Com. v. Hicks, C.

• Court: Superior Court of Pennsylvania
• Decided: April 28, 2023
• Docket: 1095 MDA 2022
• Status: Unpublished

Opinion

J-S02008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER SCOTT HICKS : : Appellant : No. 1095 MDA 2022

Appeal from the Judgment of Sentence Entered July 5, 2022 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000831-2022

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 28, 2023

Christopher Scott Hicks appeals from the judgment of sentence entered

in the York County Court of Common Pleas on July 5, 2022, following his

conviction for possessing a small amount of marijuana. Additionally, Hicks’s

court-appointed counsel seeks to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967). After careful review, we affirm the judgment of sentence

and grant counsel permission to withdraw.

The Commonwealth charged Hicks with possession of a small amount of

marijuana - personal use, possession of drug paraphernalia, and driving while

operating privilege is suspended. Prior to trial, the Commonwealth withdrew

the paraphernalia charge.

On July 5, 2022, the case proceeded to a bench trial on the remaining

charges. Officer Corey Sheaffer testified that on December 4, 2021, he was J-S02008-23

on duty monitoring traffic when he stopped Hicks’s Jeep for driving with a

suspended license after running the vehicle’s plates. See N.T., Non-Jury Trial,

7/5/22, at 4-6. During the stop, Officer Sheaffer noticed an odor of marijuana

coming from the Jeep as well as from Hicks’s person. See id. at 14. Upon

questioning, Hicks admitted there was “a little bit” of marijuana in the Jeep

and on his person. See id. at 14-15. Marijuana was recovered from Hicks’s

pants pocket as well as from the Jeep. See id. at 15-18.

Officer Sheaffer stated that Hicks mentioned “being out in nature”, see

id. at 21, but did not recall Hicks saying anything about consuming marijuana

for religious purposes. See id. at 18-19. Further, while Hicks admitted he did

not have a medical marijuana card, he said he had tried to get one but did not

have it yet. See id. at 14, 21, 27.

After hearing from both sides, the court excluded Hicks’s driving record

because it was not previously disclosed to the defense. See id. at 12.

Accordingly, the court granted the defense’s motion for acquittal on the driving

under suspension charge. See id. at 24.

Hicks testified on his own behalf and admitted the marijuana that was

recovered was his. See id. at 25. He stated that he used marijuana in his

witchcraft practice as well as for a natural healing remedy for aches and pains

associated with a bone disease. See id. at 26. Hicks said he told Officer

Sheaffer that he used marijuana “for both meditation and healing.” See id. at

27. Hicks admitted he did not have a medical degree and was not licensed to

-2- J-S02008-23

be a “healer.” See id. at 29. He further admitted he did not have a medical

marijuana card at the time of the traffic stop, but said he received it “eight

days after this incident happened.” See id. at 27.

Counsel noted Hicks admitted to possessing marijuana but argued “the

marijuana is essential to his religious practice as being a practicing witch and

for medical purposes … While he possessed it, he did so based on his religious

beliefs.” See id. at 30. Counsel offered to provide some recognized books

regarding Hicks’s practice, but admitted that there was no case law, in her

knowledge, recognizing his particular practice as a religion within a

constitutional parameter. See id.

The court found Hicks guilty of possession of a small amount of

marijuana - personal use, and imposed a $50 fine and costs. This timely

appeal followed.

We turn first to counsel’s petition to withdraw. To withdraw pursuant to

Anders, counsel must:

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 [Anders] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). With respect to the third requirement of Anders,

that counsel inform the appellant of his or her rights in light of counsel’s

-3- J-S02008-23

withdrawal, this Court has held that counsel must “attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

An Anders brief must comply with the following requirements:

(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). “[I]f counsel’s

petition and brief satisfy Anders, we will then undertake our own review of

the appeal to determine if it is wholly frivolous.” Commonwealth v. Wrecks,

931 A.2d 717, 721 (Pa. Super. 2007) (brackets added, citation omitted).

We find counsel has complied with the preliminary requirements set

forth in Anders. Counsel filed a petition to withdraw, certifying he has

reviewed the case and determined that Hicks’s appeal is frivolous. 1 Further,

counsel attached to his petition copies of two letters he sent to Hicks advising

him of his rights, including his immediate right to proceed pro se and/or right

____________________________________________

1 Counsel had attached an application to withdraw as counsel as an appendix to his Anders brief. However, upon initial review of the docket, this Court was unable to find a separate filing for an application to withdraw. As such, there was no docketed application for this Court to rule on. Accordingly, counsel was directed to file the application to withdraw with this Court. Counsel complied and filed an application to withdraw on March 28, 2023.

-4- J-S02008-23

to hire private counsel. Counsel also filed a brief, which includes a summary

of the history and facts of the case, potential issues that could be raised by

Hicks, and his assessment of why those issues are meritless, with citations to

relevant legal authority. Counsel has thus complied with the requirements of

Anders. Hicks did not file a response. As such, we proceed to a review of any

issues outlined in the Anders brief.

In his Anders brief, counsel raises a potential issue regarding violation

of Hicks’s right to free exercise of religion under both federal and Pennsylvania

law. See Anders Brief, at 4. Counsel notes that Hicks asserted that he

possessed the marijuana for religious purposes. See id. at 14. Specifically,

Hicks argued he is a witch and uses the marijuana for meditation and healing

in the course of practicing his religion. See id.

Both the Pennsylvania and United States Constitutions guarantee the

free exercise of religion. See Application of Conversion Ctr., Inc., 130 A.2d

107, 110 (Pa. 1957). As the Pennsylvania Constitution does not give broader

protection to this right, we may follow federal precedent in considering a free

exercise of religion claim under both the Pennsylvania and United States

Constitutions. See Kaur v. Singh, 259 A.3d 505, 509 (Pa. Super. 2021)

(citation omitted).

The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.... ” The free exercise of religion means, first and foremost, the right to believe and profess whatever religious

-5- J-S02008-23

doctrine one desires. Thus, the First Amendment obviously excludes all “governmental regulation of religious beliefs as such.” The government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma.

Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 876-77

(1990) (citations omitted). 2 However, “exercise of religion often involves not

only belief and profession but the performance of (or abstention from) physical

acts”. Id. at 877 (internal quotation marks omitted). The right to engage in

actions or conduct prompted by religious beliefs or principles is not totally free

of legislative restrictions. See id. at 877-79.

Hicks was charged and convicted pursuant to 35 P.S. 780-112(a)(31)(i),

which criminalizes the possession of a small amount of marijuana. Hicks does

not challenge that he possessed a small amount of marijuana. Rather, Hicks

argues he should be exempt from the regulation because he contends he uses

marijuana for religious purposes.

2 The United States Congress responded to Smith by enacting the Religious Freedom Restoration Act of 1993 (“RFRA”), to provide greater statutory protection for the exercise of religion. See Holt v. Hobbs, 574 U.S. 352, 357 (2015). However, the Supreme Court of the United States held that RFRA’s attempt to regulate states and their subdivisions was unconstitutional. See id. And Congress’s subsequent legislation to provide greater statutory protections for religious exercise against state regulation is focused on land use and institutionalized persons. See Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq. As a result, Smith still controls the analysis of Hicks’s claim here.

-6- J-S02008-23

Even if we assume, for argument’s sake, that Hicks’s beliefs are sincere

and that his practice is a covered religion for constitutional purposes, we find

Hicks is due no relief. See Wisconsin v. Yoder, 406 U.S. 205, 215-16, 220

(1972).

Prior to 1990, the government was required to justify the imposition of

a substantial burden on a religious practice with a compelling state interest.

See id. at 214. However, in 1990, the United States Supreme Court retreated

from that test when it held in Smith that the First Amendment does not

prohibit governments from burdening religious practices through neutral,

generally applicable laws. Smith, at 885. The Supreme Court concluded “the

right of free exercise does not relieve an individual of the obligation to comply

with a valid and neutral law of general applicability on the ground that the law

proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

Id. at 879 (citation and internal quotation marks omitted).

The statute at issue is a facially neutral criminal law with general

applicability, prescribing the possession of a small amount of marijuana for

personal use by anyone. See 35 P.S. §780-113(a)(31)(i). Nor does the law

provide for a discretionary system of individual exemptions. See Fulton v.

City of Philadelphia, 141 S.Ct. 1868, 1878 (2021) (finding law burdening

religious exercise to not be generally applicable where it provided for “a

system of individual exemptions, made available … at the sole discretion of

the Commissioner.” (internal quotation marks omitted)). Accordingly, the Free

-7- J-S02008-23

Exercise Clause of the First Amendment, and its counterpart under

Pennsylvania law, does not afford Hicks an exemption from this law, even if

we assume it has the incidental effect of burdening his religious practice. 3

Having reviewed the issues raised in counsel’s Anders brief, and after

conducting our own independent review of the record, we agree with counsel

that the within appeal is wholly frivolous.4 As such, we affirm the judgment of

sentence and grant counsel leave to withdraw.

Judgment of sentence affirmed. Petition for leave to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/28/2023

3 Notably, along with arguing that he used the marijuana for religious purposes, Hicks additionally admitted that he used marijuana for medical and healing purposes. Hicks has provided no support for why this additional purpose would be exempt from coverage under 35 P.S. §780-113(a)(31)(i) and we know of none. It is clear Hicks was aware this purpose is not exempt on its own, as he had already applied for, but not yet received, a medical marijuana card for that exact purpose. Due to our disposition, we need not address this issue further.

4We note our independent review of the record did not reveal any additional non-frivolous issues for appeal.

-8-