Com. v. Youmans, K.

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2023
• Docket: 2748 EDA 2022
• Status: Unpublished

Opinion

J-S07008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAITLYN MICHELLE YOUMANS : : Appellant : No. 2748 EDA 2022

Appeal from the Judgment of Sentence Entered May 23, 2022 In the Court of Common Pleas of Carbon County Criminal Division at No(s): CP-13-CR-0000946-2020

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 27, 2023

Appellant, Kaitlyn Michelle Youmans, appeals from the May 23, 2022

Judgment of Sentence of 12 months of supervised probation and restitution

entered in the Carbon County Court of Common Pleas following her guilty plea

to Disorderly Conduct.1 Appellant’s counsel, Eric T. Wiltrout, Esquire, has filed

a Petition to Withdraw as Counsel and an Anders2 Brief. Upon review, we

conclude that one of the four issues raised in the Anders Brief has arguable

merit. Thus, we deny counsel’s Petition to Withdraw and direct counsel to file

an advocate’s brief limited to Appellant’s sentence of restitution.

____________________________________________

1 18 Pa.C.S. § 5503(a)(4).

2 Anders v. California, 386 U.S. 738 (1967). J-S07008-23

The relevant facts and procedural history are as follows. Appellant and

Deric Tomasovich are the parents of one child.3 Mr. Tomasovich has custody

of the child. On August 11, 2020, Appellant contacted the Pennsylvania State

Police in Lehighton, Carbon County, falsely asserting that she had a valid

custody order for the child and requesting that the police remove the child

from Mr. Tomasovich’s residence. Appellant also attempted to involuntarily

commit Mr. Tomasovich to a mental health facility in an effort to disrupt a

custody proceeding scheduled for the next day in the Carbon County Court of

Common Pleas. Following this incident, the Commonwealth charged Appellant

with Obstructing Administration of Law or Other Government Function,

Disorderly Conduct, and Harassment.

On May 23, 2022, Appellant appeared for a hearing to plead guilty to

Disorderly Conduct. At the hearing, the trial court confirmed that Appellant

had knowingly, intelligently, and voluntarily completed a guilty colloquy form.

The court also conducted an oral guilty plea colloquy and, satisfied that

Appellant was entering the plea knowingly, intelligently, and voluntarily, the

court accepted her plea. The Commonwealth informed the court that Mr.

Tomasovich sought $1,716 in restitution for lost wages. Appellant disputed

Mr. Tomasovich’s entitlement to restitution, stating as follows:

[N]ot for nothing I was married to Mr. Tomasovich for four years. He didn’t work in that entire almost four years we were married. He refused to pay child support when child was in my care because ____________________________________________

3At the time of the incident giving rise to the instant charges, the child was 20 months old.

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he claimed he was unemployed so now he is magically claiming he was fired from a job because of my actions. He didn’t have a steady work history to begin with. I was the sole financial provider.

N.T. Guilty Plea Hr’g, 5/23/22, at 7-8.

Because Appellant did not agree to the Commonwealth’s request for

restitution,4 the court informed Appellant that it could either schedule a

restitution hearing for another day and defer imposing sentence until after the

restitution hearing or impose her custodial and restitution sentences that day,

and she could file a post-sentence motion challenging the award of restitution.

Appellant consulted with her counsel, informed the court that she wished to

be sentenced that day, and stated “[i]f you want to file a post-trial motion,

Mr. Wiltrout, I’d appreciate that.” Id. at 9.

The court then sentenced Appellant to serve 12 months of probation to

run concurrently to a Schuylkill County sentence that she was already serving

and to pay $1,716 in restitution to Mr. Tomasovich. Appellant did not file a

post-sentence motion.

Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

On January 4, 2023, Attorney Wiltrout filed an Anders Brief indicating

Appellant wished to challenge the trial court’s jurisdiction, the voluntariness ____________________________________________

4 The trial court later characterized Appellant’s objection as a challenge to the amount of the restitution rather than to Mr. Tomasovich’s entitlement to it. N.T. Guilty Plea Hr’g, 5/23/22, at 8. It is clear from our review of the notes of testimony that Appellant’s initial objection was to the court’s authority to impose restitution in light of Appellant’s belief that Mr. Tomasovich was not entitled to it.

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of her plea, and the award of restitution. Appellant also claims that she is

immune from prosecution because she acted as Mr. Tomasovich’s power of

attorney and had the authority to commit Mr. Tomasovich to a mental health

facility. Attorney Wiltrout also filed a Petition to Withdraw as Counsel.5

A.

As a preliminary matter, we address appellate counsel’s request to

withdraw as counsel. “When presented with an Anders Brief, this Court may

not review the merits of the underlying issues without first passing on the

request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.

Super. 2010). In order for counsel to withdraw from an appeal pursuant to

Anders, our Supreme Court has determined that counsel must meet the

following requirements:

(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.

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

Counsel has complied with the mandated procedure for withdrawing as

counsel. Additionally, counsel confirms that he sent Appellant a copy of the ____________________________________________

5Appellant did not file a response to counsel’s Anders Brief or petition to withdraw.

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Anders Brief and petition to withdraw, as well as a letter explaining to

Appellant that he has the right to retain new counsel, proceed pro se, and to

raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748,

751 (Pa. Super. 2005) (describing notice requirements).

Because counsel has satisfied the above requirements, we will review

the issues raised in the Anders Brief to determine if they have arguable merit.

Subsequently, we must conduct “a full examination of the proceedings and

make an independent judgment as to whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5 (citation omitted). See also

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (noting Anders requires the reviewing court to “review ‘the case’ as

presented in the entire record with consideration first of issues raised by

counsel”).

B.

In her first issue, Appellant asserts that the trial court lacked jurisdiction

to sentence her because she committed the crime in Schuylkill County.

Anders Brief at 3. This issue is a challenge to venue, not jurisdiction. See

Commonwealth v. McPhail, 692 A.2d 139, 144 (Pa. 2007) (plurality)

(“[T]he place of trial, whether within or without the county where the alleged

crime occurred, is a matter of venue, not jurisdiction[.]”), superseded on other

grounds by 18 Pa.C.S. § 110(1)(ii).

Pennsylvania Rule of Criminal Procedure 130 sets forth the general rule

that all criminal proceedings shall be brought in the “magisterial district in

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which the offense is alleged to have occurred[.]” Pa.R.Crim.P. 130(A). A

defendant must raise a challenge to venue in an omnibus pre-trial motion, or

it is waived. See Pa.R.Crim.P. 578 (stating motion for change of venue should

be raised in omnibus pretrial motion at “earliest feasible” time); McPhail, 692

A.2d at 144 n.3 (explaining that a challenge to venue is waived if not properly

preserved). Because Appellant did not preserve this issue by raising it in an

omnibus pretrial motion it is waived. Accordingly, we agree with counsel that

it is frivolous. See Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super.

2016) (“An issue that is waived is frivolous.”); Commonwealth v. Kalichak,

943 A.2d 285, 291 (Pa. Super. 2008) (“Having been waived, pursuing this

matter on direct appeal is frivolous.”).

In her next issue, Appellant claims that she did not knowingly and

voluntarily plead guilty. Anders Brief at 4. The record belies her claim.

As described above, Appellant testified at the guilty plea hearing that

she reviewed her case with Attorney Wiltrout prior to the hearing, understood

and completed the guilty plea colloquy form of her own free will, and had an

opportunity to review the questions with Attorney Wiltrout. She also testified

that no one offered her anything in exchange for her plea or forced her to

enter into it. In addition, Appellant did not at any time file a motion to

withdraw her plea. See Commonwealth v. Lincoln, 72 A.3d 606, 609-10

(Pa. Super. 2013) (“A defendant wishing to challenge the voluntariness of a

guilty plea on direct appeal must either object during the plea colloquy or file

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a motion to withdraw the plea within ten days of sentencing. Failure to employ

either measure results in waiver.”) (citations omitted)).

In light of the foregoing, we agree with counsel that Appellant’s claim

that she did not knowingly and voluntarily plead guilty is frivolous.

Appellant next asserts that she was immune from criminal prosecution

because she acted as Mr. Tomasovich’s power of attorney and, thus, had the

authority to involuntarily commit him to a mental health facility. Anders Brief

at 5. The record does not contain any evidence to support this claim. We,

thus, agree with counsel that this issue is likewise frivolous.

In her final issue, Appellant asserts that she is “not responsible for the

restitution granted to Deric Tomasovich.” Id. at 5. In the Anders Brief,

Attorney Wiltrout characterizes this issue as a challenge to the discretionary

aspects of Appellant’s sentence. He represents that he attempted to consult

with Appellant via telephone at SCI-Muncy regarding filing a post-sentence

motion to preserve this issue for appeal but that she refused to come to the

phone to answer his call. Therefore, Attorney Wiltrout concludes that this

issue is frivolous because Appellant did not preserve it for appeal. We

disagree.

We have recognized that, “in the context of criminal proceedings, an

order of restitution is not simply an award of damages, but, rather, a

sentence.” Commonwealth v. Holmes, 155 A.3d 69, 78 (Pa. Super. 2017)

(citation omitted).

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“An appeal from an order of restitution based upon a claim that it is

unsupported by the record challenges the legality, rather than the

discretionary aspects of sentence; as such it is a non-waivable matter.”

Commonwealth v. Rotola,173 A.3d 831, 834 (Pa. Super. 2017). See also

In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that when a court’s

authority to impose restitution is challenged, it pertains to the legality of a

sentence and as such cannot be waived).

As explained above, at the guilty plea hearing Appellant disputed the

appropriateness of an award of restitution in light of Mr. Tomasovich’s alleged

inconsistent work history and the speciousness of his lost wages claim. Based

on the above case law, Appellant challenges the legality of her sentence.

Because an appellant cannot waive a timely-filed legality of sentence claim,

we disagree with counsel that Appellant has waived this issue. Moreover, we

conclude that her challenge has arguable merit, warranting counsel’s

advocacy.

Therefore, we direct counsel to conduct an appropriate review of the

record and file in this Court an advocate’s brief limited to this issue on

Appellant’s behalf within sixty days. The Commonwealth may respond within

thirty days of counsel’s brief.

C.

Petition to Withdraw denied. Anders Brief stricken. Panel jurisdiction

retained.

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