Commonwealth v. Dempster

J-E04007-17

2018 PA Super 121

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

MELISSA R. DEMPSTER, :

:

Appellant : No. 28 EDA 2017

Appeal from the Judgment of Sentence November 22, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0004598-2015

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,

SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

OPINION BY DUBOW, J.: FILED MAY 08, 2018

Appellant, Melissa R. Dempster, appeals from the Judgment of Sentence

entered following the revocation of her probation. On appeal, Appellant

challenges the discretionary aspects of her sentence, arguing that, in imposing

a term of one to two years’ imprisonment, the violation of probation (“VOP”)

court imposed a harsh and excessive sentence. Appellant’s counsel filed a

Petition to Withdraw as Counsel and a Brief pursuant to Anders v. California,

386 U.S. 738 (1967), as elucidated by our Supreme Court in Commonwealth

v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). After a full examination of all the

proceedings, we find that this appeal is frivolous. Accordingly, we affirm

Appellant’s Judgment of Sentence and grant counsel’s Petition to Withdraw.

J-E04007-17

On October 1, 2015, Appellant entered a negotiated guilty plea to one

count of Retail Theft, graded as a misdemeanor of the second degree.1 That

same day, the trial court imposed the negotiated sentence of two years’

probation.

While serving her probationary sentence under the trial court’s

supervision, Appellant (1) failed to report to her probation officer as directed;

(2) overdosed on heroin and was hospitalized; and (3) failed to pay $796.50

in court costs and fines. See Request for Bench Warrant, filed 8/3/16. She

was arrested and detained for approximately 75 days until her VOP hearing.

On November 22, 2016, the trial court, sitting as the VOP court,

conducted a Gagnon II2 hearing. Appellant, who participated via video

conference and was represented by counsel, stipulated to the above probation

violations. N.T., 11/22/16, at 3. The VOP court found that Appellant had

violated her probation and imposed the maximum sentence of one to two

years’ incarceration.3 Id. at 7. See 18 Pa.C.S. § 1104(2) (providing a

118 Pa.C.S. § 3929(a)(1). For a second-degree misdemeanor, a trial court

may sentence a defendant to a maximum term of incarceration of up to two

years. 18 Pa.C.S. § 1104(2).

2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3 Our review of the record shows that the form sentencing order completed

by the VOP court shows that, in a standard provision, the court ordered that

Appellant “shall receive such credit for time served as he/she is entitled by

the laws of the Commonwealth of Pennsylvania.” Certificate of Imposition of

[Judgment] of Sentence, dated 11/22/16, at 1. This provision sufficiently

ordered time-credit to avoid any issues regarding the maximum sentence.

See 42 Pa.C.S. § 9760 (“Credit for time served”).

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maximum term of imprisonment of “[t]wo years in the case of a misdemeanor

of the second degree.”). The trial court reasoned that its sentence would

“drive[] home the seriousness of [Appellant’s] addiction” and provide access

to “state recovery programs” to treat Appellant’s serious heroin addiction after

other treatment options had been ineffective. Id. at 5-6.4 Appellant did not

file a Post-Sentence Motion or a Motion to Reconsider her sentence.

On December 20, 2016, Appellant filed a timely Notice of Appeal.

On January 6, 2017, the trial court entered an Order pursuant to

Pa.R.A.P. 1925(b) directing Appellant to file a concise statement of matters

complained of on appeal within twenty-one days. Instead, on January 25,

2017, Appellant’s counsel filed a statement of intent to file an Anders brief

pursuant to Pa.R.A.P. 1925(c)(4). On February 2, 2017, the VOP court filed

a brief Opinion indicating that it would not opine on any issues given counsel’s

intent to file an Anders brief. See VOP Court Opinion, filed 2/2/17, at 1-2

(citing Commonwealth v. McBride, 957 A.2d 752, 758 (Pa. Super. 2008)).

On April 18, 2017, counsel for Appellant filed an Anders Brief and a

Petition to Withdraw as Counsel. Counsel appended a copy of a letter

addressed to Appellant informing Appellant of counsel’s Petition to Withdraw

and her right to retain new counsel or proceed pro se. Appellant did not file

a response.

In his Anders Brief, counsel raised one issue:

4 For these same reasons, the VOP court rejected Appellant’s request for a

sentence of one year less a day to two years less a day.

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Whether the 1 to 2 year term of imprisonment imposed herein is

harsh and excessive under the circumstances?

Anders Brief at 1.

On August 18, 2017, this Court certified this case for en banc review5

regarding the following issue:

Whether the scope of the appellate court’s independent review of

the certified record, once Counsel seeks permission to withdraw

representation, necessitates: (1) a comprehensive review of the

record for any issues that Counsel might have overlooked; (2)

review limited to the issues either Counsel or the pro se appellant

raised; or (3) review limited to the issues raised by either Counsel

or pro se appellant, and issues that the appellate court is obligated

to review sua sponte. Compare Commonwealth v. Flowers,

113 A.3d 1246 (Pa. Super. 2015) (espousing comprehensive

review), with Commonwealth v. Baney, 860 A.2d 127 (Pa.

Super. 2004) (limiting review to issues raised in Anders brief and

pro se response), and Commonwealth v. Schmidt, [165 A.3d

1002] (Pa. Super. June 14, 2017) (Gantman, P.J., concurring)

(suggesting middle ground level of review, in which appellate

court examines entire record for issues raised in briefs and for

other issues appearing on face of record which court can raise sua

sponte)[.]

Order Directing En Banc Certification, 8/18/17, at 1-2. The parties have filed

supplemental briefs addressing this issue.

Before we address the merits of this appeal, we must determine whether

counsel has complied with the procedures provided in Anders and its progeny.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc).

5 This Court also certified Commonwealth v. Yorgey, No. 3376 EDA 2016

for en banc review, which raised the same issue.

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In Anders v. California, 386 U.S. 738 (1967), the United States

Supreme Court addressed “the extent of the duty of a court-appointed

appellate counsel to prosecute a first appeal from a criminal conviction, after

that attorney has conscientiously determined that there is no merit to the

indigent’s appeal.” Id. at 739. California had permitted Anders’s attorney to

withdraw based on a simple letter stating, “I will not file a brief . . . there is

no merit to the appeal.” Id. at 742. After concluding that the California

procedures violated the Fourteenth Amendment’s principles of substantial

equality and fair process, the Supreme Court outlined a permissible procedure.

Id. at 744.

The Supreme Court acknowledged that in cases that involve frivolous

appeals, counsel may request and receive permission to withdraw without

depriving the indigent defendant of his right to representation, provided

certain safeguards are met. Id. at 741-42. Thus, Counsel who wishes to

withdraw must file a petition to withdraw stating that he or she has made a

conscientious examination of the record and determined that the appeal would

be frivolous. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.

2004). Also, counsel must provide a copy of the Anders brief to the appellant

and inform him of his right to proceed pro se or retain different counsel. Id.

See also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005);

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing

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that counsel must inform client by letter of rights to proceed once counsel

moves to withdraw and append a copy of the letter to the petition).

The substance of the 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.” Commonwealth v.

Santiago, 978 A.2d 349, 361 (Pa. 2009). In McCoy v. Court of Appeals of

Wisconsin, Dist. 1, 486 U.S. 429 (1988), the U.S. Supreme Court noted that

the Anders brief is designed, inter alia, to assist the court in making “the

critical determination whether the appeal is indeed so frivolous that counsel

should be permitted to withdraw.” Id. at 439.

Here, counsel’s Anders Brief has complied with the mandated

procedure for withdrawing as counsel.

Anders also provides that once the court has determined that counsel

satisfied the above requirements, “the court—not counsel—then proceeds,

after a full examination of all the proceedings, to decide whether the case is

wholly frivolous. If it so finds[,] it may grant counsel’s request to withdraw

and dismiss the appeal[.]” Anders, 386 U.S. at 744. See also

Commonwealth v. Baker, 239 A.2d 201 (Pa. 1968) (holding that

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Pennsylvania courts must follow the Anders procedure). Thus, in addition to

reviewing counsel’s brief submitted with the withdrawal motion to ascertain

whether counsel has adequately performed his or her duty with respect to

providing proper representation to the appellant, a reviewing court must:

then proceed[], after a full examination of all the proceedings,

to decide whether the case is wholly frivolous. If it so finds it

may grant counsel’s request to withdraw and dismiss the appeal

insofar as federal requirements are concerned, or proceed to a

decision on the merits, if state law so requires. On the other hand,

if it finds any of the legal points arguable on their merits (and

therefore not frivolous) it must, prior to decision, afford the

indigent the assistance of counsel to argue the appeal.

Anders, supra at 744 (emphasis added).

Our Court has inconsistently applied the mandate set forth in Anders

and its progeny that we conduct “a full examination of all the proceedings, to

decide whether the case is wholly frivolous” before granting an attorney’s

petition to withdraw from representation. Anders, supra at 744. The

discrepancy in our jurisprudence appears to stem from a disagreement as to

whether the Anders requirement of “a full examination of all the proceedings”

pertains only to a review of the record to ascertain “the merits of the appeal”

as that appeal has been presented by counsel seeking to withdraw or whether

Anders requires a review of the whole record to ascertain complete frivolity,

i.e., that no issues appearing to have merit exist. Id.; Santiago, supra at

358.

In some cases, we have limited our scope of review to confirm

frivolousness of only those issues presented by counsel in the Anders brief.

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See, e.g., Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super.

2013); Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012);

and Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010). In

other cases, however, we have defined the scope of review required by

Anders as one necessitating a review of the entire record for “any other

potentially non-frivolous issues.” Commonwealth v. Goodwin, 928 A.2d

287, 292 (Pa. Super. 2007) (en banc). See also Commonwealth v.

Harden, 103 A.3d 107, 112 (Pa. Super. 2014) (reviewing entire record and

finding one issue “worthy of discussion” but ultimately frivolous);

Commonwealth v. Palm, 903 A.2d 1244, 1247 (Pa. Super. 2006)

(independently reviewing entire record before concluding that “we cannot

discern any other potentially non-frivolous issues.”); In re S.M.B., 856 A.2d

1235, 1238 (Pa. Super. 2004) (same); Commonwealth v. Ferguson, 761

A.2d 613, 616 (Pa. Super. 2000) (same).

Although the Anders Court did not delineate the exact meaning of “full

examination of all the proceedings,” the Pennsylvania Supreme Court

recognized in Santiago, supra, that only “complete frivolity . . . supports

counsel’s request to withdraw and a court’s order granting the request.”

Santiago, supra at 358 (citation omitted). The Santiago Court further

observed that Anders not only requires counsel to conduct an exhaustive

examination of the record, but also “place[s] the responsibility on the

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reviewing court to make an independent determination of the merits of the

appeal.” Id. at 358.

Further, this Court has stated that “part and parcel of Anders is our

Court’s duty to review the record to insure no issues of arguable merit have

been missed or misstated.” Commonwealth v. Vilsaint, 893 A.2d 753, 755

(Pa. Super. 2006). This view comports with the main purpose of Anders,

which is to make sure that an appellant is provided with adequate counsel as

required by the Sixth Amendment of the U.S. Constitution. Ultimately, our

Court’s overriding task is to ensure that a criminal defendant’s loss of liberty

is reviewed with the gravity with which it is entitled. When counsel seeks to

withdraw, Anders requires nothing less.

In light of the constitutional rights at issue, we must give Anders a most

generous reading and review “the case” as presented in the entire record with

consideration first of issues raised by counsel. Anders, 386 U.S. at 744.

Contrary to the Dissenting Opinion in Flowers, supra, this review does not

require this Court to act as counsel or otherwise advocate on behalf of a party.

Rather, it requires us only to conduct a simple review of the record to ascertain

if there appear on its face to be arguably meritorious issues that counsel,

intentionally or not, missed or misstated.

With the above principles in mind, we will first review the issue raised

in counsel’s Anders Brief. In asserting a sentence is “harsh and excessive

under the circumstances,” counsel raises a challenge to the discretionary

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aspects of Appellant’s sentence. Challenges to the discretionary aspects of

sentence are not appealable as of right. Commonwealth v. Leatherby, 116

A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the

sentencing court’s discretion must invoke this Court’s jurisdiction by (1) filing

a timely notice of appeal; (2) properly preserving the issue at sentencing or

in a motion to reconsider and modify the sentence; (3) complying with

Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth

“a concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence[;]” and (4) presenting a

substantial question that the sentence appealed from is not appropriate under

the Sentencing Code, 42 Pa.C.S. § 9781(b). Id. (citation omitted).

“[A] written post-sentence motion shall be filed no later than 10 days

after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). “Objections to the

discretionary aspects of a sentence are generally waived if they are not raised

at the sentencing hearing or in a motion to modify the sentence imposed.”

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013).

In the instant case, Appellant did not properly preserve this issue

challenging the discretionary aspects of her sentence: she failed to raise an

objection to her sentence at the VOP sentencing hearing, and she did not file

a timely post-sentence motion or motion to reconsider her sentence

presenting this issue to the VOP court. See N.T., 11/22/16, at 3-8. Thus,

Appellant waived her challenge to the discretionary aspects of her sentence.

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See Leatherby, supra; Griffin, supra.6 Accordingly, we agree with counsel

that this sentencing claim presented in the Anders Brief is wholly frivolous.7

After conducting a full examination of all the proceedings as required

pursuant to Anders, we discern no non-frivolous issues to be raised on

appeal. We therefore grant counsel’s Petition to Withdraw and affirm the

November 22, 2016 Judgment of Sentence.

Judgment of Sentence affirmed. Petition to Withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/18

6 Even assuming Appellant had preserved her claim, Appellant’s bald claim

that the VOP court imposed a “harsh and excessive” sentence, Anders Brief

at 1, does not present a “substantial question” for review. See

Commonwealth v. Titus, 816 A.2d 251, 255-56 (Pa. Super. 2003)

(concluding defendant did not present a substantial question for review where

claim was “a bald allegation of excessiveness and [did] not raise any challenge

in the claim itself or in the brief as to a violation of the Sentencing Code or a

particular fundamental norm underlying the sentencing process[.]”).

7 Appellant’s counsel included a Statement of Reasons Relied Upon for

Allowance of Appeal pursuant to Pa.R.A.P. 2119(f) in the Anders Brief, but

stated that he could “not in good faith suggest that the Court grant this

Petition for Allowance of Appeal[.]” Anders Brief at 5.

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