Com. v. Redmond, T.

2022 Pa. Super. 74, 273 A.3d 1247

• Court: Superior Court of Pennsylvania
• Decided: April 21, 2022
• Docket: 1226 MDA 2021
• Status: Published

Opinion

J-S13033-22

2022 PA Super 74

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TODD MICHAEL REDMOND : : Appellant : No. 1226 MDA 2021

Appeal from the Judgment of Sentence Entered August 16, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0004038-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TODD MICHAEL REDMOND : : Appellant : No. 1227 MDA 2021

Appeal from the Judgment of Sentence Entered August 16, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003260-2020

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED APRIL 21, 2022

Appellant, Todd Michael Redmond, appeals from the August 16, 2021,

judgment of sentence entered in the Court of Common Pleas of York County

following his open guilty plea at lower court docket number CP-67-CR-

0004038-2018 (“4038-2018”) to one count of DUI while BAC .02 or greater-

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* Former Justice specially assigned to the Superior Court. J-S13033-22

third offense, one count of DUI-controlled substance, and one count of

habitual offenders,1 as well as at lower court docket number CP-67-CR-

0003260-2020 (“3260-2020”) to one count of DUI-general impairment-fourth

or subsequent offense, possession of a controlled substance, and driving while

operating privilege is suspended or revoked.2

Additionally, Appellant’s counsel has filed a petition seeking to withdraw

his representation, as well as a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396 (1967), and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009) (hereinafter “Anders brief”). After a careful review,

we grant counsel’s petition to withdraw and affirm Appellant’s judgment of

sentence.

The relevant facts and procedural history are as follows: On June 10,

2021, Appellant, who was represented by counsel, proceeded to a hearing at

which he entered an open guilty plea to the charges at both docket numbers

indicated supra. Appellant confirmed he could read, write, and understand the

English language. N.T., 6/10/21, at 4. He also confirmed no one had

threatened, coerced, or promised him anything in exchange for his pleas. Id.

at 4-5. He acknowledged he had the right to a jury trial at which the

1 75 Pa.C.S.A. § 1543(b)(1)(1.1)(ii), 75 Pa.C.S.A. § 3802(d)(3), and 75 Pa.C.S.A. § 6503.1, respectively.

2 75 Pa.C.S.A. § 3802(a)(1), 35 P.S. § 780-113(a)(16), and 75 Pa.C.S.A. §

1543(b)(1.1)(ii), respectively.

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Commonwealth would have the burden to prove, beyond a reasonable doubt,

that he committed the charged offenses, and Appellant would have the

opportunity to present evidence in his defense. Id. at 5. Appellant indicated

it was his desire to waive his right to a trial and enter pleas of guilty. Id.

Moreover, Appellant completed a written guilty plea colloquy as to both docket

numbers.

With regard to the facts underlying the plea, at lower court docket

number 4038-2018, Appellant indicated that, on May 28, 2018, he was driving

with a suspended driver’s license, DUI related, while under the influence of

alcohol and marijuana. Id. at 6. He admitted the alcohol and marijuana

impaired his ability to drive safely. Id. He acknowledged that he is a habitual

offender. Id. at 7.

With regard to lower court docket number 3260-2020, Appellant

indicated that, on June 10, 2020, he was driving while intoxicated with a

suspended driver’s license, DUI related. Id. He acknowledged he had in his

possession liquid marijuana and crack cocaine when the police stopped his

vehicle. Id. He admitted the alcohol he consumed prior to driving rendered

him incapable of safe driving. Id. at 8.

The trial court determined Appellant knowingly, voluntarily, and

intelligently waived his right to a trial, and the trial court accepted Appellant’s

guilty pleas. Id. at 11-12. The trial court ordered a pre-sentence investigation

report.

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On August 16, 2021, Appellant proceeded to a sentencing hearing at

which he was represented by counsel. At the hearing, defense counsel

informed the trial court that Appellant acknowledges he has a drinking

problem. N.T., 8/16/21, at 4. Defense counsel admitted Appellant has a

lengthy history of DUI; however, defense counsel suggested that, over the

course of Appellant’s latest incarceration, Appellant has learned that he needs

to develop skills to stop drinking and driving. Id. at 4-5. Defense counsel

informed the trial court that Appellant has been employed in the prison

kitchen, he reads the Bible, and he completed Thinking for a Change. Id. at

5.

Appellant made a statement to the trial court. Specifically, he informed

the trial court that, by reading books, he has gotten it through his “thick skull”

that he has to stop drinking. Id. He admitted he has been drinking alcohol

throughout his life, and it is time for him to make a change. Id. To this end,

he has learned he is “triggered” to drink when he “hangs around with old

friends[,]” and, thus he is going to “find new ones[.]” Id. at 6. Appellant

admitted he puts other people’s lives at risk when he drinks and drives, and

he attributed it to “stupidity” on his part. Id. Appellant acknowledged the

best approach is for him to stop drinking. Id. at 7.

In response, the Assistant District Attorney (“ADA”) suggested that,

given the many DUI offenses Appellant has had in ten years, and his driver’s

license is suspended until at least 2028, Appellant’s indication he has learned

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his lesson is insincere. Id. at 8. Specifically, the ADA indicated “[i]f he did

not understand the problems he had before [the latest offenses], the fact that

it’s taken him this long makes me very suspect if he has actually learned

anything at all[.]” Id. The ADA asked for a lengthy state sentence on the DUI

offenses. Id.

The trial court acknowledged it reviewed the pre-sentence investigation

report. Id. at 9. The trial court indicated Appellant is a single male with one

dependent, he has a history of DUI offenses, and he has an “abysmal record”

of driving with a suspended license. Id. The trial court noted Appellant has

an eighth-grade education and never obtained his GED. Id. At the time of

his most recent arrest, Appellant was employed at Redmond’s Construction,

and he has been incarcerated since June 10, 2020. Id. at 9-10. Accordingly,

the trial court determined Appellant was entitled to 433 days of credit for time

served. Id. at 10.

The trial court indicated Appellant has a prior record score of five, and

he has a history of substance abuse, as well as alcohol abuse. Id. The trial

court acknowledged receiving a letter from Appellant wherein Appellant

indicated he understands the seriousness of his alcohol abuse problem, and

he desired leniency. Id. at 11. The trial court then imposed sentence “[b]ased

on [Appellant’s] history and all the factors we’re required to consider[.]” Id.

Specifically, at lower court docket number 4028-2018, the trial court

sentenced Appellant to six months to twelve months in prison for DUI while

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BAC .02 or greater, and one year to two years for DUI-controlled substance,

the sentences to run consecutively. The trial court also imposed a concurrent

sentence of six months to twelve months in prison for habitual offenders.

At lower court docket number 3260-2020, the trial court sentenced

Appellant to two years to five years in prison for DUI-general impairment-

fourth or subsequent offense, six months to twelve months in prison for

possession of a controlled substance, and six months to twelve months in

prison for driving while operating privilege is suspended or revoked. The

sentences were imposed concurrently to each other but consecutively to the

sentence imposed at docket number 4028-2018.

Appellant filed a timely counseled post-sentence motion at both docket

numbers, and the trial court denied the motions on August 20, 2021.

Appellant filed a separate counseled notice of appeal at each docket number

on September 17, 2021.3 The trial court directed Appellant to file a Pa.R.A.P.

1925(b) statement, Appellant timely complied, and the trial court filed a

responsive Rule 1925(a) opinion.

On February 18, 2022, counsel filed in this Court a petition seeking to

withdraw his representation, as well as an Anders brief. Appellant filed no

further submissions either pro se or through privately retained counsel.

3 This Court consolidated the appeals.

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Prior to addressing any issue raised on appeal, we must first resolve

counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa.Super. 2007) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal

pursuant to which 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 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). In addition, our Supreme Court in Santiago stated

that an Anders 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.

Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her right to “(1) retain new counsel to pursue

the appeal; (2) proceed pro se on appeal; or (3) raise any points that the

appellant deems worthy of the court’s attention in addition to the points raised

by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,

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353 (Pa.Super. 2007) (citation omitted). Substantial compliance with the

Anders requirements is sufficient. See id.

Herein, counsel filed a petition to withdraw as counsel and an Anders

brief. His brief and petition substantially comply with the technical

requirements of Anders and Santiago. Moreover, counsel has provided this

Court with a copy of the letter, which he sent to Appellant advising him of his

right to retain new counsel, proceed further with his case pro se, and raise

any points that he deems worthy of this Court’s attention. See

Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore,

we proceed to examine the issues counsel identified in the Anders brief and

then conduct “a full examination of all the proceedings, to decide whether the

case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195

(Pa.Super. 2018) (en banc) (quotation omitted).

In the Anders brief, counsel sets forth the following issue: “Whether

the sentencing court abused its discretion when it sentenced [Appellant] to

serve consecutive sentences?” Appellant’s Brief at 4. Appellant avers the trial

court erred when it ordered the sentence at 3260-2020 to run consecutively

to the sentence imposed at 4028-2018. In this vein, Appellant contends the

trial court failed to consider the mitigating circumstances or Appellant’s

rehabilitative potential in imposing the sentences consecutively. Appellant

suggests the imposition of the sentence at 3260-2020 concurrently to the

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sentence at 4028-2018, and with a focus on treatment, would have satisfied

Appellant’s rehabilitative needs as set forth under 42 Pa.C.S.A. § 9721(b).

Appellant’s issues present a challenge to the discretionary aspects of his

sentence. “[C]hallenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right.” Commonwealth v. Derry, 150

A.3d 987, 991 (Pa.Super. 2016) (citation omitted). Rather, before reaching

the merits of such claims, we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved his issues; (3) whether Appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is inappropriate under the sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa.Super. 2011) (citation

omitted). Here, assuming, arguendo, all of these requirements have been

met, we conclude Appellant’s sentencing issue is meritless.

Our standard of review concerning the discretionary aspects of

sentencing is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005).

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42 Pa.C.S.A. § 9721(b) offers the following guidance to the trial court’s

sentencing determination:

[T]he sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b).

Furthermore,

Section 9781(c) specifically defines three instances in which the appellate courts should vacate a sentence and remand: (1) the sentencing court applied the guidelines erroneously; (2) the sentence falls within the guidelines, but is “clearly unreasonable” based on the circumstances of the case; and (3) the sentence falls outside of the guidelines and is “unreasonable.” 42 Pa.C.S.A. § 9781(c). Under 42 Pa.C.S.A. § 9781(d), the appellate courts must review the record and consider the nature and circumstances of the offense, the sentencing court’s observations of the defendant, the findings that formed the basis of the sentence, and the sentencing guidelines. The weighing of factors under 42 Pa.C.S.A. § 9721(b) is exclusively for the sentencing court, and an appellate court may not substitute its own weighing of those factors. The primary consideration, therefore, is whether the court imposed an individualized sentence, and whether the sentence was nonetheless unreasonable for sentences falling outside the guidelines, or clearly unreasonable for sentences falling within the guidelines, pursuant to 42 Pa.C.S.A. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa.Super. 2012) (citations

omitted).

When imposing sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation. Where pre-sentence reports exist, we shall…presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory

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factors.

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014)

(quotation marks and quotation omitted).

Moreover, we note the “imposition of consecutive rather than concurrent

sentences lies within the sound discretion of the sentencing court.”

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.Super. 2013) (citation

omitted). It is well-accepted “in imposing a sentence, the trial [court] may

determine whether, given the facts of a particular case, a sentence should run

consecutive to or concurrent with another sentence being imposed.”

Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa.Super. 2003).

In the case sub judice, the trial court “sentenced [Appellant] within the

standard range for each of the sentences it imposed.” Anders brief at 15.

Considering the history of Appellant jeopardizing the safety of innocent people

by his repeated violations of the law, the sentence may well have been in the

aggravated range. The record reveals that the trial court imposed an

individualized sentence consistent with the protection of the public, the gravity

of the offense as it relates to the impact on the life of the victim and the

community, and the rehabilitative needs of Appellant. 42 Pa.C.S.A. § 9721(b).

As indicated supra, the trial court heard Appellant’s latest assertion that

he intends to stop drinking, as well as the evidence of Appellant’s participation

in prison programs, education, and employment history. In addressing

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Appellant’s challenge to the trial court’s imposition of the sentence at 3260-

2020 consecutively to the sentence at 4038-2018, the trial court indicated:

[Appellant’s] DUIs, from both dockets, were his third and fourth DUIs within ten (10) years; [Appellant’s] third (b)(1.1) DU[I]; and [Appellant’s] third habitual offender charge. [Appellant’s] license is suspended to at least 2028. [The trial court] noted [Appellant’s] abysmal record of driving while suspended, as well as acknowledged [Appellant] has been classified by PennDOT as a habitual offender. [Appellant] has a prior record of five (5). [Appellant] has a history of substance abuse, including [the] use of marijuana, cocaine, methamphetamine, and alcohol. [Appellant] has a serious substance abuse problem ranging from different types of alcohol and drugs. [Appellant’s] greatest battle, in terms of longevity, is alcohol, as he reported that between the ages of forty-five (45) to forty-nine (49), he was drinking a 12 pack of beer a day. [The trial court] took all these factors, as well as the information contained within the [pre-sentence investigation report] when fashioning a sentence for [Appellant]. [Appellant] has the opportunity in state prison to be considered for the state drug treatment program. The Commonwealth waived any ineligibility. Thus, [Appellant’s] rehabilitative needs can again be assessed and addressed while he serves his sentence in an SCI. Therefore, the [trial court] gave careful consideration to all sentencing factors, the sentence imposed is appropriate, and there was no abuse of discretion.

Trial Court Opinion, filed 11/5/21, at 15-17 (citations to record omitted).

We find no abuse of discretion in this regard. While Appellant requests

this Court weigh the sentencing factors differently than the trial court, as

indicated supra, “[t]he weighing of factors under 42 Pa.C.S.A. § 9721(b) is

exclusively for the sentencing court, and an appellate court may not substitute

its own weighing of those factors.” Bricker, 41 A.3d at 876. The trial court

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provided ample reasons for imposing the sentence at 3260-2020

consecutively to the sentence at 4038-2018.

After examining the issues contained in the Anders brief, we agree with

counsel that the appeal is wholly frivolous. “Furthermore, after conducting a

full examination of all the proceedings as required pursuant to Anders, we

discern no non-frivolous issues to be raised on appeal.” Yorgey, 188 A.3d at

1195. Thus, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

Petition to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/21/2022

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