Com. v. Williams, C.

Opinion

J-S52010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CHARMAINE WILLIAMS,

Appellant No. 1754 WDA 2014

Appeal from the Judgment of Sentence May 14, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007565-2013

BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 30, 2015

Appellant, Charmaine Williams, appeals from the judgment of sentence

entered following her convictions of three counts of driving under the

influence (“DUI”), one count of driving while operating privilege is suspended

or revoked, and one count of operating a vehicle without required financial

responsibility. Appellate counsel has filed a petition to withdraw his

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which

govern a withdrawal from representation on direct appeal. We grant

counsel’s petition to withdraw and affirm the judgment of sentence.

We summarize the peculiar history of this case as follows. On the

evening of November 23, 2012, Appellant was involved in a single-vehicle

accident at East Street and Madison Avenue in the north side section of J-S52010-15

Pittsburgh. Appellant drove her vehicle into a concrete barrier causing her

airbags to deploy. Police arrived at the scene and conducted field sobriety

tests, which Appellant failed. Appellant was arrested and a breathalyzer test

revealed her blood alcohol content (“BAC”) was .261%. Appellant was

charged with three counts of DUI, one count of driving with a suspended

license (DUI related), and one count of operating a vehicle without the

required financial responsibility.

On January 23, 2014, Appellant pled guilty to the crimes stated above.

On May 14, 2014, the trial court imposed the following sentence upon

Appellant:

Count 1- DUI: Highest Rate of Alcohol, 2nd Offense: a term of incarceration of twelve to thirty-six months, to be followed by 2 years of state probation, and a fine of $2,500.00;

Count 2- DUI: General Impairment, 2nd Offense: no further penalty;

Count 3- DUI: General Impairment, 3rd Offense: no further penalty;

Count 4- Driving While Operating Privilege is Suspended or Revoked: DUI-Related, BAC Greater than .02%: a term of incarceration of ninety days to be served concurrent to the sentence at Count 1, and a fine of $1,000.00; and

Count 5- Operating Vehicle Without Required Financial Responsibility: a fine of $300.00.

Order of Sentence, 5/14/14, at 1.

On May 22, 2014, Appellant filed a timely motion to modify sentence,

asking the trial court to impose a recidivism risk reduction incentive (“RRRI”)

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sentence pursuant to the RRRI statute. 61 Pa.C.S. §§ 4501-4512. In an

order dated May 30, 2014, the trial court granted Appellant’s motion to

modify sentence. In an amended order generated on July 14, 2014, the trial

court amended Appellant’s sentence to include an RRRI minimum sentence

of nine months of incarceration. However, due to an apparent breakdown in

the court system, neither the trial court’s order of May 30, 2014, nor the

amended sentence prepared on July 14, 2014, was entered upon the trial

court docket in Appellant’s case until October 7, 2014, nor were they sent to

Appellant’s counsel of record.

In the interim, on September 22, 2014, the Allegheny County

Department of Court Records entered an order denying, by operation of law,

Appellant’s motion to modify sentence. Recognizing the error, on October 7,

2014, the trial court entered an order specifically vacating the order dated

September 22, 2014.1 Appellant filed this appeal on October 22, 2014.

In lieu of filing a Pa.R.A.P. 1925(b) statement, Appellant’s counsel filed

a statement of intent to file an Anders brief, pursuant to Pa.R.A.P. ____________________________________________

1 The text of the trial court’s order dated October 7, 2014, provides as follows:

AND NOW, to-wit, this 7th day of October, 2014, the Order of Court dated September 22, 2014, denying [Appellant’s] Post Sentence Motion by Operation of Law, is hereby VACATED. This Court, on May 30, 2014, granted [Appellant’s] Motion to Modify Sentence.

Order, 10/7/14, at 1.

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1925(c)(4). On February 3, 2015, the trial court filed a statement indicating

it was not preparing a Pa.R.A.P. 1925(a) opinion in light of the notice of

intent to withdraw filed by appellate counsel under Pa.R.A.P. 1925(c)(4).

As noted, counsel has filed a petition to withdraw from representation.

Before we address the questions raised on appeal, we first must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal.

The procedural mandates are that 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 defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court’s attention.

Id. at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within the petition

to withdraw, counsel averred that he conducted a conscientious review of

the record and pertinent legal research. Following that review, counsel

concluded that the present appeal is frivolous. Counsel sent Appellant a

copy of the Anders brief and petition to withdraw, as well as a letter, a copy

of which is attached to the petition to withdraw. In the letter, counsel

advised Appellant that she could represent herself or that she could retain

private counsel.

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We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that

in the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

Counsel’s brief is compliant with Santiago. It sets forth the

procedural history of this case and outlines pertinent case authority. We

thus conclude that the procedural and briefing requirements for withdrawal

have been met.

Counsel presents the following issues for our review:

I. Whether [Appellant] can challenge on direct appeal the validity of her guilty plea?

II. Whether [Appellant] can challenge on direct appeal the discretionary aspects of her sentence?

III. Whether [Appellant] can challenge on direct appeal the disposition of her Motion to Modify Sentence?

Appellant’s Brief at 7.

Appellant’s first issue discusses a challenge to the validity of her guilty

plea. For the following reasons, we conclude that a challenge to the validity

of her guilty plea is waived.

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In assessing challenges to the validity of a guilty plea, we are guided

by the following standard of review. “Settled Pennsylvania law makes clear

that by entering a guilty plea, the defendant waives [her] right to challenge

on direct appeal all nonjurisdictional defects except the legality of the

sentence and the validity of the plea.” Commonwealth v. Lincoln, 72

A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d

319 (Pa. 2014). Also, a defendant may challenge the discretionary aspects

of sentencing if the plea agreement contains no sentencing restrictions.

Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). “Our law

presumes that a defendant who enters a guilty plea was aware of what [she]

was doing. [She] bears the burden of proving otherwise.” Commonwealth

v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (citation omitted). “[A]

defendant has no absolute right to withdraw a guilty plea; rather, the

decision to grant such a motion lies within the sound discretion of the trial

court.” Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa. Super.

2002).

A defendant wishing to challenge the voluntariness of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either measure results in waiver. Historically, Pennsylvania courts adhere to this waiver principle because it is for the court which accepted the plea to consider and correct, in the first instance, any error which may have been committed.

Lincoln, 72 A.3d at 609-610 (Internal quotation marks and some citations

omitted).

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Our review of the record reveals that Appellant did not object to her

plea prior to or during the January 23, 2014 guilty plea and May 14, 2014

sentencing hearings. Although Appellant did file a timely post-sentence

motion on May 22, 2014, she simply sought to modify her sentence and did

not seek to withdraw her plea despite being informed of her right to do so.

N.T., 5/14/14, at 6; Motion to Modify Sentence, 5/22/14, at 1-2. As noted

above, in order to preserve an issue related to the validity of a guilty plea,

an appellant must either object during the colloquy or otherwise raise the

issue at the guilty plea hearing, the sentencing hearing, or through a post-

sentence motion. Lincoln. See also Commonwealth v. Tareila, 895

A.2d 1266, 1270 n.3 (Pa. Super. 2006) (explaining that in order to preserve

an issue related to the guilty plea, an appellant must either object at the

sentence colloquy or otherwise raise the issue at the sentencing hearing or

through a post-sentence motion); Pa.R.A.P. 302(a) (stating that “[i]ssues

not raised in the lower court are waived and cannot be raised for the first

time on appeal”). Accordingly, Appellant has waived any challenge to the

validity of her guilty plea.

Appellant’s second issue discusses a challenge to the discretionary

aspects of her sentence. Appellant waived any challenges to the

discretionary aspects of her sentence by failing to raise such issues before

the trial court.

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It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be

considered to be a petition for allowance of appeal. Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

We 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to

modify the sentence imposed. Id. (citing Commonwealth v. Mann, 820

A.2d 788 (Pa. Super. 2003)).

In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d

790 (Pa. Super. 1995), wherein this Court observed that, although

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Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions

as optional, the rule expressly provides that only issues raised in the trial

court will be deemed preserved for appellate review. Applying this principle,

the Reeves Court held that an objection to a discretionary aspect of a

sentence is waived if not raised in a post-sentence motion or during the

sentencing proceedings. See also Commonwealth v. Parker, 847 A.2d

745 (Pa. Super. 2004) (holding challenge to discretionary aspect of sentence

was waived because appellant did not object at sentencing hearing or file

post-sentence motion); Commonwealth v. Petaccio, 764 A.2d 582 (Pa.

Super. 2000) (same).

Initially, we conclude that the first requirement of the four-part test is

met because Appellant brought this direct appeal in a timely manner

following the entry on the docket of the amended sentence. However, our

review of the record reflects that Appellant did not meet the second

requirement because she did not raise a challenge to the discretionary

aspects of her sentence in a post-sentence motion or at the time of

sentencing. Specifically, in her post-sentence motion, Appellant only sought

to have the trial court consider her RRRI eligibility, which the trial court

failed to do at the time of the sentencing hearing. Motion to Modify

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Sentence, 5/22/14, at 1-2.2 To the extent that Appellant now presents

another issue attempting to raise a challenge to the discretionary aspect of

sentencing, such a claim is waived due to Appellant’s failure to present it in

her post-sentence motion. Reeves. Therefore, because Appellant did not

raise an issue challenging the discretionary aspect of sentencing in her post-

sentence motion, it is waived and we are precluded from addressing the

merits of such an issue on appeal.

Appellant’s third issue discusses whether Appellant may challenge on

direct appeal the disposition of her motion to modify sentence. Because the

trial court granted Appellant relief on her post-sentence motion, we conclude

that this issue lacks merit.

As previously mentioned, at the time of Appellant’s guilty plea and

sentencing, the trial court did not make a determination regarding

Appellant’s eligibility for an RRRI sentence. Subsequently, Appellant filed a

timely post-sentence motion to modify sentence, which requested the trial

court to consider Appellant’s RRRI eligibility. Thereafter, the trial court

entered an amended order of sentence, which sentenced Appellant to a term

of incarceration of twelve to thirty-six months for the conviction of DUI,

highest rate of alcohol. In addition, the trial court set Appellant’s RRRI ____________________________________________

2 A challenge to the sentencing court’s failure to determine whether an appellant is RRRI-eligible is “a nonwaivable challenge to the legality of her sentence.” Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).

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minimum sentence at nine months. The nine-month sentence is in

compliance with section 4505 of the RRRI statute, which provides, in

pertinent part, as follows:

§ 4505. Sentencing.

***

(c) Recidivism risk reduction incentive minimum sentence. -- If the court determines that the defendant is an eligible offender or the prosecuting attorney has waived the eligibility requirements under subsection (b), the court shall enter a sentencing order that does all of the following:

(2) Imposes the recidivism risk reduction incentive minimum sentence. The recidivism risk reduction incentive minimum shall be equal to three- fourths of the minimum sentence imposed when the minimum sentence is three years or less.

61 Pa.C.S. § 4505(c)(2) (emphasis added).

Appellant’s nine-month RRRI sentence imposed by the trial court in the

amended order of sentence is three-fourths of Appellant’s minimum

sentence of twelve months. Thus, the trial court did impose a sentence in

compliance with 61 Pa.C.S. § 4505(c)(2). Hence, there is no merit to a

possible claim by Appellant that the trial court erred in granting her motion

to modify sentence and in fashioning her RRRI minimum sentence.

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We also have independently reviewed the record in order to determine

whether there are any non-frivolous issues present in this case that

Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.

Super. 2014). Having concluded that there are no meritorious issues, we

grant Appellant’s counsel permission to withdraw, and affirm the judgment

of sentence.

Petition of counsel to withdraw is granted. Judgment of sentence

affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/30/2015

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