J-S07025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AL MUMINY DIAZ
Appellant No. 55 MDA 2014
Appeal from the Judgment of Sentence December 3, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000184-2013
BEFORE: BENDER, P.J.E., OLSON and OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 23, 2015
Appellant, Al Muminy Diaz, appeals from the judgment of sentence
entered on December 3, 2013, following his jury trial convictions of four
counts of simple possession of a controlled substance and one count each of
possession with the intent to deliver (PWID) and possession of drug
paraphernalia. On appeal, appointed counsel filed a brief that resembled a
hybrid of an advocate’s brief and a brief pursuant to Anders v. California,
386 U.S. 738 (1967). This Court directed appellate counsel, in two separate
orders, to file either an advocate’s brief or a petition for leave to withdraw
and an accompanying Anders brief. Counsel, however, filed a petition for
leave to withdraw as counsel with this Court, relied upon her earlier filed
hybrid brief and sent Appellant a letter erroneously stating this “Court
considered the entire brief that [she] filed to be one under Anders.”
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Anders Letter, 5/11/2015, at 1. For the reasons that follow, we affirm
Appellant’s convictions, but vacate his sentence and remand for
resentencing. We deny counsel’s motion to withdraw without prejudice for
the trial court’s consideration. See generally In the Interest of X.J., 105
A.3d 1 (Pa. Super. 2014).
We briefly summarize the facts and procedural history of this case as
follows. Pennsylvania State Police were conducting routine vehicle
registration checks of passing automobiles on Interstate 99 in Centre
County, Pennsylvania when they discovered that Appellant’s vehicle was
registered to a driver with a suspended license. After the police initiated a
traffic stop, an officer detected an odor of marijuana emanating from the
vehicle. Police executed a canine search of the exterior of the vehicle and
were alerted to the presence of narcotics. In a subsequent search executed
by warrant, police uncovered 12 bricks of heroin, 19 tablets of
methamphetamine, five oxycodone pills, a bag of marijuana, and drug
paraphernalia. Appellant was driving with a suspended license.
On September 9, 2013, the jury found Appellant guilty of the
aforementioned crimes. 1 In addition, the jury specifically determined, on its
verdict slip, the amount of heroin supporting the PWID charge weighed 12.4
grams. On October 10, 2013, the Commonwealth filed a notice of the
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1
The trial court also found Appellant guilty of the summary offense of
driving while operating privilege is suspended, 75 Pa.C.S.A. § 1543.
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applicability of a mandatory sentence under 18 Pa.C.S.A. § 7508(a)(7)(ii),
because the jury determined the weight of the heroin for delivery was
between ten and 50 grams. The trial court sentenced Appellant on
December 3, 2013. Pursuant to Section 7508(a)(7)(ii), the trial court
imposed a mandatory minimum sentence of five to ten years of
imprisonment for PWID. It further imposed consecutive sentences of six
months to one year of incarceration for each of Appellant’s convictions for
simple possession of marijuana, oxycodone, methamphetamine, and drug
paraphernalia. Appellant’s simple possession of heroin sentence merged
with his sentence for PWID. The trial court sentenced Appellant to a
concurrent term of 60 days of incarceration for the summary offense of
driving while operating privilege is suspended. In total, Appellant received
an aggregate sentence of seven to 14 years of imprisonment. This timely
appeal resulted.
On appeal, counsel for Appellant presents the following issues for
review that she deems frivolous under Anders:
I. Whether the trial court erred in allowing the trial to
proceed prior to the prosecution presenting
[Appellant] with all the discovery. In fact, the
prosecution still has not provided all the discovery
material to [Appellant].
II. Whether the trial court erred in allowing the jury trial
to proceed despite [Appellant’s] Rule 600 [rights]
being violated. Rule 600 [begins] to run on the date
on which the complaint is filed.
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III. Whether the trial court erred in disallowing counsel to
withdraw despite counsel submitting a proper[ly] filed
motion to withdraw[]that Appellant agreed to.
IV. Whether the trial court erred in denying Appellant’s
request for a mistrial. Upon [the Assistant District
Attorney’s] request to testify on the stand against []
Appellant in the presence of the jury, Appellant
requested a mistrial which was denied by the court.
V. Whether the trial court erred in excessively sentencing
[] Appellant to 7-14 years of imprisonment whereas
the minimum guidelines indicate 5 years as the
minimum.
VI. Whether the trial court erred in denying [] Appellant
credit for [the Recidivism Risk Reduction Incentive]
program as he was not involved in a crime of violence
nor has a history of crimes of violence.
VII. Whether the trial court erred in allowing trial to
proceed despite the arresting documents being filed
under an alias not known to [] Appellant.
VIII. Whether the trial court erred in allowing the trial to
take place in a venue that had no jurisdiction.
Although Appellant was arrested in Blair County,
authorities (prior to obtaining a search warrant) towed
Appellant’s car to Centre County.
IX. Whether the trial court erred in allowing trial to take
place despite authority’s probable cause affidavit
being made null and void.
Anders Brief at 7-9.
Before reviewing the merits of this appeal, however, this Court must
first determine whether counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
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To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “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.”
Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in
which counsel:
(1) provide[s] a summary of the procedural history and
facts, with citations to the record; (2) refer[s] to anything in
the record that counsel believes arguably supports the
appeal; (3) set[s] forth counsel’s conclusion that the appeal
is frivolous; and (4) state[s] 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.
Santiago, 978 A.2d at 361. Finally, counsel must furnish a copy of the
Anders brief to her client and advise the client “of [the client’s] right to
retain new counsel, proceed pro se or raise any additional points worthy of
this Court’s attention.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
Super. 2007). If counsel meets all of the above obligations, “it then
becomes the responsibility of the reviewing court to make a full examination
of the proceedings and make an independent judgment to decide whether
the appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5,
quoting Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981).
It is only when both the procedural and substantive requirements are
satisfied that counsel will be permitted to withdraw.
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In the case at bar, counsel has met all of the above procedural
obligations, although it took court orders for her to meet said obligations.2
We must, therefore, review the entire record and analyze whether this
appeal is, in fact, wholly frivolous.
Upon independent review, we conclude that all of Appellant’s claims,
except for his fifth issue as presented, are frivolous. The trial court correctly
determined that Appellant waived his first, fourth, and seventh issues on
appeal for failing to object contemporaneously at trial. See Pa.R.A.P. 302.
Regarding his second issue, there was no violation of Pa.R.Crim.P. 600
because the trial court granted Appellant’s motion for postponement
excluding 46 days from the computation of the 365 day requirement of Rule
600(A)(2)(a), as well as the 180 day requirement of Rule 600(B)(1).3 In his
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2
Appellant has not responded to counsel’s petition to withdraw.
3
Rule 600 provides, in pertinent part:
(A) Commencement of Trial; Time for Trial
* * *
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint
is filed against the defendant shall commence within
365 days from the date on which the complaint is
filed.
* * *
(B) Pretrial Incarceration
Except in cases in which the defendant is not entitled to
release on bail as provided by law, no defendant shall be
held in pretrial incarceration in excess of
(Footnote Continued Next Page)
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third issue, Appellant maintains that the trial court erred in denying
counsel’s request to withdraw. This issue lacks merit because “an appellant
cannot prevail on a preserved conflict of interest claim absent a showing of
actual prejudice” and must show “that trial counsel was burdened by an
‘actual’—rather than mere ‘potential’—conflict of interest” by demonstrating
“(1) counsel ‘actively represented conflicting interests’; and (2) those
conflicting interests ‘adversely affected his lawyer's performance.’”
Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa. 2012). Here,
Appellant did not allege an actual conflict of interest or show he was actually
prejudiced by counsel’s representation. In his sixth allegation of error,
Appellant avers that he was denied admission to the Recidivism Risk
Reduction Incentive (RRRI) program; however, this claim fails since
Appellant was ineligible because he had been convicted previously of
resisting arrest. See Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014)
(RRRI Act excludes from eligibility defendants with a history of violent
behavior which covers violent behaviors not otherwise specifically identified
in the Act's definition of “eligible offender”); see also 61 Pa.C.S.A. § 4503.
In his eighth issue, Appellant contends that the trial was held in a county
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(Footnote Continued)
(1) 180 days from the date on which the complaint is
filed[.]
Pa.R.Crim.P. 600.
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without jurisdiction; however, Appellant was arrested while driving in Centre
County, which is where the trial took place. See Commonwealth v.
Sestina, 546 A.2d 109, 112 (Pa. Super. 1988) (a court has no jurisdiction
over an offense unless the offense occurred within the county in which the
trial takes place.) Finally, Appellant asserts that the vehicular stop by police
was illegal because his license was not suspended. This claim is frivolous
because, at trial, the Commonwealth presented Appellant’s certified driving
record and the testimony of the arresting officer to prove that at the time of
the stop, Appellant’s license was suspended for driving under the influence.
We turn now to Appellant’s sentencing claim. Appellant contends that
the application of a mandatory minimum sentence under 18 Pa.C.S.A.
§ 7508, based upon the weight of the heroin recovered, was illegal. Anders
Brief at 19-20. We agree. In Commonwealth v. Fennell, 105 A.3d 13
(Pa. Super. 2014), our Court determined that 18 Pa.C.S.A. § 7508 is
unconstitutional regardless of whether the weight of the drugs was
determined beyond a reasonable doubt by a factfinder or even if the
defendant stipulated to the weight of the drugs at trial. The Fennell Court
determined that the fact-finding procedures of Section 7508 are not
severable from the remainder of the statute, and thus, the entire statute is
unconstitutional under Alleyne v. United States, 133 S. Ct. 2151 (2013),
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), and
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). Because
the trial court imposed a mandatory minimum term of imprisonment under
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18 Pa.C.S.A. § 7508, Appellant’s sentence was illegal. Having determined
that Appellant is not entitled to relief on the remaining claims, we affirm his
convictions, vacate his sentence, and remand for resentencing. As Appellant
is entitled to counsel upon remand, we deny counsel’s petition to withdraw
without prejudice. Upon remand, the trial court may consider counsel’s
request to withdraw and appoint new counsel as it deems fit.
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Petition to withdraw as counsel denied. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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