Com. v. Passmore, R.

• Court: Superior Court of Pennsylvania
• Decided: June 24, 2022
• Docket: 895 WDA 2021
• Status: Unpublished

Opinion

J-A08042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT WAYNE PASSMORE JR. : : Appellant : No. 895 WDA 2021

Appeal from the Judgment of Sentence Entered June 14, 2021 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000698-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT W. PASSMORE, JR. : : Appellant : No. 896 WDA 2021

Appeal from the Judgment of Sentence Entered June 14, 2021 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000867-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT W. PASSMORE, JR. : : Appellant : No. 897 WDA 2021

Appeal from the Judgment of Sentence Entered June 14, 2021 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0001378-2020 J-A08042-22

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: June 24, 2022

Consistent with this panel’s prior memorandum of April 5, 2022, Jendi

Schwab, Esquire (Counsel), counsel for Robert Wayne Passmore, Jr.

(Appellant), has filed an amended Anders brief and petition to withdraw from

representation.1 We now address the merits of Appellant’s appeal from the

judgments of sentence entered across three trial dockets in the Clearfield

County Court of Common Pleas, following his guilty pleas to terroristic threats,

criminal trespass,2 and related offenses. We affirm the judgments of sentence

and grant Counsel’s petition to withdraw.

I. Procedural History

Preliminarily, we note the trial court did not issue any Pa.R.A.P. 1925(a)

opinion in this matter.3 Appellant was charged across three dockets for

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1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). The Commonwealth has not filed an appellee’s brief.

2 18 Pa.C.S. §§ 2706(a)(1), (3), 3503(a)(1)(i).

3 Pa.R.A.P. 1925(a)(1) provides:

[I]f the reasons for the order do not already appear of record, [the trial court] shall . . . file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.

(Footnote Continued Next Page)

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separate incidents spanning a four-month period. On June 14, 2021,

Appellant appeared with present counsel, an assistant Public Defender, for a

combined negotiated plea and sentencing hearing. The parties agreed to a

recommended aggregate minimum sentence of 16 months’ incarceration, with

the trial court to determine the maximum sentence. N.T. Sentencing,

6/14/21, at 3. Counsel argued for a maximum sentence of three or four years.

Id. at 8. Meanwhile, the county probation office’s pre-sentencing

investigation report (PSI) recommended a maximum sentence of five years.

See id. at 8; Anders Brief at 11. We now review the facts at each docket in

detail.

At CP-17-CR-0000698-2020 (Docket 698), the Commonwealth alleged

that on July 8, 2020, Appellant: was standing on the roadway in Knox

Township, Clearfield County; appeared to be intoxicated; and pointed what

appeared to be a handgun at vehicles. Affidavit of Probable Cause, Exh. to

Criminal Complaint, Docket 698, 7/16/20. When Pennsylvania State Troopers

arrived, Appellant did not comply with their verbal commands. He also waved,

Pa.R.A.P. 1925(a)(1). See also Commonwealth v. DeJesus, 868 A.2d 379, 383 (Pa. 2005) (purpose of Pa.R.A.P. 1925(a) is to facilitate appellate review of a particular trial court order, and provide the parties and the public the legal basis for a judicial decision). However, we reiterate that in this case, Counsel responded to the trial court’s Rule 1925(b) order by filing a statement of intent to file an Anders brief.

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and then threw toward them, the object appearing to be a handgun. Id. “The

believed handgun was recovered and [found to be] a folding knife[.]” Id.

For this incident, Appellant pleaded guilty, and was sentenced, to: (1)

terroristic threats,4 a misdemeanor of the first degree (M1) — eight months

to five years’ imprisonment; (2) two counts of recklessly endangering another

person (REAP),5 misdemeanors of the second degree (M2) — two terms of

eight months to two years, to run concurrent with the first sentence; and (3)

the summary offenses of public drunkenness and obstructing highways 6 — $1

fines plus costs.

At the second docket, CP-17-CR-0000867-2020 (Docket 867), the

Commonwealth alleged that on August 12, 2020, Appellant, who was “recently

discharged” from the hospital, kicked open the door to a residence and entered

the home. Affidavit of Probable Cause, Exh. to Criminal Complaint, Docket

867, 8/21/20. He had no connection to the home or the tenant. Id. Appellant

pleaded guilty to, and received sentences of: (1) criminal trespass, a felony

of the third degree (F3) — eight months to five years’ imprisonment, to be

4 18 Pa.C.S. § 2706(a)(3).

5 18 Pa.C.S. § 2705.

6 18 Pa.C.S. §§ 5505, 5507(a).

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served consecutive to the above sentences; and (2) the summary offenses of

public drunkenness and criminal mischief7 — $1 fines plus costs.

Finally, at docket CP-17-CR-0001378-2020 (Docket 1378), the

Commonwealth alleged that while Appellant was an inmate at Clearfield

County Jail on November 3, 2020, he refused to comply with corrections

officers’ commands. Affidavit of Probable Cause, Exh. to Criminal Complaint,

Docket 1378, 12/21/20. Appellant was “yelling[,] causing a scene,” and

becoming “aggressive.” Id. An officer “deployed OC gel,” and Appellant hit

the officer in the nose with a closed fist. Id. Appellant also “made several

threats about finding [the officer] on the streets[.]” Id. Appellant pleaded

guilty to: (1) terroristic threats, an M1; and (2) simple assault,8 an M2. The

trial court imposed terms of five months to two years’ imprisonment for each

offense, to run concurrently with the above sentences.

In sum, with respect to the aggregate minimum sentence, the trial

court imposed the parties’ agreed-upon term of 16 months’ imprisonment.

However, the aggregate maximum sentence was 10 years, twice the

recommended five years’ term in the PSI, and more than Appellant’s

requested three or four-year maximum term. We further note the trial court

imposed the statutory maximum sentences for one terroristic threats (M1)

7 18 Pa.C.S. § 3304(a).

8 18 Pa.C.S. § 2701(a)(1).

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count, both REAP (M2) counts, and simple assault (M2).9 However, the court

did not impose the statutory maximum for the remaining count of terroristic

threats (M1) nor criminal trespass (F3).10

Appellant filed counseled, timely, virtually identical post-sentence

motions at all three dockets, which requested shorter maximum sentences.

The trial court conducted a brief hearing on July 12, 2021, denying relief.11

On July 16th, the trial court issued three separate orders denying Appellant’s

motions, concluding the maximum sentences were “fit and appropriate given

all circumstances.”12 See Order, Docket 698, 7/16/21; Order, Docket 867,

7/16/21; Order, Docket 1378, 7/16/21.

9 See 18 Pa.C.S. § 1104(1) (maximum sentence for an M1 is five years’ imprisonment), 1104(2) (M2 — two years’ imprisonment).

10See 18 Pa.C.S. § 1103(3) (maximum sentence for an F3 is seven years’ imprisonment).

11Appellant did not appear at this post-sentence hearing, although Counsel was present.

12 As the trial court issued three separate orders, Walker is not implicated. See Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (“[W]here a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case.”), overruled in part, Commonwealth v. Young, 265 A.3d 462, 477 (Pa. Dec. 22, 2021) (reaffirming that Pa.R.A.P. 341 requires separate notices of appeal when single order resolves issues under more than one docket, but holding Pa.R.A.P. 902 permits appellate court to consider appellant’s request to remediate error when notice of appeal is timely filed). In any event, as we state infra, Appellant properly filed three separate notices of appeal.

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Appellant timely filed three separate notices of appeal. In lieu of

Pa.R.A.P. 1925(b) statements of errors complained of on appeal, Counsel filed

a statement of intent to file an Anders petition. See Pa.R.A.P. 1925(c)(4).

This panel reviewed Counsel’s initial Anders petition and brief and

observed Counsel had not requested transcription of the plea or sentencing

hearing, the trial court had not filed an opinion, and the Commonwealth did

not file a brief. Accordingly, on April 5, 2022, this panel directed Counsel to

obtain the missing notes of testimony and then either file a proper Anders

petition and brief or advisement of intent to file an advocate’s brief. Counsel

has filed an amended Anders petition and brief, as well as copies of the

plea/sentencing and post-sentencing hearing transcripts. As stated above,

the Commonwealth has not responded.

II. Anders Petition to Withdraw & Brief

“This Court must first pass upon counsel’s petition to withdraw before

reviewing the merits of the underlying issues[.]” Commonwealth v.

Orellana, 86 A.3d 877, 879 (Pa. Super. 2014). 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 and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. . . .

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Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation

omitted). In addition, pursuant to Santiago, counsel’s 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. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017),

quoting Santiago, 978 A.2d at 361. If this Court determines that counsel has

satisfied the technical requirements of Anders and Santiago, we then

conduct an independent review of the record to discern if there are non-

frivolous issues. Schmidt, 165 A.3d at 1006 (citation omitted).

Here, Counsel’s petition to withdraw averred they: (1) “conducted a

thorough review . . . of the record[,] found no merit in any . . . potential

issues,” and believe “the appeal is frivolous;” and (2) advised Appellant of his

right to retain new counsel and raise any additional points. Counsel’s Petition

to Withdraw as Counsel, 5/11/22, at 1-2. Counsel attached a copy of a letter

sent to Appellant, which advised of their conclusion that Appellant’s issues

would have no merit, and that Appellant had a right to retain private counsel

or proceed pro se. Appellant has not filed any response, pro se or counseled.

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In the amended Anders brief, Counsel presents two sentencing issues

(discussed infra), with discussion of relevant authority, and explains why they

believe the issues or the appeal are wholly frivolous. Anders Brief at 14-21.

We determine Counsel has complied with the technical requirements of

Anders and Santiago, and thus now independently review whether

Appellant’s sentencing issues are frivolous, and whether there are any non-

frivolous appellate issues. See Schmidt, 165 A.3d at 1006.

III. Appellant’s Sentencing Issues

First, Counsel raises Appellant’s desired claims that his aggregate

maximum sentence of ten years violated the terms of the plea agreement.

We note:

“In determining whether a particular plea agreement has been breached, we look to ‘what the parties to this plea agreement reasonably understood to be the terms of the agreement.’” Such a determination is made “based on the totality of the surrounding circumstances,” and “[a]ny ambiguities in the terms of the plea agreement will be construed against the [Commonwealth].”

Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en

banc) (citations omitted).

Here, Counsel points out that the written plea colloquy, signed by

Appellant, specified, “[Appellant] to receive a minimum period of 16 months

incarceration. Maximum to the Court. . . .” Anders Brief at 14, quoting

Negotiated Plea Agreement & Guilty Plea Colloquy, 5/6/21, at 2 (some

capitalization removed). At the combined plea and sentencing hearing, the

Commonwealth confirmed this agreement: “The plea calls for a minimum

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period of 16 months’ incarceration, with the maximum and all other terms to

the Court.” N.T., 6/14/21, at 3. Furthermore, the written plea colloquy set

forth the maximum sentences of each charge, and in the oral plea colloquy at

the plea hearing, Appellant affirmed that he understood “the maximum

possible sentence . . . that may be imposed, as . . . set forth on the first page

of the plea agreement.” See N.T., 6/14/21, at 6. Accordingly, the record

does not support a claim that the parties agreed to any maximum term in

their plea deal, and we agree with Counsel that this claim is frivolous. See

Hainesworth, 82 A.3d at 447; Anders Brief at 15.

Next, Counsel presents Appellant’s desired claim that his maximum

sentences exceeded the legal and statutory maximum limits. “When a trial

court imposes a sentence outside of the legal parameters prescribed by the

applicable statute, the sentence is illegal and should be remanded for

correction.” Commonwealth v. Foster, 960 A.2d 160, 165 (Pa. Super.

2008) (citation omitted).

Counsel explains the aggregate maximum sentence, 10 years, that

Appellant received is comprised of: (1) five years’ imprisonment, for terroristic

threats (M1) at Docket 698; and (2) a consecutive five years, for trespass (F3)

at Docket 867. These two sentences were within the statutory maximums of,

respectively, five years and seven years, for an M1 and F3. See 18 Pa.C.S. §

106(b)(4), (6); Anders Brief at 15-16. We agree with this analysis, and thus

likewise agree that any illegal sentence claim on this basis is frivolous.

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IV. Independent Review of Record

Having determined that Counsel has satisfied the technical requirements

of Anders and Santiago, we now conduct an independent review of the

record to discern if there are non-frivolous issues. See Schmidt, 165 A.3d at

1006 (citation omitted). We conclude there are none.

This Court has explained: “Generally, ‘upon entry of a guilty plea, a

defendant waives all claims and defenses other than those sounding in the

jurisdiction of the court, the validity of the plea, and what has been termed

the ‘legality’ of the sentence imposed[.]’” Commonwealth v. Jabbie, 200

A.3d 500, 505 (Pa. Super. 2018) (citation omitted). We have “established six

topics that must be covered by a valid plea colloquy: ‘1) the nature of the

charges, 2) the factual basis for the plea, 3) the right to a jury trial, 4) the

presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s

power to deviate from any recommended sentence.’” Id. at 506, citing, inter

alia, Pa.R.Crim.P. 590, cmt.

We have addressed Appellant’s sentencing claims above. With respect

to the validity of the plea, we observe Appellant completed separate written

plea colloquys at each docket. In each one, he indicated he understood each

of the six topics listed above. See Jabbie, 200 A.3d at 505. Appellant orally

affirmed the same at the plea and sentencing hearing. See N.T., 6/14/21, at

5-7. Appellant also agreed that he understood the terms of the plea

agreement, the permissible ranges of sentences, and the maximum possible

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sentences. Id. at 6. Accordingly, we would determine his pleas were validly

entered. See Jabbie, 200 A.3d 505.

V. Conclusion

In sum, we agree with Counsel that Appellant’s two desired sentencing

issues are frivolous, and conclude the record reveals no other potential, non-

frivolous issue for appeal. Accordingly, we grant Counsel’s petition to

withdraw from representation and affirm Appellant’s judgment of sentence.

Judgments of sentence affirmed. Counsel’s petition to withdraw

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/24/2022

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