J-S60045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MARIO J. FIGUEROA

Appellant No. 1821 EDA 2015

Appeal from the Judgment of Sentence June 12, 2015

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0000430-2015

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED OCTOBER 16, 2015

Mario J. Figueroa appeals from the judgment of sentence entered on 

June 12, 2015, in the Court of Common Pleas of Northampton County 

following the acceptance of his open guilty plea to the charge of possession 

of drug paraphernalia.1 His arrest on the instant charges led to findings of 

probation violations (VOP), and incarceration, in both Pennsylvania and New 

York.2 Figueroa was sentenced to a term of two to four months 

incarceration on the possession of drug paraphernalia charge. In this timely 

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1 35 P.S. § 780-113(a)(32) – two empty packages of synthetic marijuana. 

The plea agreement was open as to sentencing, but three counts of 

possession of synthetic marijuana, § 780-113(a)(16), were nolle prossed as 

part of the agreement. 

2

Figueroa has not appealed his revocation sentence, and the record in his 

Pennsylvania VOP case is not part of this record.
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appeal, Figueroa raises two claims: (1) his sentence is illegal in that he has 

not been properly credited for time served, and (2) his sentence subjected 

him to double jeopardy. Counsel has filed an Anders3 brief, stating all 

issues are frivolous, along with a request to withdraw as counsel. Following 

a thorough review of the submissions by the parties, relevant law, and the 

certified record, we affirm. We also grant counsel leave to withdraw from 

representation.

Before we begin our substantive analysis, we must first review 

defense counsel's Anders brief and motion to withdraw. See

Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super. 

2007)(en banc ).

Prior to withdrawing as counsel on a direct appeal under 

Anders, counsel must file a brief that meets the requirements 

established by our Supreme Court in Santiago. The 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.

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3 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).
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Santiago, 978 A.2d at 361. Counsel also must provide a copy 

of the Anders brief to his client. Attending the brief must be a 

letter that advises the client of his right to: “(1) retain new 

counsel to pursue the appeal; (2) proceed pro se on appeal; or 

(3) raise any points that the appellant deems worthy of the 

court's attention in addition to the points raised by counsel in the 

Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 

(Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 

(2007).

Commonwealth v. Bennett, ___ A.3d ___, 2015 PA Super 198, at *1-2 

(Pa. Super. 9/17/2015). Our review of the certified records confirms that 

counsel has followed the dictates of Anders/Santiago. Additionally, we 

note that Figueroa has not filed a pro se response to counsel’s Anders brief. 

However, our review of the certified record compels us to make note of 

a procedural problem. Following his guilty plea, Figueroa filed a pro se

notice of appeal, despite being represented by counsel. Subsequently, the 

trial court ordered Figueroa to file a Pa.R.A.P. 1925(b) statement of matters 

complained of on appeal. This notice was forwarded to counsel as well as 

Figueroa. Before counsel could respond, Figueroa filed a pro se Rule 

1925(b) concise statement and the trial court authored a perfunctory Rule 

1925(a) memorandum. This action by the trial court is a violation of the 

prohibition against hybrid representation and would require us to remand 

this matter. See Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 

1993). However, while still within the 21 days allowed under the order, 

counsel filed a concise statement, listing the issues addressed in the Anders

brief. Our review of the record leads us to conclude that it is clear that if we 

remanded this matter, counsel would simply refile the same Rule 1925(b) 
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statement, the trial court would reissue its memorandum, returning us to 

the status quo, having only taxed judicial resources. Accordingly, while we 

remind the trial court that when a defendant is represented by counsel, pro 

se filings are not to be acted upon, we find counsel has prevented any 

prejudice to Figueroa by her actions in filing the court-ordered Rule 1925(b) 

statement within the 21 day time limit. Therefore, we will address the 

merits of this appeal.

The underlying facts of this matter are easily related. On April 14, 

2015, State Parole Officer Brian Fallock conducted a search of Figueroa’s 

home pursuant to the terms of Figueroa’s parole status. Officer Fallock 

found three full packages of synthetic marijuana and two empty packages of 

synthetic marijuana. Officer Fallock notified the Borough of Wilson Police 

Department. Police Officer Dan Dieter arrived and confiscated the evidence, 

and submitted it for testing, which confirmed it was a controlled substance. 

On September 23, 2014 a summons and complaint was filed against 

Figueroa, charging his with the above mentioned crimes. The filing of the 

charges acted as a violation of Figueroa’s probation in Pennsylvania and 

parole in New York. Prior to pleading guilty in this case, Figueroa served a 

four month sentence for violating his Pennsylvania probation and seven 

months in New York.

Our standard of review is well settled. “Issues relating to the legality of 

a sentence are questions of law.... Our standard of review over such 
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questions is de novo and our scope of review is plenary.” Commonwealth 

v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (citation omitted).

Figueroa argues both the probation violation sentences and the 

sentence for possession of drug paraphernalia are based upon the same 

criminal conduct. Accordingly, he argues either he should be credited with 

time served in his revocation sentences in the instant sentence or that the 

instant sentence represents double punishment and so violates the Fifth 

Amendment of the United States Constitution. Neither argument is 

persuasive.

We will begin with the double jeopardy claim. Figueroa argues that his 

arrest on the instant charge provided the basis for his serving an additional 

term of incarceration in both Pennsylvania and New York for violating his 

prior sentence in each jurisdiction.4 The Fifth Amendment prohibits any 

person from being “subject for the same offense to be twice put in jeopardy 

of life or limb.” U.S. Const., Amdt. 5. Accordingly, he argues he cannot be 

sentenced again for possessing the drug paraphernalia. 

Somewhat surprisingly, this precise argument does not appear to have 

been raised previously in Pennsylvania. Nonetheless, federal jurisprudence 

makes it clear that the argument is frivolous. United States of America v. 

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4

In revocation of probation circumstances, the claim of double jeopardy is 

based upon the reimposition of sentence on the original crime. See 

Commonwealth v. Hunter, 468 A.2d 505 (Pa. Super. 1983). However, 

Figueroa’s revocation sentences are not before us.
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Woods, 127 F.3d 990 (11th Cir. 1997), provides an excellent explanation of 

why this argument fails. Although we are not bound by a federal decision 

arising from Alabama, we adopt the reasoning. 

In Woods, the defendant committed a robbery while on probation for 

another unrelated crime. He pled guilty to violating the terms of his 

probation and was sentenced to a term of six months’ incarceration. He 

then claimed subsequent prosecution for the robbery charge was prohibited 

by operation of the double jeopardy clause of the Fifth Amendment to the 

United States Constitution. This argument was based on the United States 

Supreme Court decision in United States v. Dixon, 509 U.S. 688, 113 

S.Ct. 2849, 125 L.Ed.2d 556 (1993).5

In Dixon, the defendant had been arrested for murder and was 

released on bond. While awaiting trial on the murder charge, 

Dixon was arrested and indicted for possession with intent to 

distribute cocaine. Following an expedited hearing, Dixon was 

found guilty of criminal contempt for violating the terms of his 

bond release and sentenced to a term of imprisonment. 

Reasoning that “criminal contempt, at least in its nonsummary 

form, is a crime in every fundamental respect,” 509 U.S. at 699-

700, 113 S.Ct. at 2858 (internal quotation omitted), the 

Supreme Court found that a subsequent prosecution for the drug 

offense was barred by the Double Jeopardy Clause.

United States v. Woods, 127 F.3d at 992.

The Eleventh Circuit rejected this argument, stating:

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5

Pennsylvania has adopted Dixon in Commonwealth v. Yerby, 679 A.2d 

217 (Pa. 1996).
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The Supreme Court's resolution of the claim at issue in Dixon

does not alter our determination that revocation of probation for 

commission of a subsequent criminal offense does not constitute 

punishment for that criminal offense for purposes of double 

jeopardy; rather, revocation of probation constitutes a 

modification of the terms of the original sentence and implicates 

solely the punishment initially imposed for the offense conduct 

underlying that sentence. It is critical to note that, at the time he 

was adjudicated guilty with respect to the criminal contempt 

charge, the defendant in Dixon had been convicted of no other 

offense. Indeed, a prosecution and conviction for criminal 

contempt is punishment for the conduct constituting contempt of 

court, not for any underlying crime. See United States v. 

Soto-Olivas, 44 F.3d 788, 792 (9th Cir.), cert. denied, 515 U.S. 

1127, 115 S.Ct. 2289, 132 L.Ed.2d 290 (1995). In Dixon, there 

was no underlying crime to punish. In the instant case, because 

Woods' commission of a criminal offense constituted a violation 

of the terms of his probation, it consequently provided grounds 

for the revocation of his probation. The punishment imposed in 

the form of probation revocation, however, was part of his 

original sentence and thus constituted punishment for the crime 

underlying that sentence. Contrary to Woods' suggestion, 

subsequent prosecution for the criminal conduct committed while 

on probation constitutes prosecution for an entirely new offense 

and is not precluded by the Double Jeopardy Clause.

We note that every other circuit to have addressed this precise 

claim in the context of Dixon has reached the same result 

reached by our court today. See, e.g., United States v. Wyatt, 

102 F.3d 241, 245 (7th Cir. 1996) (“Because revocation of 

supervised release amounts only to a modification of the terms 

of the defendant's original sentence, and does not constitute 

punishment for the revocation-triggering offense, the Double 

Jeopardy Clause is not violated by a subsequent prosecution for 

that offense.”), cert. denied, 520 U.S. 1149, 117 S.Ct. 1325, 

137 L.Ed.2d 486 (1997); United States v. Woodrup, 86 F.3d 

359, 363 (4th Cir.) (“[T]he Double Jeopardy Clause does not 

prohibit the government from criminally prosecuting and 

punishing an offense which has formed the basis for revocation 

of a term of supervised release.”), cert. denied, 519 U.S. 944, 

117 S.Ct. 332, 136 L.Ed.2d 245 (1996); United States v. SotoOlivas, 44 F.3d at 791 (“[P]unishment imposed upon revocation 

of supervised release is punishment for the original crime, not 

punishment for the conduct leading to revocation.”). We similarly 
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conclude that revocation of probation constitutes part of a 

defendant's original sentence and does not preclude subsequent 

prosecution for the criminal conduct that gave rise to the 

probation revocation. Accordingly, Woods' conviction for robbery 

does not violate the Double Jeopardy Clause.

Id. at 992-93.

The foregoing reasoning is compelling and ably demonstrates the 

falsity of Figueroa’s argument. Accordingly, this claim merits no relief.

The reasoning in Woods is equally applicable to Figueroa’s claim that 

he is entitled to credit for time served from his probation violation sentences 

in his instant sentence.6 Simply put, any punishment imposed for violation 

of probation represents punishment for the original crime, not for the 

conduct that led to revocation. See Woods, supra, quoting United States 

v. Soto-Olivas. This reasoning is also found in Pennsylvania case law:

[T]he imposition of probation defers further sentencing of a 

defendant until such time as he violates the conditions placed on 

the probation, and when the violation of those conditions occurs, 

the resentence of the defendant is an integral element of the 

original conditional sentence of probation, not a second 

punishment for the same offense.

Commonwealth v. Hunter, 468 A.2d 505, 507 (Pa. Super. 1983).

Accordingly, Figueroa’s two to four month sentence for possession of 

drug paraphernalia is separate and distinct from either sentence Figueroa 

served pursuant to the revocation of his Pennsylvania or New York 

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6 We note that Figueroa was credited with 23 days of time served on the 

instant sentence. See Sentencing Form, 6/12/2015.
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probations. As such, he is not entitled to any offset from his current 

sentence.

Because we agree with counsel that Figueroa’s claims are frivolous and 

he is not entitled to relief, the petition for leave to withdraw as counsel is 

granted.

Judgment of sentence affirmed. Petition for leave to withdraw as 

counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2015