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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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