J-S28015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIELLE NICOLE KLINE : : Appellant : No. 258 WDA 2023
Appeal from the Judgment of Sentence Entered January 5, 2023 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000279-2022
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: February 15, 2024
Danielle Nicole Kline brings this appeal from the judgment of sentence
entered following her guilty plea to attempted homicide and robbery. This case
returns to us after remand to the trial court for the filing of a supplemental
Pa.R.A.P. 1925(b) statement and the issuance of an opinion pursuant to
Pa.R.A.P. 1925(a). The parties also were directed to file new appellate briefs.
The matter is now ripe for our disposition, and following our review of the
updated record, we vacate the judgment of sentence and remand for further
proceedings.
In our initial memorandum remanding this case to the trial court, we
summarized the pertinent procedural history as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S28015-23
On November 2, 2022, Kline entered a negotiated guilty plea to attempted homicide and robbery wherein the parties agreed to a sentence of 72 to 154 months in prison on the attempted homicide charge and a concurrent term of 60 to 120 months on the robbery charge. The trial court accepted the entry of the plea and scheduled sentencing for January 5, 2023. Prior to sentencing, upon an oral motion by the Commonwealth, the trial court amended the attempted homicide count in the criminal information to attempted murder – murder of the second degree. Subsequently, on January 5, 2023, the trial court sentenced Kline in accordance with the plea agreement. Relevant herein, the sentencing order states that Kline was sentenced for “Criminal Attempt/Homicide (F1)” and there is no mention of the amended count of attempted second-degree murder. Nevertheless, the criminal docket states that Kline pleaded guilty and was sentenced for “Criminal Attempt – Murder of the Second Degree.” Likewise, the court commitment document stated that Kline was sentenced on the offense of “Criminal Attempt – Murder Of The Second Degree.”
Commonwealth v. Kline, 258 WDA 2023, 2023 WL 6784389, at *2 (Pa.
Super. filed October 13, 2023) (Non-Precedential Decision). This timely appeal
followed, and the trial court appointed appellate counsel, who then filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and a petition to
withdraw as counsel.
We initially determined that, although appellate counsel satisfied the
technical requirements for withdrawing from representation, our independent
review of the record led to the conclusion that Kline’s appeal is not wholly
frivolous. Specifically, we observed there is arguably a non-frivolous issue as
to the legality of Kline’s sentence because, “although Kline pleaded guilty to
attempted homicide, the trial court amended the criminal information prior to
sentencing to reflect that the attempted homicide charge was an attempted
-2- J-S28015-23
second-degree murder charge.” Kline, 258 WDA 2023, 2023 WL 6784389, at
*5. It is undisputed that “[t]here simply is no such crime as attempted second
… degree murder” in Pennsylvania. Commonwealth v. Williams, 730 A.2d
507, 511 (Pa. Super. 1999).
Upon further review of the record, this panel observed that it was
unclear whether the sentence imposed was for a conviction of attempted
homicide or for an attempted-second degree murder conviction. We then
concluded that “since the record is at least ambiguous as to the nature of the
sentence, there is an arguably meritorious legality of sentence claim capable
of being addressed on appeal.” Kline, 258 WDA 2023, 2023 WL 6784389, at
*6. We therefore remanded the case to the trial court for the filing of a
supplemental Pa.R.A.P. 1925(b) statement by Kline, the issuance of an
opinion pursuant to Pa.R.A.P. 1925(a), and the filing of new appellate briefs
by the parties.
On remand, Kline’s appellate counsel filed a Pa.R.A.P. 1925(b)
statement on October 23, 2023. The trial court filed its Pa.R.A.P. 1925(a)
decision on October 25, 2023. Both parties have filed briefs with this Court.
The single issue raised by Kline is whether her aggregate sentence
should be vacated because one of her “convictions is [for] attempted second-
degree murder which is a crime that does not exist and to which Ms. Kline
could not have been sentenced.” Appellant’s Brief, at 8. She argues that,
although she entered a guilty plea to attempted homicide, the information was
-3- J-S28015-23
amended prior to sentencing and she was sentenced for criminal
attempt/second-degree murder, which is a non-existent crime. As such, Kline
posits that she cannot be charged with or sentenced to attempted second-
degree murder, and her sentence should be vacated and remanded for further
We begin by observing that, generally, upon entry of a guilty plea, an
appellant waives all defects and defenses except: (1) the lack of jurisdiction;
(2) the validity of the plea; and (3) the legality of the sentence. See
Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). A challenge to the
legality of sentence is an attack upon the power of a court to impose a given
sentence. See Commonwealth v. Lipinski, 841 A.2d 537, 539 (Pa. Super.
2004). As our Supreme Court has stated, “a trial court is not empowered
under our Commonwealth’s Sentencing Code to sentence an individual for a
non-existent criminal offense.” Commonwealth v. McIntyre, 232 A.3d 609,
616 (Pa. 2020). Issues relating to the legality of a sentence are reviewed de
novo, and our scope of review is plenary. See Commonwealth v. Infante,
63 A.3d 358, 363 (Pa. Super. 2013).
On remand, the trial court authored a Pa.R.A.P. 1925(a) opinion that
offered the following astute analysis:
This [c]ourt, after reviewing the relevant case law, agrees with the Superior Court that a defendant cannot be charged, convicted or sentenced to attempted second-degree murder. Therefore, [Kline’s] conviction and sentence should be vacated and remanded for further proceedings.
-4- J-S28015-23
Trial Court Opinion, 10/25/23, at 1.
Likewise, the Commonwealth has conceded that Kline’s sentence should
be vacated, and the case remanded for resentencing. See Appellee’s Brief at
2-3. To its credit, the Commonwealth states that it “acknowledges that its
Amended Information does not comport with Pennsylvania case law. The
Commonwealth further acknowledges that [Kline’s] sentence is illegal because
she was sentenced on a crime that does not exist in Pennsylvania.” Id. at 2.
Upon further review of the record now before us,1 we agree with the
parties and the trial court that a sentence has been imposed on Kline for a
nonexistent crime. It is undisputed that on November 2, 2022, Kline entered
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J-S28015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIELLE NICOLE KLINE : : Appellant : No. 258 WDA 2023
Appeal from the Judgment of Sentence Entered January 5, 2023 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000279-2022
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: February 15, 2024
Danielle Nicole Kline brings this appeal from the judgment of sentence
entered following her guilty plea to attempted homicide and robbery. This case
returns to us after remand to the trial court for the filing of a supplemental
Pa.R.A.P. 1925(b) statement and the issuance of an opinion pursuant to
Pa.R.A.P. 1925(a). The parties also were directed to file new appellate briefs.
The matter is now ripe for our disposition, and following our review of the
updated record, we vacate the judgment of sentence and remand for further
proceedings.
In our initial memorandum remanding this case to the trial court, we
summarized the pertinent procedural history as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S28015-23
On November 2, 2022, Kline entered a negotiated guilty plea to attempted homicide and robbery wherein the parties agreed to a sentence of 72 to 154 months in prison on the attempted homicide charge and a concurrent term of 60 to 120 months on the robbery charge. The trial court accepted the entry of the plea and scheduled sentencing for January 5, 2023. Prior to sentencing, upon an oral motion by the Commonwealth, the trial court amended the attempted homicide count in the criminal information to attempted murder – murder of the second degree. Subsequently, on January 5, 2023, the trial court sentenced Kline in accordance with the plea agreement. Relevant herein, the sentencing order states that Kline was sentenced for “Criminal Attempt/Homicide (F1)” and there is no mention of the amended count of attempted second-degree murder. Nevertheless, the criminal docket states that Kline pleaded guilty and was sentenced for “Criminal Attempt – Murder of the Second Degree.” Likewise, the court commitment document stated that Kline was sentenced on the offense of “Criminal Attempt – Murder Of The Second Degree.”
Commonwealth v. Kline, 258 WDA 2023, 2023 WL 6784389, at *2 (Pa.
Super. filed October 13, 2023) (Non-Precedential Decision). This timely appeal
followed, and the trial court appointed appellate counsel, who then filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and a petition to
withdraw as counsel.
We initially determined that, although appellate counsel satisfied the
technical requirements for withdrawing from representation, our independent
review of the record led to the conclusion that Kline’s appeal is not wholly
frivolous. Specifically, we observed there is arguably a non-frivolous issue as
to the legality of Kline’s sentence because, “although Kline pleaded guilty to
attempted homicide, the trial court amended the criminal information prior to
sentencing to reflect that the attempted homicide charge was an attempted
-2- J-S28015-23
second-degree murder charge.” Kline, 258 WDA 2023, 2023 WL 6784389, at
*5. It is undisputed that “[t]here simply is no such crime as attempted second
… degree murder” in Pennsylvania. Commonwealth v. Williams, 730 A.2d
507, 511 (Pa. Super. 1999).
Upon further review of the record, this panel observed that it was
unclear whether the sentence imposed was for a conviction of attempted
homicide or for an attempted-second degree murder conviction. We then
concluded that “since the record is at least ambiguous as to the nature of the
sentence, there is an arguably meritorious legality of sentence claim capable
of being addressed on appeal.” Kline, 258 WDA 2023, 2023 WL 6784389, at
*6. We therefore remanded the case to the trial court for the filing of a
supplemental Pa.R.A.P. 1925(b) statement by Kline, the issuance of an
opinion pursuant to Pa.R.A.P. 1925(a), and the filing of new appellate briefs
by the parties.
On remand, Kline’s appellate counsel filed a Pa.R.A.P. 1925(b)
statement on October 23, 2023. The trial court filed its Pa.R.A.P. 1925(a)
decision on October 25, 2023. Both parties have filed briefs with this Court.
The single issue raised by Kline is whether her aggregate sentence
should be vacated because one of her “convictions is [for] attempted second-
degree murder which is a crime that does not exist and to which Ms. Kline
could not have been sentenced.” Appellant’s Brief, at 8. She argues that,
although she entered a guilty plea to attempted homicide, the information was
-3- J-S28015-23
amended prior to sentencing and she was sentenced for criminal
attempt/second-degree murder, which is a non-existent crime. As such, Kline
posits that she cannot be charged with or sentenced to attempted second-
degree murder, and her sentence should be vacated and remanded for further
We begin by observing that, generally, upon entry of a guilty plea, an
appellant waives all defects and defenses except: (1) the lack of jurisdiction;
(2) the validity of the plea; and (3) the legality of the sentence. See
Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). A challenge to the
legality of sentence is an attack upon the power of a court to impose a given
sentence. See Commonwealth v. Lipinski, 841 A.2d 537, 539 (Pa. Super.
2004). As our Supreme Court has stated, “a trial court is not empowered
under our Commonwealth’s Sentencing Code to sentence an individual for a
non-existent criminal offense.” Commonwealth v. McIntyre, 232 A.3d 609,
616 (Pa. 2020). Issues relating to the legality of a sentence are reviewed de
novo, and our scope of review is plenary. See Commonwealth v. Infante,
63 A.3d 358, 363 (Pa. Super. 2013).
On remand, the trial court authored a Pa.R.A.P. 1925(a) opinion that
offered the following astute analysis:
This [c]ourt, after reviewing the relevant case law, agrees with the Superior Court that a defendant cannot be charged, convicted or sentenced to attempted second-degree murder. Therefore, [Kline’s] conviction and sentence should be vacated and remanded for further proceedings.
-4- J-S28015-23
Trial Court Opinion, 10/25/23, at 1.
Likewise, the Commonwealth has conceded that Kline’s sentence should
be vacated, and the case remanded for resentencing. See Appellee’s Brief at
2-3. To its credit, the Commonwealth states that it “acknowledges that its
Amended Information does not comport with Pennsylvania case law. The
Commonwealth further acknowledges that [Kline’s] sentence is illegal because
she was sentenced on a crime that does not exist in Pennsylvania.” Id. at 2.
Upon further review of the record now before us,1 we agree with the
parties and the trial court that a sentence has been imposed on Kline for a
nonexistent crime. It is undisputed that on November 2, 2022, Kline entered
a negotiated guilty plea that included, at count 1, attempted homicide with an
agreed upon sentence of 72 to 154 months in prison. However, prior to
sentencing on January 5, 2023, upon an oral motion by the Commonwealth,
the trial court amended the attempted homicide count in the criminal
information to attempted murder – murder of the second degree. See N.T.,
1/5/23 (Sentencing), at 3. Defense counsel stipulated to the amended
information. See id. at 5.
Although the sentencing order states that Kline was sentenced at count
1 for “Criminal Attempt/Homicide (F1)”, the certified record includes an order
1The certified record transmitted to this Court following remand includes a supplemental record containing, among other things, the official transcripts of Kline’s guilty plea on November 2, 2022, and her sentencing hearing on January 5, 2023.
-5- J-S28015-23
from the trial court memorializing the amendment at count 1 of Kline’s
information from “attempted murder” to “attempted murder of the second
degree.” See Order, 1/5/23, at 1. In addition, the criminal docket indicates
Kline was sentenced for “Criminal Attempt – Murder of the Second Degree,”
and the court commitment document stated Kline was sentenced on the
offense of “Criminal Attempt – Murder Of The Second Degree.”
We are satisfied that the record supports our observations as outlined
above. Accordingly, we agree with the trial court that the judgment of
sentence must be vacated, and the case remanded for further proceedings.2
Judgment of sentence vacated. Case remanded for further proceedings
as herein stated. Jurisdiction relinquished.
DATE: 02/15/2024
2 We acknowledge in her pro se notice of appeal, Kline argued that she “was
misrepresented and mislead” by her plea counsel and improperly induced into entering her guilty plea. Pro Se Notice of Appeal, 1/19/23, at 1. However, claims of ineffective assistance are more appropriately presented on collateral review pursuant to a timely filed petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (reaffirming the general rule that “claims of ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon direct appeal”).
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