J-S31009-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DENNIS GERARD KOWALSKI : : Appellant : No. 257 EDA 2025
Appeal from the Judgment of Sentence Entered December 11, 2024 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000617-2024
BEFORE: PANELLA, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.E.: FILED OCTOBER 15, 2025
Dennis Gerard Kowalski appeals from the judgment of sentence entered
in the Monroe County Court of Common Pleas on December 11, 2024,
following his guilty plea to homicide by vehicle and driving under the influence
(“DUI”), General Impairment. Additionally, Kowalski’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.
On April 8, 2024, Kowalski was charged by criminal information with the
following charges:
Count 1: Homicide by Vehicle While DUI, 75 Pa.C.S.A. § 3735(A)(1)(i), a felony of the second degree Count 2: Aggravated Assault By Vehicle While DUI, 75 Pa.C.S.A. § 3735.1(A), a felony of the second degree Count 3: Homicide By Vehicle, 75 Pa.C.S.A. § 3732(A), a felony of the third degree J-S31009-25
Count 4: Aggravated assault by vehicle, 75 Pa.C.S.A. § 3732.1(A), a felony of the third degree Count 5: Aggravated Assault – Attempts to cause SBI or causes injury with extreme indifference, 18 Pa.C.S.A. §2702(A)(1), a felony of the first degree Count 6: Involuntary Manslaughter, 18 Pa.C.S.A. § 2504(A), a first- degree misdemeanor Count 7: Simple Assault, 18 Pa.C.S.A. § 2701(A)(2), a second- degree misdemeanor Count 8: DUI Controlled Substance – Metabolite – 4 th and Subsequent Offense, 75 Pa.C.S.A. § 3802(D)(1)(iii), a felony of the third degree Count 9: DUI Controlled Substance – Impaired Ability – 4 th and Subsequent Offense, 75 Pa.C.S.A. § 3802(D)(2), a felony of the third degree Count 10: DUI Controlled Substance – Schedule 2 or 3 – 4 th and Subsequent Offense, 75 Pa.C.S.A. § 3802(D)(1)(ii), a felony of the third degree Count 11: Failure to Carry Registration, 75 Pa.C.S.A. § 1311(b) Count 12: Operating Vehicle without Required Financial Responsibility, 75 Pa.C.S.A. § 1786(f) Count 13: Disregard Traffic Lane, 75 Pa.C.S.A. § 3309(1) Count 14: Carless Driving – Unintentional Death, 75 Pa.C.S.A. § 3714(b) Count 15: Reckless Driving, 75 Pa.C.S.A. § 3736(a) Count 16: Failure to Carry License, 75 Pa.C.S.A. § 1511(a)
The charges stemmed from an accident that occurred in September 2021,
wherein Kowalski was arrested after he operated a motor vehicle while
impaired and thereby caused the death of the victim, Vienna Valella, the
passenger in his vehicle.
On September 13, 2024, the Commonwealth amended the information
to remove the DUI charges (Counts 8 through 10) and violations of the vehicle
code (Counts 11 through 16), and added a new Count 8 – DUI: General
Impairment / Incapable of Driving Safely – 4th Offense & Subsequent Offense,
75 Pa.C.S.A. § 3802(A)(1), a felony of the third degree. On the same date,
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Kowalski entered a guilty plea to Amended Count 8: DUI, General Impairment
(4th Offense) and Count 3: Homicide by Vehicle. Kowalski affirmed these
charges stemmed from him operating a motor vehicle while impaired to such
an extent that he was incapable of safe driving, it was his fourth or subsequent
DUI within the last 10 years, and he recklessly or with gross negligence,
caused the death of the victim. See N.T., Guilty Plea, 9/13/24, at 6-7.
On December 11, 2024, the trial court sentenced Kowalski to 12 to 60
months’ incarceration for the homicide by vehicle charge, and a consecutive
12 to 60 months’ incarceration for the DUI charge, for an aggregate term of
24 to 120 months’ incarceration. The trial court noted at the sentencing
hearing, and in the sentencing order, that Kowalski is ineligible for the
Recidivism Risk Reduction Incentive (“RRRI”) program and the Motivation
Bootcamp program. The court further noted that the Commonwealth objected
to Kowalski’s participation in the State Drug Treatment Program (“SDTP”).
On December 19, 2024, Kowalski filed a motion for modification of
sentence, which the court denied. Kowalski subsequently filed a pro se notice
of appeal, along with a 1925(b) concise statement in which he raised one issue
challenging the court’s denial of his post-sentence motion, specifically
contending the court should have imposed the SDTP. On February 19, 2025,
Kowalski filed another pro se 1925(b) concise statement, raising essentially
the same issue but adding, for the first time, that the court erred in failing to
impose the sentence he was advised he would receive by plea counsel. After
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a hearing, the court granted Kowalski’s request to proceed in forma pauperis
and appointed counsel to represent Kowalski for appeal purposes. After
receiving an extension of time to file a brief, counsel filed a motion to withdraw
as counsel, along with an Anders brief.
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
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.
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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) (citation omitted).
We find counsel has substantially complied with the preliminary
requirements set forth in Anders. Counsel filed a petition to withdraw,
certifying he has reviewed the case and determined that Kowalski’s appeal is
frivolous. Counsel also filed a brief, which includes a summary of the history
and facts of the case, potential issues that could be raised by Kowalski, and
his assessment of why those issues are meritless, with citations to relevant
legal authority. While counsel indicates in his petition to withdraw that he sent
a letter to Kowalski advising him of his rights, no such attachment appears
along with the petition to withdraw in the record. However, counsel did attach
a copy of the letter to his Anders brief, filed on the same date. The letter
informs Kowalski that counsel reviewed the record, found the appeal wholly
frivolous, and advised Kowalski that he has the right to retain new counsel in
pursuit of his appeal or proceed pro se and that he has the right to submit any
additional issues he believes are meritorious.
Counsel has therefore complied with the requirements of Anders.
Kowalski has not filed a response. As such, we proceed to a review of the
issues outlined in the Anders brief.
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The Anders brief presents a potential challenge to the sentence
imposed as follows:
Whether the guilty plea/sentencing court abused its discretion in denying the Appellant’s motion to modify sentence, and failing to impose the sentence Appellant was advised that he would receive by counsel and not imposing a state drug treatment program sentence pursuant to Pa.R.Crim.P. 720(B)(1)(a)(v)?
Anders Brief, at 4. While counsel presents one issue statement, he divides his
argument into three distinct sections: (1) State Drug Treatment Program, (2)
Plea Agreement Enforcement, and (3) Sentencing Abuse of Discretion.
First, regarding the procedure for SDTP selection, 61 Pa.C.S.A §
4104(a)(1) states, in pertinent part:
The sentencing judge shall employ the sentencing guidelines to identify persons who are eligible for participation in the [SDTP]. The judge shall consider the position of a victim of the crime, as advised by the prosecuting attorney, on whether to exclude the person from eligibility for placement in the [SDTP]. The judge shall exclude the person from eligibility if the prosecuting attorney opposes eligibility. The judge shall note on the sentencing order if a person has been excluded from eligibility for the [SDTP]. If the person is not excluded from eligibility, the minimum sentence imposed shall operate as the minimum for parole eligibility purposes if the person is not placed in the program by the department under subsection (c) or if the person is expelled from the program under section 4105(f) (relating to [SDTP]).
Id. (emphasis added). The statute does not “[c]onfer any legal right upon any
individual ... to ... participate in a drug offender treatment program.” Id. §
4108(1)(i). Even if the court concludes a defendant is not excluded from
eligibility, ultimately, the Department of Corrections, in its discretion, decides
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whether an eligible offender will actually be admitted into the SDTP. Id. §
4104(c).
At the sentencing hearing, the Commonwealth noted its opposition to
the SDTP. See N.T., Sentencing, 12/11/24, at 10. In response to the court
asking its reasoning, the Commonwealth explained the victim’s family was not
in agreement with the program. See id. Further, the Commonwealth did not
believe Kowalski should get the benefit of the program based on the fact that
the victim’s death was not enough to change him, given his numerous arrests
after the fatal incident at issue. See id. at 10-11. The court then made clear
to Kowalski that “the option of the state drug treatment program is not on the
table. That’s the Commonwealth’s right. It’s not on the table, I respect that.”
Id. at 12; see id. at 15 (court giving its reasons for respecting the
Commonwealth’s position on the SDTP); see also id. at 18 (court ensuring
that the sentencing order includes a reference to the Commonwealth’s
objection to participation in the SDTP).
Based on the above, the court properly determined that Kowalski was
not statutorily eligible for participation in the SDTP based on the
Commonwealth’s opposition. The record of the sentencing hearing shows
Kowalski was clearly made aware of his ineligibility. Nevertheless, Kowalski
did not dispute the Commonwealth’s position at any point during the hearing.
Nor did he file any post-sentence motion to withdraw his plea on that basis,
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or include the failure to sentence him to the SDTP in his post-sentence motion.
Accordingly, any such challenge would be waived.
Counsel also raises a potential claim regarding enforcement of an
alleged plea agreement as to sentencing. However, we have thoroughly
reviewed the record and can find no evidence of any such plea agreement.
See Pa.R.Crim.P. 590(B)(1) (requiring both parties to state on the record in
open court the terms of any agreement reached).
Conversely, it is clear from both the written and oral plea colloquies that
Kowalski was informed he was entering an open plea. In his written plea
colloquy, Kowalski affirmed that no particular sentence was promised to him.
See Written Guilty Plea and Colloquy, 9/18/24, at ¶ 9. The only agreement
indicated was that the Commonwealth agreed to nolle prosequi all the
remaining charges. See id. at ¶ 5. Finally, Kowalski affirmed that no one was
forcing or threatening him to enter the plea, and that he was satisfied with his
counsel. See id. at ¶ 12, 14.
Similarly, during the oral plea colloquy, the court emphatically informed
Kowalski that his plea was an “open plea”, and explained that “means there
is absolutely no agreement on sentencing that is binding on [the] court.” N.T.,
Guilty Plea, 9/13/24, at 3. Kowalski affirmed his understanding. See id. The
court further clarified “if you don’t like the sentence I ultimately give you, you
will never be able to successfully appeal your sentence or complain that you
were promised a particular sentence and I didn’t give it to you. Because there
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is no promise on any particular sentence, do you understand that?” Id. at 3-
4. Kowalski again affirmed his understanding. Further, Kowalski affirmed no
one was forcing or threatening him to enter the plea, and that he was satisfied
with his counsel. See id. at 5-6. Therefore, the record reflects there was no
agreement as to sentencing and the trial court simply cannot be found to have
erred for failing to enforce a sentencing agreement that was not presented to
it.
Finally, Kowalski’s claim that the trial court erred in failing to impose the
SDTP presents a challenge to the discretionary aspects of his sentence.
However, because Kowalski pled guilty, we must examine the effect of his
guilty plea upon his discretionary sentencing claim “Generally, a plea of guilty
amounts to a waiver of all defects and defenses except those concerning the
jurisdiction of the court, the legality of the sentence, and the validity of the
guilty plea.” Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super.
1991) (citations omitted). “[T]he determination of whether discretionary
aspects of sentencing may be challenged after a guilty plea is entered depends
upon the actual terms of the plea bargain, specifically, to what degree a
sentence agreement has been reached.” Commonwealth v. Dalberto, 648
A.2d 16, 18 (Pa. Super. 1994).
Where the plea agreement provides specific penalties, an appeal from a
discretionary sentence will not stand; however, where the plea agreement
provides for no sentencing restrictions, the entry of a guilty plea will not
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preclude a challenge to the discretionary aspects of sentencing. See id. at 20.
Here, as thoroughly discussed above, Kowalski entered an open guilty plea
that did not purport to limit the sentencing court’s discretion in any way.
Therefore, he may challenge the discretionary aspects of the sentence. See
id.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Kowalski preserved a sentencing issue through filing a timely
post-sentence motion and notice of appeal. However, counsel has failed to
include a Pa.R.A.P. 2119(f) statement. “Where counsel files an Anders brief,
this Court has reviewed the matter even absent a separate Pa.R.A.P. 2119(f)
statement. Hence, we do not consider counsel’s failure to submit a Rule
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2119(f) statement as precluding review of whether [a]ppellant’s issue is
frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015)
(citations omitted).
In his post-sentence motion, Kowalski requested the trial court to
reduce his sentence. Kowalski did not request any particular sentence.
Further, Kowalski did not assert the sentence given was excessive or that the
court had failed to consider any sentencing factors. Rather, Kowalski simply
noted he had shown “more than ordinary remorse for his actions, yet under
the circumstances can not avail himself to any state treatment programs ….”
Motion for Modification of Sentence, 12/19/24, at 3. Kowalski contended the
“low range sentence for this offense is a considerable amount of time” for a
young man in a case with “no significant aggravating factors.” Id. at 3-4. We
cannot say these claims raise a substantial question.
It is well-established “that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation omitted). A claim that the court “refused to weigh” mitigating factors as an appellant “wished, absent more, does not raise a substantial question.” Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010); see also Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).
Commonwealth v. Rang, 298 MDA 2023, at *3 (Pa. Super. filed February
5, 2024) (unpublished memorandum).1
____________________________________________
1 Pursuant to Pa.R.A.P. 126(b), we may rely on unpublished memorandum issued after May 1, 2019, for their persuasive value.
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Even if Kowalski’s claim had raised a substantial question, we would find
the issue is not meritorious. Kowalski’s sentence is not clearly unreasonable.
After hearing from Kowalski, his counsel, the Commonwealth, the victim’s
mother, and the victim’s son, the court sentenced Kowalski within the
standard sentencing range.
Moreover, the court explained its reasons for its sentence on the record,
as follows:
To address the victim’s mother, you are correct, this event happened in September of ‘21, and I’m assuming that there were accident reconstruction and toxicology, which can take months and months and months. And so while that was happening, [Kowalski] did pick up several new offenses. But let me say this to you, while that is disheartening and it’s frustrating and it can be angering, they are, in my estimation, all drug-related or drug- driven. And so, I agree with the victim’s mom, you would have wished at the sight of seeing his loved one -- and I don’t doubt that he loved the decedent. I think they were both addicts, that crosses all bounds. But I think that speaks to one of two things: either, there was no wakeup call, and I can’t imagine how that happened or didn’t happen, I should say; but I think it also speaks to the strength of an addiction, and how tough addiction is. It’s a very complex disease.
And Mr. Kowalski, I say this, and I say this to the decedent’s family, there is no shame in addiction, zero. But everybody gets a different hand of cards in life dealt to them, and so you get this terrible addiction card in your hand. But it is still up to you how you play it. You do not have to live in the addiction, and I hope, for you, so that you can honor the decedent, and again, give her family some hope that some ray of light comes from this awful loss that they’re experiencing, that you get yourself clean, stay clean.
Never forget that you have to keep your sobriety first and foremost, that is the one thing you need to take care of from the second your eyes open in the morning to the second you go to bed at night. That’s got to be your first priority. Because you are
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no good to anyone, and you’re nothing but a negative power on the community in which you’re residing if you don’t. It is that serious. Somebody died at your hands, they did. And she may have known that you were under the influence when she got in the car, but she’s an addict, too. And she’s someone you professed to have loved, and I don’t doubt that you did. But then you protect the people you love; you take a bullet for them. And I always say this, you can be an addict in relapse or in active addiction, but you don’t ever have to put the keys in the car. There’s a thing called Uber.
…
So I think, given the -- so again, one of two things: either, there’s something within Mr. Kowalski that I can’t begin to understand, that this would not have been the wakeup call, as the victim’s mother said; or it speaks to the strength of his addiction. One of those two things, I have no way of knowing how he could let himself commit further crimes after the fact. Particularly, a DUI. So I respect the Commonwealth’s position on the state drug treatment program for those reasons.
I’m not going to make him boot camp eligible. I don’t think anything that shortens his sentence would be appropriate. I’ll put him at the top end of the standard range; I’m not going to aggravate it, although I do note the aggravating factors. And the only reason being, that since he’s been incarcerated, he’s, at a minimum, at least saying the right things and doing the right things. Undoubtedly, it is a dollar short and day late.
But I think the more important thing is to make sure that there is a lengthy tail to this sentence, so that this never happens again. And if there does, then, your client[] gets warehoused, basically, to protect the community around him.
N.T., Sentencing, 12/11/24, at 8-10.
Further, the trial court reviewed a presentence investigation report
(“PSI”). Where the trial court had the benefit of reviewing a PSI, we must
presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A
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pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted).
Based on the above, Kowalski’s challenge to the discretionary aspects
of his sentence is meritless.
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. As such, we affirm the judgment of
sentence and grant counsel leave to withdraw.
Judgment of sentence affirmed. Petition for leave to withdraw granted.
Date: 10/15/2025
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