J-S13016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES BAILEY
Appellant No. 757 WDA 2014
Appeal from the Judgment of Sentence April 17, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007997-2013
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 22, 2015
Appellant, James Bailey, appeals from the April 17, 2014 aggregate
judgment of sentence of three to six days’ imprisonment, which amounted to
time served, plus 60 days’ intermediate punishment of house arrest, a
$500.00 fine, and $500.00 in restitution, imposed after pleading guilty to
accidents involving damage to attended vehicle or property and driving while
operating privilege is suspended.1 Contemporaneous with this appeal,
Appellant’s counsel has filed with this Court a petition to withdraw, together
with an Anders2 brief, averring the appeal is frivolous. After careful review,
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1
75 Pa.C.S.A. §§ 3743(a) and 1543(b)(1), respectively.
2
Anders v. California, 386 U.S. 738 (1967).
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we deny counsel’s petition to withdraw, vacate Appellant’s judgment of
sentence, and remand for further proceedings.3
The trial court has recounted the brief procedural history of this case
as follows.
On [April 17, 2014], [Appellant] pled guilty to an
Accident with Unattended Vehicle charge and Driving
While Operating Privileges Suspended or Revoked ….
Th[e trial c]ourt sentenced [Appellant] at Count 1 to
3-6 days[’] incarceration, with credit for time served
between 1/10/14 and 1/13/14 and parole forthwith,
and no further penalty. At Count 2, [Appellant] was
sentenced to sixty (60) days of restrictive
intermediate punishment, with releases for work,
medical, education and religious purposes as may be
applicable, and imposed the mandatory $500[.00]
fine and summary court costs. It must be noted that
there was a mandatory minimum period of
incarceration of 60 days associated with Count 2.
[No post-sentence motions were filed].
[Appellant] was to begin the house arrest
portion of his sentence on May 12, 2014. On May 9,
2014, defense counsel filed the within appeal, as well
as an Application for Stay of Sentence, Fines, and
Fees Pending Appeal. Th[e trial c]ourt granted the
motion on May 14, 2014 and issued an Order
directing [Appellant] to file a Concise Statement of
Matters Complained of on Appeal by June 4, 2014.
On June 4, 2014, defense counsel filed a Petition for
Extension of Time to File Concise Statement of Errors
Complained of on Appeal. That petition was granted
by th[e trial c]ourt on June 11, 2014, and
[Appellant] was granted an extension to file his
Concise Statement by July 11, 2014.
Trial Court Opinion, 9/16/14, at 1-2.
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3
The Commonwealth has elected not to file a brief in this matter.
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On July 11, 2014, counsel filed a Statement of Intent to file an
Anders/McClendon brief in accordance with Pennsylvania Rule of Appellate
Procedure 1925(c)(4) which states, “[i]n a criminal case, counsel may file of
record and serve on the judge a statement of intent to file an
Anders/McClendon brief in lieu of filing a Statement.” Thereafter, on
September 16, 2014, the trial court filed its Rule 1925(a) opinion asserting
Appellant has waived all issues for failing to file a Rule 1925(b) statement.
However, as set forth above, counsel’s statement of intent to file an
Anders/McClendon brief satisfies the mandates of Rule 1925. Accordingly,
we may address the merits of the issues raised in counsel’s Anders brief.4
On appeal, Appellant raises the following issue for our review.
Whether the [trial] court imposed an illegal sentence
at count 2 [75 Pa.C.S. § 1543(b)] in sentencing
[Appellant] to 60 days’ intermediate punishment, a
$500.00 fine, and $500.00 in restitution?
Anders Brief at 5.
“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) (citation omitted). Additionally, we review counsel’s Anders brief for
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4
Additionally, we note that on December 1, 2014, counsel filed a motion to
withdraw pursuant to Anders. On that same date, counsel sent a copy of
the Anders brief to Appellant along with a letter advising Appellant of his
right to retain new counsel or proceed pro se. Appellant did not file a reply.
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compliance with the requirements set forth by our Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold 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.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005) and its progeny, counsel must comply with the following obligations to
his client.
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, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once counsel has satisfied the
above requirements, it is then this Court’s duty to conduct its own review of
the trial court’s proceedings and render an independent judgment as to
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whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Instantly, we are satisfied that counsel has complied with the technical
requirements of Anders and Santiago. First, counsel has provided a
procedural and factual summary of the case with references to the record.
Anders Brief at 6-9. Second, counsel advances relevant portions of the
record that arguably support Appellant’s claims on appeal. Id. at 12-14.
Third, counsel concluded Appellant’s appeal is frivolous as “each aspect of
the [trial c]ourt’s sentence is legal and undersigned counsel is unable to
raise any non-frivolous arguments to the contrary.” Id. at 14. Lastly,
counsel has complied with the requirements set forth in Millisock, supra.
As a result, we proceed with our independent review of the record and the
issues presented on Appellant’s behalf to ascertain if the appeal is wholly
frivolous.
Instantly, Appellant’s counsel addresses the legality of Appellant’s
sentence noting that “Pennsylvania law makes clear that by entering a guilty
plea, the defendant waives his right to challenge on direct appeal all
nonjurisdictional defects except the legality of the sentence and the validity
of the plea.” Anders Brief at 11, citing Commonwealth v. Lincoln, 72
A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d
319 (Pa. 2014). As Appellant failed to object to his guilty plea or to file a
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motion to withdraw it, any challenge to the validity of Appellant’s plea is
waived. Id.; see also generally Pa.R.A.P. 302(a). Accordingly, the only
issue Appellant can raise is the legality of his sentence. “A challenge to the
legality of a sentence … may be entertained as long as the reviewing court
has jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8
(Pa. Super. 2011) (citation omitted). It is also well-established that “[i]f no
statutory authorization exists for a particular sentence, that sentence is
illegal and subject to correction.” Commonwealth v. Rivera, 95 A.3d 913,
915 (Pa. Super. 2014) (citation omitted). “An illegal sentence must be
vacated.” Id. “Issues relating to the legality of a sentence are questions of
law[.] … Our standard of review over such questions is de novo and our
scope of review is plenary.” Commonwealth v. Hawkins, 45 A.3d 1123,
1130 (Pa. Super. 2012) (citation omitted), appeal denied, 53 A.3d 756 (Pa.
2012).
Appellant was sentenced to 60 days’ intermediate punishment of
house arrest, a $500.00 fine, and $500.00 in restitution after pleading guilty
to driving while operating privilege is suspended or revoked, in accordance
with the following statute.
§ 1543. Driving while operating privilege is
suspended or revoked
…
(b) Certain offenses.--
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(1) A person who drives a motor vehicle on a
highway or trafficway of this Commonwealth at
a time when the person’s operating privilege is
suspended or revoked as a condition of
acceptance of Accelerated Rehabilitative
Disposition for a violation of section 3802
(relating to driving under influence of alcohol
or controlled substance) or the former section
3731, because of a violation of section
1547(b)(1) (relating to suspension for refusal)
or 3802 or former section 3731 or is
suspended under section 1581 (relating to
Driver’s License Compact) for an offense
substantially similar to a violation of section
3802 or former section 3731 shall, upon
conviction, be guilty of a summary offense
and shall be sentenced to pay a fine of
$500 and to undergo imprisonment for a
period of not less than 60 days nor more
than 90 days.
75 Pa.C.S.A. § 1543(b)(1) (emphasis added). Accordingly, there is statutory
support for the length of Appellant’s sentence and the fine imposed.5
Further, the trial court did not err in ordering Appellant to pay $500.00 in
restitution to the victim for the damage to her vehicle. N.T., 4/17/14, at 9;
see also 42 Pa.C.S.A. § 9721(c) (stating that the trial court “shall order the
defendant to compensate the victim of his criminal conduct for the damage
or injury that he sustained[]”). However, our inquiry does not end here.
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5
We note that although this is a mandatory minimum sentence, it is not one
based on judicial fact-finding, but rather is required by the fact of conviction.
Therefore, this statute is not affected by Alleyne v. United States, 133 S.
Ct. 2151 (2013) or Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc).
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Generally, trial courts are prohibited from converting a sentence of
incarceration to intermediate punishment when a mandatory minimum
sentence is at issue. 42 Pa.C.S.A. § 9721(a.1). However, a sentence of
intermediate punishment may be imposed in place of imprisonment only if
the appellant has undergone a drug and alcohol assessment pursuant to 75
Pa.C.S.A. § 3814. See 42 Pa.C.S.A. § 9763(c)(1) (stating “[a]ny person
receiving a penalty imposed pursuant to 75 Pa.C.S. § 1543(b) … may only
be sentenced to county intermediate punishment after undergoing an
assessment under 75 Pa.C.S. § 3814[]”). Instantly, the record is devoid of
any evidence of Appellant being ordered to undergo such an assessment.
Accordingly, the trial court’s sentence of house arrest is an illegal sentence
which must be vacated. See Commonwealth v. Arest, 734 A.2d 910, 913
(Pa. Super. 1999) (en banc) (concluding, under a prior version of Section
9763, that the trial court imposed an illegal sentence of intermediate
punishment house arrest without ordering drug and alcohol treatment);
Rivera, supra. Upon remand, the trial court shall either correct the
sentence in accordance with Section 1543(b) or order an assessment in
accordance with Section 9763(c)(1), in order to impose a sentence of
intermediate punishment.
Therefore, for the reasons discussed above, our independent review of
the record leads us to conclude that Appellant’s appeal is not wholly
frivolous. Accordingly, we deny counsel’s petition to withdraw, vacate
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Appellant’s judgment of sentence, and remand for proceedings, consistent
with this memorandum.
Judgment of sentence vacated. Case remanded. Petition to withdraw
as counsel denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2015
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