Com. v. Fitzpatrick, M.

Superior Court of Pennsylvania·Decided May 24, 2021·No. 1318 MDA 2020·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

MARGARET E. FITZPATRICK :

:

Appellant : No. 1318 MDA 2020

Appeal from the Judgment of Sentence Entered August 17, 2020 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000497-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.* MEMORANDUM BY PELLEGRINI, J.: FILED MAY 24, 2021 Margaret E. Fitzpatrick (Fitzpatrick) appeals from the judgment of sentenced imposed in the Court of Common Pleas of Cumberland County (trial court) after her plea of nolo contendere to misdemeanor Theft by Unlawful Taking, 18 Pa.C.S. § 3921(a). Fitzpatrick argues that the trial court erred in denying her motion to withdraw her plea because it was not voluntarily given and she is innocent. We affirm.

We take the following factual background and procedural history from our independent review of the record and the trial court’s December 18, 2020 opinion.

* Retired Senior Judge assigned to the Superior Court.

I.

On April 16, 2018, Detective Ray Taylor and Chief County Detective Jonathan Mays were assigned to review a case involving 82 year-old Cumberland County Manor Care resident Frances Baker (Baker) after an April 11, 2018 hearing in the Court of Common Pleas of Cumberland County regarding her need for guardianship due to her mental health and inability to care for herself without assistance. There also were questions concerning money withdrawals from Baker’s bank accounts.

On April 25, 2018, the detectives met with Mary Fox (Fox) at the Cumberland County Office of Aging who advised that she had received a report from a source that Baker might be the victim of theft. Before the court assigned guardianship, Fitzpatrick managed Baker’s affairs through a power of attorney. After conducting a review of Baker’s account, Fox noticed two large check withdrawals from Baker’s account payable to Mediation Ministries and Litigation Services (MMLS). Fitzpatrick is the sole founder of MMLS, which advertises itself as an organization providing pro bono legal services to underprivileged individuals. The first check withdrawal, dated September 29, 2017, was for $7,500, and the second, dated March 8, 2018, was for $10,000. (See Affidavit of Probable Cause, 1/15/19, at 1-2).

On September 7, 2018, when Fitzpatrick met with detectives, she claimed that the $7,500 check was for a realtor’s commission after the sale of Baker’s property that the realtor said he wanted to donate to MMLS. However,

when detectives met with the realtor, he told them he did not know anything about a donation to MMLS and, in fact, he had donated his services to Baker and did not ask for any commission from her. Fitzpatrick stated that the $10,000 check was for expenses arising from services provided by MMLS for Baker’s case, although such services were advertised as pro bono. A review of MMLS’s financial records indicated the funds donated to MMLS were solely controlled by Fitzpatrick. (See id. at 2-3).

On January 15, 2019, the Commonwealth charged Fitzpatrick with two counts each of Theft by Unlawful Taking as felonies of the first degree and Access Device Fraud as third-degree felonies. She filed a pre-trial motion to dismiss the charges that was denied.

At the August 17, 2020 Call of the List1 before President Judge Edward E. Guido (Judge Guido),2 the following conversation occurred:

THE COURT: What are the charges []?

[Senior Assistant District Attorney] MS. METZGER: Your Honor, the theft offense, she did take money from-she had a power-ofattorney and did take money from that person’s account. The

1 ‘“Call of the List’ in Cumberland County is held the morning of jury selection for cases previously called for a jury trial at a pre-trial conference. The purpose of Call of the List is to finalize any last-minute negotiations between parties, for defendants to understand any plea offers tendered, and to call cases for trial while placing on the record the expected number of days, etc.” (Commonwealth’s Brief, at 4 n.3).

2President Judge Edward E. Guido presided over the Call of the List. Judge Christylee L. Peck presided over the Guilty Plea proceedings later that day.

offer is for M-1 with an agreement of probation for 5 years with early termination once she pays off the restitution.

THE COURT: What are the guidelines?

MS. METZGER: The guidelines are … THE COURT: How much was stolen?

MS. METZGER: I’m sorry?

THE COURT: How much is alleged to have been stolen?

MS. METZGER: 17,000.00, Your Honor.

THE COURT: Ms. Fitzpatrick, you’re not going to take that for probation?

[FITZPATRICK]: I can’t hear what you’re saying. I’m sorry, Your Honor.

THE COURT: The offer is a probationary sentence. You want a trial on this?

[FITZPATRICK]: I’m not sure I understand, sir.

THE COURT: If you go to trial and you’re convicted Ms. Fitzpatrickit won’t be my case, because I’ll be recused-but it is almost certain you will end up in jail. They are making an offer to give you probation.

[FITZPATRICK]: Oh, okay.

THE COURT: With the opportunity to pay the money back within 5 years. Do you understand that?

[FITZPATRICK]: I think so.

THE COURT: All right.

MS. METZGER: RS to 9 on the Felony 3, Your Honor.

THE COURT: All right. Well, 17,500.00 almost guarantees she’s going to jail. I won’t be doing the sentencing, but-all right. Go talk to those two clients.

(N.T. Call of the List, 8/17/20, at 3-4).

Later that day, in Judge Peck’s courtroom, Fitzpatrick entered a nolo contendere plea to the charge of Theft by Unlawful Taking as a misdemeanor in the first degree in exchange for the Commonwealth withdrawing all the other felony charges. Before entering the plea, counsel assisted Fitzpatrick in answering a 16-question written colloquy. In that document, Fitzpatrick confirmed that she reads, writes and understands the English language, she understood the charges against her as stated in the Information, and that by pleading nolo contendere, she was giving up her right to a trial and had limited appellate rights. She also affirmed that no threats or promises had been made to persuade her to enter the plea and that the decision to plead nolo contendere was hers alone. (See Written Nolo Contendere Colloquy Form, 8/17/20, at 2-3).

At the plea hearing, counsel advised the court that Fitzpatrick “feels that in her scope of her power of attorney she was acting appropriately, but she understands the evidence against her.” (N.T. Plea Hearing, 8/17/20, at 2). She told the court that Fitzpatrick had “done a lot of charitable work in the community throughout the course of her career” and is “dealing with a lot of health issues. She doesn’t want to take this to trial and risk having a felony

and more serious consequences today. So she would like to pay back the restitution as she’s able and take responsibility for this.” (Id. at 3-4).

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