Com. v. Walker-Banks, D.

• Court: Superior Court of Pennsylvania
• Decided: June 8, 2023
• Docket: 1083 MDA 2022
• Status: Unpublished

Opinion

J-S06009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DASHON MICHAEL WALKER-BANKS : : Appellant : No. 1083 MDA 2022

Appeal from the Judgment of Sentence Entered July 5, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No.: CP-22-CR-0001358-2021

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

MEMORANDUM BY STABILE, J.: FILED JUNE 08, 2023

Appellant, Dashon Michael Walker-Banks, appeals from the judgment

the Court of Common Pleas of Dauphin County entered on July 5, 2022.

Counsel has filed a brief and petition to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009). Upon review, we grant counsel’s petition for leave to

withdraw and affirm Appellant’s judgment of sentence.

The record reveals that, on January 29, 2021, Trooper Nickey of the

Pennsylvania State Police saw Appellant run a red light. Trooper Nickey

stopped Appellant and, while conversing with him, smelled an odor of

marijuana. Appellant’s eyes were watery and droopy. Appellant admitted to

using marijuana that day, either hours or an hour prior to driving. After failing

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* Former Justice specially assigned to the Superior Court. J-S06009-23

field sobriety tests, Appellant consented to a blood draw. Appellant’s blood

came back positive for both delta-9 THC and the inactive metabolites of

marijuana. Appellant was found guilty of violating 75 Pa.C.S.A.

§ 3802(d)(1)(i) (any amount of a schedule I controlled substance) (Count 1),

75 Pa.C.S.A. § 3802(d)(1)(iii) (any amount of a metabolite of a controlled

substance) (Count 2), and 75 Pa.C.S.A. § 3802(d)(2) (impaired driving due

to a controlled substance) (Count 3). On the same day, at Count 1, pursuant

to 42 Pa.C.S.A. § 9763, the trial court sentenced Appellant to 6 months’

probation, with the first month on house arrest with electronic monitoring, a

$1,000 fine, plus costs, and ordered no drugs or alcohol and full-time

employment. Count 2 and Count 3 merged with Count 1 for purposes of

sentencing.

This appeal followed. On August 3, 2022, the trial court entered a

concise statement order directing Appellant to file a concise statement within

21 days of the order. On August 19, 2022, counsel for Appellant filed a

statement of intent to file an Anders brief in lieu of filing a concise statement.

Appellant challenges the sufficiency of the evidence supporting his DUI

convictions. Before we address the merits of the challenge, however, we must

consider the adequacy of counsel’s compliance with Anders and Santiago.

Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013); see

also Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)

(stating, “[w]hen faced with a purported Anders brief, this Court may not

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

to withdraw”) (citation omitted).

Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The 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.

Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his 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. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

Counsel’s brief substantially complies with these requirements by

(1) providing a summary of the procedural history and facts; (2) referring to

matters of record relevant to this appeal; and (3) explaining why the appeal

is frivolous. Counsel also sent his brief to Appellant with a letter advising him

of the rights listed in Orellana. Accordingly, all Anders’ requirements are

satisfied.

We now proceed to examine the issues counsel identified in the Anders

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

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whether the case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d

1190, 1195 (Pa. Super. 2018) (en banc) (quotation omitted).

Appellant was convicted of DUI under Section § 3802(d)(1) of the

Vehicle Code, which provides that:

[a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1) There is in the individual's blood any amount of a:

(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device, and Cosmetic Act [(“CSA”)];

(ii) Schedule II or Schedule III controlled substance, as defined in [the CSA], which has not been medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) or (ii).

75 Pa.C.S.A. § 3802(d)(1).

Section 3802(d)(1), therefore, prohibits an individual from driving when

there is any amount of a Schedule I controlled substance in his blood. To

sustain a conviction under this Section 3802(d)(1) on this basis, the

Commonwealth must provide that the defendant, at the time of driving, had

in his blood any amount of either (1) the active compound of a Schedule I

drug or (2) a metabolite of a Schedule I drug. Commonwealth v. Given,

244 A.3d 508, 511 (Pa. Super. 2020). CSA classifies marijuana or

“marihuana” as a Schedule I controlled substance. 35 P.S. § 780-104(1)(iv).

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This Court has noted that Delta-9-THC is the active compound in marijuana.

Given, 244 A.3d at 509.

The record contains ample evidence to support Appellant’s conviction

under Section 3802(d)(i). Trooper Nickey found Appellant in physical control

of his vehicle, as he saw Appellant running a red light. Because Appellant

demonstrated indicators of impairment, failed sobriety testing, and admitted

to smoking marijuana earlier that day, Trooper Nickey asked him to submit to

a blood draw. Appellant consented to the blood draw, which showed that his

blood contained both Delta 9-THC, the active ingredient in marijuana, and the

inactive metabolites of marijuana, at the time he was driving.

Therefore, we conclude that there was sufficient evidence to support

Appellant’s conviction for DUI under Section 3802(d)(1) and agree with

counsel’s assessment that this argument is wholly frivolous.

Next, Appellant was convicted of violating Section 3802(d)(2) of the

Vehicle Code, which provides as follows:

(d) An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

**** (2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(d)(2).

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To convict a defendant of DUI under Section 3802(d)(2), the

Commonwealth must demonstrate “that [the defendant] was under the

influence of a drug to a degree that impairs his or her ability to safely drive or

operate a vehicle.” Commonwealth v. Williamson, 962 A.2d 1200, 1204

(Pa. Super. 2008) (citations and quotation marks omitted). Section

3802(d)(2) “does not require proof of a specific amount of a drug in the

driver’s system. It requires only proof that the driver was under the influence

of a drug or combination of drugs to a degree that the ability to drive is

impaired.” Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012)

(citations and quotation marks omitted). Our Supreme Court has recognized

that the Commonwealth can prove DUI through evidence of “the offender’s

actions and behavior,” including “[in]ability to pass field sobriety tests[,]

demeanor, including toward the investigating officer,” and refusal of chemical

testing. Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009);

Commonwealth v. Myers, 164 A.3d 1162, 1171 (Pa. 2017). See also

Commonwealth v. Griffin, 32 A.3d 1231, 1239 (Pa. 2011) (explaining that

“subsection 3802(d)(2) does not limit, constrain, or specify the type of

evidence that the Commonwealth can proffer to prove its case”).

Here, the record shows that Appellant ran a red light, was unable to

complete the field sobriety test, and showed watery and droopy eyes.

Accordingly, we conclude that there was sufficient evidence to support

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Appellant’s conviction for DUI under Section 3802(d)(2) and agree with

Finally, the Anders brief asserts that any objection to Appellant’s

sentence would be frivolous. The court sentenced Appellant to, inter alia, one

month of house arrest with electronic monitoring. The court imposed this

sentence under 42 Pa.C.S.A. § 9763(c), which permits restrictive probation

conditions for driving under the influence, instead of a mandatory minimum

prison sentence of 72 hours provided under 75 Pa.C.S.A. § 3804(c).1 Counsel

1 Section 3804(c) provides as follows:

An individual who violates section 3802(a)(1) and refused testing of breath under section 1547 (relating to chemical testing to determine amount of alcohol or controlled substance) or testing of blood pursuant to a valid search warrant or an individual who violates section 3802(c) or (d) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 72 consecutive hours;

(ii) pay a fine of not less than $1,000 nor more than $5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

75 Pa.C.S.A. § 3804(c).

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maintains that the court had the discretion to impose house arrest as a

condition of probation. Anders Brief at 12. We agree.

Where the defendant stands convicted of driving under the influence,

the court may sentence the defendant to imprisonment under the mandatory

minimum sentencing scheme in the Vehicle Code, see 75 Pa.C.S.A. § 3804,

or to probation2 under the Sentencing Code, see 42 Pa.C.S.A. § 9763.

Probation under Section 9763 can include house arrest. 42 Pa.C.S.A. §

9763(c)(2).

Imprisonment under the Vehicle Code and probation under the

Sentencing Code are “alternative” penalties for driving under the influence,

and the selection of the proper alternative rests within the court’s discretion.

Commonwealth v. Popielarcheck, 190 A.3d 1137, 1144 (Pa. 2018)

(imprisonment under 75 Pa.C.S.A. § 3804 and probation under 42 Pa.C.S.A.

§ 9763 are “two schemes [that] provide a sentencing court with the

opportunity to select from alternative available sentences, consistent with the

2 Until the end of 2019, Section 9763 used the term “intermediate punishment” instead of “probation.” Effective December 18, 2019, “[s]ection 9763, which previously was titled ‘Sentence of county intermediate punishment,’ was retitled ‘Conditions of probation,’ and intermediate punishment is now classified as a type of probation.” Commonwealth v. Hoover, 231 A.3d 785, 790 (Pa. 2020) (Opinion Announcing the Judgment of the Court). A plurality of the Court acknowledged that “[c]ounty intermediate punishment programs are similar to traditional probation sentences” and observed that the 2019 legislative amendments now bring county and state intermediate punishment programs “under the umbrella of probation.” Id. (citation omitted). Section 9721 was also amended to delete references to County and State Intermediate Punishment programs.

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proper exercise of its discretion in keeping with the general standards for

sentencing”) (emphasis added). When the court elects to impose probation,

the mandatory minimum imprisonment dictates of Section 3804 have no

applicability. See id. at 1145 (“the introductory language of section 3804(d)

expressly limits its applicability to instances where the ‘a person is sentenced

pursuant to this chapter.’ . . . A defendant receiving an [intermediate

punishment] sentence is not being sentenced pursuant to ‘this chapter,’ i.e.,

Chapter 38 of the Vehicle Code, but rather is being sentenced in accordance

with Chapter 97 of the Sentencing Code. As such, the dictates of section

3804(d) have no application”).

Presently, the court sentenced Appellant to house arrest, a form of

probation under Section 9763, instead of imprisonment. The court had the

discretion to impose this penalty instead of applying the mandatory minimum

imprisonment provisions of Section 3804. Accordingly, we agree with counsel

that any objection to Appellant’s sentence would be frivolous.

Finally, 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.

Accordingly, we grant counsel’s petition to withdraw and affirm

Appellant's judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/08/2023

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