as a second degree 

misdemeanor and was sentenced on December 15, 2014, to incarceration 

for three to twenty-three months. Appellant was granted parole. Appellant 

violated the terms of his parole, and following a Gagnon II1 hearing on July 

8, 2016, was sentenced to full back time of 534 days. The court granted 

parole upon Appellant’s completion of a county prison program, Prep II. 

This timely appeal followed.

Before we address any question raised on appeal, we first must 

resolve appellate counsel’s request to withdraw. Commonwealth v. 

Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). See

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (stating, 

“When faced with a purported Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw.”).

There are procedural and briefing requirements imposed upon an 

attorney who seeks to withdraw on appeal. The procedural mandates are 

that counsel must:

____________________________________________

1

 Gagnon v. Scarpelli, 411 U.S. 778 (1978). Inquiry by our 

prothonotary’s office to the trial court revealed that there are no notes of 

testimony for the July 8, 2016 Gagnon II hearing or for any other 

proceeding. We have utilized, inter alia, the Gagnon II hearing report of 

the parole agent dated June 15, 2016, that was presented to the court on 

July 8, 2016.
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1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; 2) furnish a copy 

of the brief to [his client]; and 3) advise [his client] that he or 

she has the right to retain private counsel or raise additional 

arguments that the [client] deems worthy of the court’s 

attention.

Cartrette, 83 A.3d at 1032 (citation omitted).

In addition, our Supreme Court, in Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009), stated that an Anders brief must:

(1) provide a summary of the procedural history and facts, with 

citations to the record;

(2) refer to anything in the record that counsel believes arguably 

supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; 

and

(4) state counsel’s reasons for concluding that the appeal is 

frivolous. Counsel should articulate the relevant facts of record, 

controlling case law, and/or statutes on point that have led to 

the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. The Supreme Court reaffirmed the principle 

that indigents “generally have a right to counsel on a first appeal, [but] . . . 

this right does not include the right to bring a frivolous appeal and, 

concomitantly, does not include the right to counsel for bringing such an 

appeal.” Id. at 357 (citation omitted). The Court stated:

In the Court’s view, this distinction gave meaning to the Court’s 

long-standing emphasis on an indigent appellant’s right to 

“advocacy.” . . . As the Court put it, “although an indigent whose 

appeal is frivolous has no right to have an advocate make his 

case to the appellate court, such an indigent does, in all cases, 

have the right to have an attorney, zealous for the indigent’s 
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interests, evaluate his case and attempt to discern nonfrivolous 

arguments.”

Santiago, 978 A.2d at 357–358 (citation omitted).

Counsel has substantially complied with the requirements for 

withdrawal outlined in Anders and Santiago. Specifically, counsel 

requested to withdraw based upon his determination that the appeal is 

“wholly frivolous,” and he stated his reasons for that conclusion with 

appropriate support. Application to Withdraw Appearance, 10/24/16, at ¶ 3. 

Additionally, counsel sent a letter to Appellant, and he attached a copy of 

the letter to his motion. Counsel states that he informed Appellant that he 

has filed a motion to withdraw and an Anders brief, and he apprised 

Appellant of his rights in light of the motion to withdraw as counsel. Thus, 

Appellant’s appellate counsel has satisfied the requirements of Anders and 

Santiago. Moreover, our review of the record reveals no correspondence 

from Appellant supplementing the Anders brief. We thus conclude that the 

procedural and briefing requirements for withdrawal have been met.

In the Anders brief, counsel presents the following issue for our 

review: “Whether Appellant’s sentence was harsh and excessive and an 

abuse of discretion in light of the facts of the present case?” Anders Brief 

at 3. Counsel asserts that Appellant should not “suffer a total confinement 

sentence since the underlying case was a misdemeanor, he had developed 

no new case, and had successfully completed 17 months on the street.” 

Anders Brief at 6. Appellant maintains that his seventeen months “on the 
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street” do not indicate “that he might have committed other crimes if 

released.” Id. He suggests that because the underlying case was not a 

felony, “less than total confinement may not have depreciated the 

seriousness of the simple assault.” Id.

Our review of a parole-revocation hearing and concomitant sentence is 

well established:

Unlike a probation revocation, a parole revocation does not 

involve the imposition of a new sentence. Commonwealth v. 

Mitchell, 429 Pa. Super. 435, 632 A.2d 934, 936 (1993). 

Indeed, there is no authority for a parole-revocation court to 

impose a new penalty. Id. Rather, the only option for a court 

that decides to revoke parole is to recommit the defendant to 

serve the already-imposed, original sentence. Id. . . .

Therefore, the purposes of a court’s parole-revocation 

hearing—the revocation court’s tasks—are to determine whether 

the parolee violated parole and, if so, whether parole remains a 

viable means of rehabilitating the defendant and deterring future 

antisocial conduct, or whether revocation, and thus 

recommitment, are in order. Mitchell, 632 A.2d at 936, 

937. . . .

Following parole revocation and recommitment, the proper 

issue on appeal is whether the revocation court erred, as a 

matter of law, in deciding to revoke parole and, therefore, to 

recommit the defendant to confinement. Mitchell, 632 A.2d at 

936. Accordingly, an appeal of a parole revocation is not 

an appeal of the discretionary aspects of sentence. Id.

As such, a defendant appealing recommitment cannot 

contend, for example, that the sentence is harsh and excessive. 

[Commonwealth v.] Galletta, 864 A.2d [532,] 539 [(Pa. 

Super. 2004)]. Such a claim might implicate discretionary 

sentencing but it is improper in a parole-revocation appeal. Id. 

Similarly, it is inappropriate for a parole-revocation appellant to 

challenge the sentence by arguing that the court failed to 

consider mitigating factors or failed to place reasons for [the] 

sentence on the record. Commonwealth v. Shimonvich, 858 
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A.2d 132, 135 (Pa. Super. 2004). Challenges of those types 

again implicate the discretionary aspects of the underlying 

sentence, not the legal propriety of revoking parole. Id.

Commonwealth v. Kalichak, 943 A.2d 285, 290–291 (Pa. Super. 2008) 

(emphasis added).

First, we note the grading of the underlying offense is irrelevant. As 

the Kalichak Court explained, “[T]he only option for a court that decides to 

revoke parole is to recommit the defendant to serve the already-imposed, 

original sentence.” Id. at 290. Likewise, Appellant’s claim that his sentence 

was harsh and excessive invokes a challenge to the discretionary aspects of 

sentencing, an issue that is not appropriate in an appeal from a parole 

revocation sentence. Id. at 291. Accordingly, we conclude Appellant has 

failed to present any viable claim for our review.

We agree with counsel’s assessment that this appeal is wholly 

frivolous. Thus, we affirm the judgment of sentence and grant counsel’s 

petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2017