J-S01013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JADE BURNITSKIE :
:
Appellant : No. 482 MDA 2021
Appeal from the Judgment of Sentence Entered March 23, 2021
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000419-2020
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: MARCH 24, 2022
Jade Burnitskie appealed from the judgment of sentence of one year of
probation imposed after she pled guilty to one count of neglect of animals. In
this Court, Donna M. DeVita, Esquire, filed an application to withdraw as
Appellant’s counsel and brief pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), stating
as the sole issue that arguably supported the appeal that Appellant’s sentence
was harsh and unreasonable. While we agreed with counsel that an appeal
raising the waived claim regarding the discretionary aspects of Appellant’s
sentence would be wholly frivolous, our independent review of the certified
record revealed an issue that counsel overlooked, namely whether the trial
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01013-22
court abused its discretion in denying Appellant’s presentence motion to
withdraw her guilty plea. We therefore denied counsel’s application to
withdraw and ordered additional briefing. Counsel filed a renewed application
to withdraw and Anders brief explaining counsel’s belief that there would be
no merit in pursuing an appellate challenge to the trial court’s refusal to allow
Appellant to withdraw her plea. For the reasons that follow, we affirm
Appellant’s judgment of sentence and grant counsel’s application to withdraw.
As we detailed the history of this case in our prior memorandum, there
is no need to do so again here. Briefly, Appellant’s plea and conviction were
based upon her admission that she kept a dog “in unsanitary conditions in an
unheated vacant building without access to food and water . . . in spite of the
dog’s observable body condition which was evidently underweight and missing
hair[.]” N.T. Guilty Plea, 9/9/20, at 4. In exchange for pleading guilty to
neglect, the Commonwealth withdrew the initial charges, including a felony
count of aggravated cruelty to animals. Appellant’s subsequent motion to
withdraw the plea alleged that she was innocent of the offense and that “her
plea was involuntarily entered as it was made under duress based upon time
constraints and insufficient access to discuss the case with . . . counsel due to
COVID-19 restrictions.” Motion to Withdraw Guilty Plea, 11/30/20, at ¶¶ 16-
17. The Commonwealth responded to her motion with photographic evidence
of the condition of the residence and the dog which corroborated the
witnesses’ statements included in the affidavit of probable cause. The trial
-2-
J-S01013-22
court denied the motion after a hearing and imposed a probationary sentence,
and this timely appeal followed.
The following law is pertinent to our review of counsel’s renewed
application to withdraw and Anders brief:
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). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has further detailed counsel’s duties
as follows:
[I]n 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.
-3-
J-S01013-22
Santiago, supra at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has again substantially complied with
the above requirements.1 Therefore, we proceed “‘to make a full examination
of the proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 113 A.3d
1246, 1249 (Pa. Super. 2015) (quoting Santiago, supra at 354 n.5).
As indicated above, the issue that arguably supports this appeal that
was not previously addressed by this Court is whether the trial court abused
its discretion in denying Appellant’s presentence motion to withdraw her guilty
plea. We consider counsel’s analysis of the issue mindful of the following
principles.
Pursuant to the Rules of Criminal Procedure: “At any time before the
imposition of sentence, the court may, in its discretion, permit, upon motion
of the defendant, or direct, sua sponte, the withdrawal of a plea of guilty or
nolo contendere and the substitution of a plea of not guilty.” Pa.R.Crim.P.
591(A).
When a trial court comes to a conclusion through the
exercise of its discretion, there is a heavy burden on the appellant
to show that this discretion has been abused. An appellant cannot
meet this burden by simply persuading an appellate court that it
may have reached a different conclusion than that reached by the
trial court; rather, to overcome this heavy burden, the appellant
must demonstrate that the trial court actually abused its
discretionary power. An abuse of discretion will not be found
____________________________________________
1 Appellant again did not file a response to counsel’s petition.
-4-
J-S01013-22
based on a mere error of judgment, but rather exists where the
trial court has reached a conclusion which overrides or misapplies
the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
Absent an abuse of that discretion, an appellate court should not
disturb a trial court’s ruling.
Commonwealth v. Norton, 201 A.3d 112, 120 (Pa. 2019) (cleaned up).
In the context of a presentence request for withdrawal, the trial court’s
“discretion is to be administered liberally in favor of the accused; and any
demonstration by a defendant of a fair-and-just reason will suffice to support
a grant, unless withdrawal would work substantial prejudice to the
Commonwealth.” Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292
(Pa. 2015). As this Court summarized:
[T]he determination of whether there is a “fair and just reason” to
permit the pre-sentence withdrawal request should be based on
the totality of the circumstances attendant at the time of the
request, including the timing of the assertion of innocence, the
statements made by the defendant in association with his
declaration of innocence, and the plausibility of the defendant’s
statements in light of the evidentiary proffer made by the
Commonwealth at the plea hearing.
Commonwealth v. Johnson-Daniels, 167 A.3d 17, 24 (Pa.Super. 2017).
The trial court in the instant case determined that “the totality of the
circumstances reflect that [Appellant’s] assertion” of innocence “was anything
but credible.” Order, 3/16/21, at n.1. The court noted that Appellant had
fully understood the questions posed to her at the plea hearing and voluntarily
decided to enter a knowing and intelligent plea. Id. The court found that
-5-
J-S01013-22
Appellant’s bare, incredible assertion of innocence was merely “a dilatory
tactic to delay sentencing[.]” Id.
Counsel indicates that Appellant believes that she is innocent and should
have been permitted to withdraw her plea because the Commonwealth’s
affidavit of probable cause indicates that food and water were found in the
house where the dog had been kept, albeit outside of the dog’s reach, and
includes a statement from a neighbor that Appellant went to the house twice
a day to walk the dog. See Anders brief at 15. Counsel further represents
that Appellant feels that she was unable to explain at the plea hearing that
she lacked funds to take the dog to the vet, and the poor condition of the dog
when found “was due to the fact that an intruder must have entered the
building and let the dog escape[.]” Id.
Counsel nonetheless opines that an appeal challenging the denial of her
motion to withdraw the plea would be wholly frivolous based upon the state
of the record and the applicable law. Specifically, counsel contends:
Upon review of the record, including the extensive
information contained in Appellant’s written guilty plea colloquy,
the Commonwealth’s evidence supporting the M-3 offense to
which Appellant pled guilty, the affiant’s direct observation of the
dog’s condition upon discovery, the condition of the house where
he was found, and the recitation of the medical condition of the
dog as set forth in the affidavit of probable cause, all of which trial
counsel represented was reviewed with Appellant prior to her plea,
appellate counsel cannot argue that she did not have an
opportunity to review the Commonwealth’s evidence. Counsel
understands that given the record of the instant case, it cannot be
argued that the trial court abused its discretion when it denied her
motion to withdraw her guilty plea. While it is true that Appellant
did not have an opportunity to submit evidence on her own behalf,
-6-
J-S01013-22
both the written guilty plea colloquy and the trial court’s on the
record guilty plea colloquy clearly demonstrated that she was
clearly advised her of what rights she was giving up, including her
right to go to trial.
“A guilty plea is not a ceremony of innocence; it is an
occasion when one offers a confession of guilt. The defendant is
before the court to acknowledge facts that he is instructed
constitute a crime. He is then to voluntarily say what he knows
occurred, whether the Commonwealth would prove them or not,
and that he will accept their legal meaning and their legal
consequence.” Commonwealth v. Anthony, [475 A.2d 1303,
1307-08 (Pa. 1984)]. A criminal defendant who elects to plead
guilty has a duty to answer questions truthfully. Commonwealth
v. Mitchell, 465 A.2d 1284, 1286 (Pa.Super. 1983).
....
Appellate counsel understands that Appellant was clearly
advised of what right she was giving up when she pled guilty.
Counsel recognizes that the trial court neither abuse[d] its
discretion nor erred in its judgement of Appellant’s credibility
when it denied her request to withdraw her guilty plea.
Appellate counsel appreciates that an appellate review
involving the trial court’s findings of fact and credibility
determinations, are binding on the reviewing court if they find
support in the record. The trial court specifically found that
Appellant was not credible since the totality of the circumstances
questioned her assertion of innocence. Consequently, given the
fact of the present case and the applicable law, appellate counsel
is unable to assert that the trial court abused its discretion when
it denied Appellant’s motion to withdraw guilty plea.
Anders brief at 16-17 (cleaned up).
We find no fault in counsel’s assessment. At the time Appellant entered
her plea of guilt, she plainly was aware of the facts upon which she later based
her assertion of innocence. Yet she indicated her desire to surrender her
“absolute right” to proceed to trial and admitted that the facts established her
-7-
J-S01013-22
guilt of neglect, in exchange for the Commonwealth’s dismissal of the more
serious charge of aggravated cruelty. See Written Guilty Plea Colloquy,
9/9/20, at 4; N.T. Guilty Plea, 9/9/20, at 3-4. The trial court acted within its
discretion in rejecting her bare assertion of innocence as an incredible dilatory
tactic rather than a fair and just reason to withdraw the plea. See Johnson-
Daniels, supra at 24. Accordingly, a challenge to the trial court’s denial of
Appellant’s motion to withdraw her guilty plea lacks merit.
Additionally, our “simple review of the record to ascertain if there
appear[s] on its face to be arguably meritorious issues that counsel,
intentionally or not, missed or misstated[,]” has revealed no further issues
that counsel failed to address.2 Commonwealth v. Dempster, 187 A.3d
266, 272 (Pa.Super. 2018) (en banc). Therefore, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
Renewed application of Donna M. DeVita, Esquire, to withdraw as
counsel is granted. Judgment of sentence affirmed.
____________________________________________
2 We have conducted our review mindful of the fact that “upon entry of a
guilty plea, a defendant waives all claims and defenses other than those
sounding in the jurisdiction of the court, the validity of the plea, and what has
been termed the ‘legality’ of the sentence imposed.” Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).
-8-
J-S01013-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2022
-9-