Com. v. Wright, M.

• Court: Superior Court of Pennsylvania
• Decided: April 7, 2021
• Docket: 801 MDA 2020
• Status: Unpublished

Opinion

J-S51007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARIANNE LARA WRIGHT : : Appellant : No. 801 MDA 2020

Appeal from the Judgment of Sentence Entered May 5, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000095-2020

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 7, 2021

Marianne Lara Wright (Appellant) appeals from the judgment of

sentence imposed after she pled guilty to driving under the influence (DUI) of

alcohol.1 Additionally, Appellant’s counsel (Counsel) seeks to withdraw from

representation pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review,

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

sentence.

On November 19, 2019, Exeter Township Police Officer Daniel Fox

stopped Appellant for “traveling over the fog line with both front and rear right

tires” and “weaving back and forth.” Affidavit of Probable Cause, 11/20/19,

at 5. The officer immediately “observed Appellant’s speech to be slurred and

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1 75 Pa.C.S.A. § 3802(a)(1). J-S51007-20

also observed her eyes to be red and glassy.” Id. Appellant’s passenger “also

appeared under the influence and did later confirm that he was drinking

earlier.” Id. As the officer spoke to Appellant, “her speech continued to be

slurred and she continued to act in a lethargic manner . . . as [he] spoke to

her, she retrieved a piece of gum out of her purse and placed it into her

mouth.” Id. Nonetheless, Officer Fox “smelled a strong odor of alcoholic

beverage coming from her breath as she spoke.” Id. The officer arrested

Appellant and transported her to Berks County Central Processing, where she

refused to take a certified breath test. Id. at 6. Appellant was charged with

DUI and disregarding a traffic lane.2

On May 5, 2020, Appellant pled guilty to DUI and the trial court

sentenced her to 72 hours to 6 months of incarceration. The court also

ordered Appellant pay a mandatory $1,000 fine, as well as the costs of

prosecution.

Appellant filed a timely post-sentence motion which the trial court

denied on May 27, 2020. On June 2, 2020, Appellant filed this appeal. Both

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

On September 5, 2020, Counsel filed an Anders brief, in which Counsel

avers that Appellant’s appeal is frivolous and requests permission to withdraw

2 75 Pa.C.S.A. § 3309(1); the trial court later dismissed the traffic charge.

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from representation. Appellant did not file a response to Counsel’s Anders

brief or raise any additional claims.

We begin with the mandates that counsel seeking to withdraw pursuant

to Anders must follow. These mandates and the protection they provide arise

because a criminal defendant has a constitutional right to a direct appeal and

to counsel on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898

(Pa. Super. 2007). We have summarized:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf).

Id. (citations omitted).

Additionally, there are requirements as to the content of an Anders

brief:

[T]he Anders brief that accompanies court-appointed counsel’s petition to withdraw … 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

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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, 978 A.2d at 361. When faced with a purported Anders brief, we

may not review the merits of the underlying issue without first deciding

whether counsel has properly requested permission to withdraw.

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation

omitted). If counsel has satisfied the mandates of Anders, it is this Court’s

duty to review the trial court proceedings to determine whether there are any

non-frivolous issues that the appellant could raise on appeal.

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en

banc).

Our review reveals that Counsel has complied with Anders. Counsel

filed a petition with this Court stating that after reviewing the record, she finds

the appeal to be wholly frivolous. Petition to Withdraw as Counsel, 9/5/20, ¶

6. In conformance with Santiago, Counsel’s brief includes a summary of the

relevant case history, and discusses the issues she believes might arguably

support Appellant’s appeal. See Anders Brief at 7-13. Counsel sets forth her

conclusion that the appeal is frivolous and includes citation to relevant

authority. Id. Finally, Counsel has attached to her petition to withdraw the

letter she sent to Appellant, which enclosed Counsel’s petition and Anders

brief. Counsel’s letter advised Appellant of her right to proceed pro se or with

private counsel, and raise any additional issues she deems worthy of this

Court’s consideration. Thus, we proceed to Appellant’s substantive issue:

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Whether the sentencing court erred in denying Appellant’s post- sentence motion to modify sentence to waive all costs and fines where the sentencing court did not determine Appellant’s ability to pay fines and costs?

Anders Brief at 6.

Appellant argues that the trial court erred by ordering her to pay the

$1,000 fine and costs without conducting a hearing to determine her ability to

pay. See id. at 9-13. This argument challenges the legality of Appellant’s

sentence. See Commonwealth v. Garzone, 993 A.2d 306, 316 (Pa. Super.

2010). “Our standard of review over such questions is de novo and our scope

of review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.

Super. 2014) (citation omitted).

The Rules of Criminal Procedure provide that a court “shall not commit

[a] defendant to prison for failure to pay a fine or costs unless it appears after

hearing that the defendant is financially able to pay the fine or costs.”

Pa.R.Crim.P. 706(A). However, we have clarified:

[A] defendant is not entitled to a pre-sentencing hearing on his or her ability to pay costs. While Rule 706 permits a defendant to demonstrate financial inability either after a default hearing or when costs are initially ordered to be paid in installments, the Rule only requires such a hearing prior to any order directing incarceration for failure to pay the ordered costs. . . . [I]t is not constitutionally necessary to have a determination of the defendant’s ability to pay prior to or at the judgment of sentence. We [therefore] conclude that [a] . . . trial court only [must] make a determination of an indigent defendant’s ability to render payment before he/she is committed.

Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013) (citation

omitted, emphasis added).

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Moreover, a defendant’s ability to pay is not a factor when fines and

costs are mandatory. See Commonwealth v. Gipple, 613 A.2d 600, 601

n.1 (Pa. Super. 1992). Here, Appellant pled guilty to DUI, 75 Pa.C.S.A. §

3802(a)(1), and the trial court was required to impose the $1,000 fine and

costs of prosecution. See 75 Pa.C.S.A. § 3804(c)(1)(ii) (mandatory minimum

fine of $1,000 for a first-offense DUI where a breath test was refused); 42

Pa.C.S.A. § 9721(c.1) (mandatory imposition of costs).

Consistent with the forgoing, the trial court properly concluded that

“because [] Appellant was committed to serve seventy-two consecutive hours

of incarceration pursuant to Section 3804 of the Motor Vehicle Code and not

because she failed to pay any fines or costs, a hearing to determine her ability

to pay fines or costs was not required.” Trial Court Opinion, 7/14/20, at 4.

As there is no merit to Appellant’s argument, we agree with Counsel’s

conclusion that Appellant’s claim is frivolous. See Anders Brief at 12 (“In this

matter, it was mandatory for the court to both impose the $1,000.00 fine and

the court costs pursuant to the respective statutes. Appellant was not

required to have a hearing on her ability to pay as she was not going to be

incarcerated for [failure to] pay.”).

Finally, our independent review reveals no other non-frivolous issues

Appellant could raise on appeal. See Dempster, 187 A.3d at 272. For all of

the above reasons, 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: 04/07/2021

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