Com. v. Pittinger, A.

• Court: Superior Court of Pennsylvania
• Decided: October 18, 2018
• Docket: 1638 MDA 2017
• Status: Unpublished

Opinion

J-S45035-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ADAM EUGENE PITTINGER : : Appellant : No. 1638 MDA 2017

Appeal from the Judgment of Sentence May 3, 2017 in the Court of Common Pleas of Berks County Criminal Division at Nos: CP-06-CR-0003857-2016 CP-06-CR-0004111-2016 CP-06-CR-0004322-2016 CP-06-CR-0005452-2016

BEFORE: PANELLA, J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED OCTOBER 18, 2018

Appellant, Adam Eugene Pittinger, appeals from the judgment of

sentence imposed following his open guilty plea to three counts of felony

burglary in the first degree and one count of misdemeanor theft in the first

degree. Specifically, Appellant challenges the denial of his pro se post-

sentence motions to withdraw his guilty plea, and for a reduction of sentence.

Appellant’s counsel has filed an Anders1 Brief, concluding Appellant’s claims

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1 Anders v. State of Cal., 386 U.S. 738 (1967). To date, Appellant has not responded to the petition to withdraw.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S45035-18

are wholly frivolous, and a petition to withdraw as counsel. We grant counsel’s

petition to withdraw and affirm the judgment of sentence.

This case returns to us after a remand to supplement the certified record

with transcripts of the guilty plea and sentencing hearing.2 The procedural

history of this case is both complex and convoluted, not the least because of

Appellant’s multiple efforts to engage in representing himself, resulting in

impermissible hybrid representation. See Commonwealth v. Jette, 23 A.3d

1032, 1044 (Pa. 2011) (“Therefore, we reiterate that the proper response to

any pro se pleading is to refer the pleading to counsel, and to take no further

action on the pro se pleading unless counsel forwards a motion.”).

Nevertheless, we find that on careful review, the underlying procedural

facts are not in substantial dispute. On the morning of trial, May 3, 2017,

facing twenty-four counts of felony burglary and related charges, Appellant,

a repeat felon, agreed to an open guilty plea to substantially reduced charges,

three counts of felony burglary, and one count of misdemeanor theft in the

first degree. (See Trial Court Opinion, 1/17/18, at 1-2). Appellant signed a

written plea agreement for each of the four counts, confirming that he was

pleading of his own free will.

The court gave Appellant a significant amount of time to make a

statement. (See N.T. Guilty Plea and Sentence, 5/03/17 at 12-18). In an

2 We thank the trial court for its prompt and helpful cooperation.

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extended discussion with the court, (during which Appellant tried briefly but

unsuccessfully to obtain a previous plea bargain he claimed he had been

offered), he mostly made a request for one more chance to address his crack

cocaine and alcohol problems.

That same day the court imposed an aggregate sentence of not less

than seventy-two nor more than two-hundred-forty months of incarceration

(six to twenty years’ imprisonment). The trial court had the benefit of a pre-

sentence investigation report (PSI), which included Appellant’s prior criminal

record of nineteen burglary convictions. (See id. at 11). Based on the

negotiated plea, the Commonwealth nolle prossed the remaining charges

After sentencing, Appellant filed a pro se post-sentence motion to

withdraw his plea of guilty, claiming coercion and ineffectiveness of plea

counsel. He also filed a motion to reduce sentence. The trial court initially

dismissed both motions, noting the hybrid representation issue because the

Appellant was still represented by counsel from the Public Defender’s Office.

(See Order, 9/19/17 at 1 n.1).

Counsel filed a motion to withdraw. The trial court granted the motion

to withdraw and appointed conflict counsel, John Fielding, Esq. as a substitute.

After a hearing, at which Appellant was represented by Attorney Fielding, the

court denied Appellant’s motions. (See id.). Despite being represented,

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Appellant filed a notice of appeal pro se (Notice of Appeal, 10/20/17).3 The

trial court filed and sent an order for a Statement of Errors, (apparently,

directly to Appellant, even though he was still represented by Attorney Fielding

as counsel of record). (See Order, 10/30/17). Appellant responded pro se.4

The trial court notes that the response was untimely. (See Trial Ct. Op., at

3).

Conflict counsel filed an Anders brief, and a petition to withdraw. We

find no indication in the record that Appellant filed a response to the Anders

brief, or raised any additional claims.

The Anders brief presents two questions for review:

A. Did the trial court erred (sic) in denying the post sentence motion on September 19, 2017, regarding:

1. Appellant’s Motion to Withdraw Guilty Plea, because he did not receive the bargained-for sentence; and

2. Appellant’s Motion to Modify Sentence to the bargained-for sentence?

B. Were prior counsels Yessler, Litvinov, and MacBeth of the Berks County Public Defender’s Office ineffective in their representation of the Appellant by:

1. Failing to give Appellant a copy of his discovery; ____________________________________________

3 We decline to quash this appeal for failure to comply with Pa.R.A.P. 341. Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), decided June 1, 2018, mandates strict compliance with Rule 341. However, it only applies to future cases. See id. at 977. Walker, therefore, by its terms, is not controlling.

4 On diligent review, we are unable to locate in the record Attorney Fielding’s statement of intent to file an Anders/McClendon brief in lieu of filing a statement of errors. See Pa.R.A.P. 1925(c)(4).

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2. Failing to file timely motions; 3. Failure of counsel to communicate with Appellant; 4. Waiving Appellant's rights without consultation or consent; 5. Failure to offer a vigorous defense; 6. Making false promises to, and using coercion against, Appellant?

(Anders Brief, at 4).

“When faced with a purported Anders brief, this Court may not review

the merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.

1997) (citation omitted). To be permitted 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 it has been determined that

the appeal would be frivolous; (2) file a brief referring to anything that might

arguably support the appeal, but which does not resemble a “no-merit” letter

or amicus curiae brief; and (3) furnish a copy of the brief to the defendant

and advise him of his right to retain new counsel or raise any additional points

that he deems worthy of the court's attention. See id.

“After establishing the antecedent requirements have been met, this

Court must then make an independent evaluation of the record to determine

whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

Townsend, 693 A.2d 980, 982 (Pa.Super.1997) (citation omitted).

Here, we conclude that counsel has substantially complied with all of the

requirements of Anders. In his petition and brief, counsel indicated he made

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a conscientious examination of the record, determined the appeal would be

wholly frivolous, confirmed that he had furnished Appellant with a copy of the

brief, and stated that he advised Appellant of his rights regarding

representation. Moreover, counsel has provided this Court with a proper

Anders brief discussing the issues. Accordingly, we conclude that counsel

has substantially complied with the requirements for an Anders brief.

Therefore, we shall proceed to an independent evaluation of the record

in order to determine the accuracy of counsel’s averment that this appeal is

wholly frivolous.

Preliminarily, on independent review, we note that any issues intended

to be raised by Appellant pro se are waived for failure to comply timely with

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are waived”).

Appellant presents no evidence in support of compliance with the Prisoner

Mailbox Rule. (See Trial Ct. Op., at 3 n.3).

Next, we conclude that Appellant’s first issue, as embodied in the

Anders statement of questions involved, including both sub-questions, are

not only without merit, but unsupported by the record. On independent review

of the record, we conclude that there was no “bargained for sentence.”

To the contrary, it is abundantly clear, as noted by the trial court, that

Appellant entered an open plea. (See Trial Ct. Op., at 1). Except for one

brief, passing reference to a previous plea offer, Appellant’s entire lengthy,

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rambling statement to the sentencing court focusses on his accounts of

personal misfortune and multiple relapses into drug addiction. Appellant’s

first issue is without merit and wholly frivolous.

We reject Appellant’s second issue, claims of ineffective assistance of

his numerous counsel, without prejudice to his raising and preserving them

for consideration on collateral review. See Commonwealth v. Grant, 813

A.2d 726, 738 (Pa. 2002), clarified on denial of reargument, 821 A.2d 1246

(Pa. 2003). (“petitioner should wait to raise claims of ineffective assistance

of trial counsel until collateral review”) (footnote omitted).

Appellant’s claims are wholly frivolous. On independent review of the

record, we find no other non-frivolous claims warranting review on the merits.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/18/2018

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