Commonwealth v. Beitz, 1236 MDA 2021

279 A.3d 1246 (Table)

COMMONWEALTH of Pennsylvania

v.Richard Kevin BEITZ, Appellant

No. 1236 MDA 2021

Superior Court of Pennsylvania.

Filed: May 12, 2022

MEMORANDUM BY BOWES, J.:

Richard Kevin Beitz appeals nunc pro tunc from the judgment of sentence of one to four years of incarceration imposed following his nolo contendere plea to terroristic threats. Michael C. O'Donnell, Esquire has filed an application to withdraw and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We affirm Appellant's sentence and grant counsel's application to withdraw.

On August 10, 2016, Appellant, as plaintiff, attended a civil hearing in the Union County Courthouse before Magisterial District Court Judge Leo S. Armbruster. See N.T. Plea Hearing, 12/20/17, at 8. Also present was the defendant, Craig Bennet, and defense witnesses Trudy Laidacker, April Cole, and Kathleen Kennedy. See Affidavit of Probable Clause, 8/10/16, at 1. After Appellant made a comment about receiving assistance from his "big fat Jew lawyers" and became increasingly "unhinged," Judge Armbruster declared a recess so that he could secure the presence of a Sheriff's deputy. Appellant's Brief in Support of Defendant's Omnibus Motion, 5/30/17, at Exhibit A.

While Judge Armbruster was absent, Appellant turned his attention to the defendant and defense witnesses. First, Appellant placed the edge of his extended hand against the inside of his knee and proclaimed, "I have a fucking cock this fucking long and which one of you wants to suck my fucking cock?" N.T. Plea Hearing, 12/20/17, at 8. Appellant than asked Ms. Cole directly, "How about you April you fucking [w]hore? You want to suck it? I know where you live." Id .; see also Affidavit of Probable Cause, 8/10/16, at 1. This outburst prompted the defendant to leave the room to assist in the search for a deputy sheriff. Id . Meanwhile, Appellant turned in his chair, looked directly at Ms. Laidacker and stated, "I'm going to shove this cock inside of you and wipe that smile off your face." Id . Ms. Laidacker immediately exited the room where she met with Judge Armbruster and the defendant. They agreed that Ms. Laidacker would not reenter the courtroom since she was in fear for her safety.

Judge Armbruster returned to the courtroom and asked Appellant about what had transpired in his absence. See Brief in Support of Defendant's Omnibus Motion, 5/30/17, at Exhibit A. Appellant confirmed that he had made lewd statements to the female witnesses, explaining that "she was looking at my big cock so she must want it." Id . Appellant then repeated the earlier hand gesture, holding his hand down to his knee to describe the length of his penis. Id . Finally, Appellant turned to the defendant and stated: "I see what the fuck goes on here, you paid off the judge and now I am out my fucking rent and costs." Id . Judge Armbruster held Appellant in summary direct contempt of court for his lewd language and demeanor pursuant to 42 Pa.C.S. § 4137(a)(1). Thereafter, Appellant was also criminally charged with terroristic threats, harassment, disorderly conduct, and retaliation.

Appellant filed a pretrial motion raising "double jeopardy" concerns pursuant to United States and Pennsylvania Constitutions and arguing that the earlier contempt conviction barred a subsequent trial on different charges, since they stemmed from the same incident. See Brief in Support of Defendant's Omnibus Motion, 5/30/17, at unnumbered 2. The Commonwealth filed a brief arguing that Appellant's conviction for summary criminal contempt did not bar a subsequent prosecution for charges that arose from the same conduct. At the hearing, trial counsel and the prosecutor presented the court with legal precedent in support of their written arguments. After a brief recess so that the court could review the relevant precedent, the Court denied the motion, agreeing with the Commonwealth and finding that "the elements [of the offenses] are completely different." N.T. Pre-Trial Hearing, 9/28/17, at 12.

On December 20, 2017, Appellant entered a negotiated nolo contendere plea to terroristic threats. In exchange for Appellant's nolo plea, the Commonwealth nolle prossed the remaining charges. The negotiated plea called for a minimum sentence of one year but left the maximum term to the court's discretion. Appellant also retained the right to argue for a mitigated range sentence. The Court accepted the plea, and deferred sentencing so that a presentence investigation report ("PSI") could be prepared.

On June 11, 2018, Appellant appeared for sentencing at which he read a lengthy statement in which he requested a county sentence with work release due to his professional and family responsibilities. See N.T. Sentencing Hearing, 6/11/18, at 4-11. Appellant also detailed his rehabilitation efforts and apologized for his actions. Id . The sentencing court noted with displeasure that the offense had taken place in a courtroom, and that Appellant had an extensive criminal history that included lengthy stints in state prison. Id . at 17-18. The court also acknowledged the sentencing guidelines, which proffered a standard range sentence of twelve to eighteen months of incarceration, before issuing a bottom-of-the-standard-range sentence of one to four years of incarceration with ninety-four days of credit for time served. Id . at 18-19.

Appellant did not file a post-sentence motion. Instead, he pursued a timely notice of appeal and challenged the discretionary aspects of his sentence. Since he had not filed a post-sentence motion, this Court found his sole allegation of error waived and affirmed his judgment of sentence. See Commonwealth v. Beitz , 220 A.3d 632 (Pa.Super. 2019) (non-precedential decision). On January 7, 2020, our Supreme Court denied Appellant's petition for allowance of appeal. See Commonwealth v. Beitz , 222 A.3d 1131 (Pa. 2020).

Appellant filed a timely, counseled Post-Conviction Relief Act ("PCRA") petition alleging ineffective assistance of counsel due to his attorney's failure to file a post-sentence motion. In the petition, Appellant sought reinstatement of his post-sentence and direct appeal rights. The PCRA court held a hearing at which trial counsel testified that he knew Appellant wished to appeal his sentence, but that he did not file a post-sentence motion because he thought "it would be a waste of time." PCRA Hearing, 6/21/21, at 13. At the conclusion of the hearing, the PCRA court granted Appellant's petition and reinstated Appellant's post-sentence and direct appeal rights. Id . at 21.

Appellant filed a timely post-sentence motion challenging the discretionary aspects of his sentence. The court held a hearing, at which all parties acknowledged that Appellant's sentence would expire in six months. See N.T. Post-Sentence Motion Hearing, 9/22/21, at 4-12. The court denied the motion and the instant appeal followed. Thereafter, Appellant's counsel filed a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(c)(4) indicating that he intended to file an Anders brief. Counsel also raised two issues which Appellant wished to raise challenging the court's denial of his post-sentence motion and his pre-trial double jeopardy motion. The trial court submitted its Rule 1925(a) opinion, in which it only addressed the discretionary aspects of sentencing issue.

In this Court, counsel filed both an Anders brief and a petition to withdraw as counsel. Accordingly, the following principles guide our review of this matter:

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. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.

Commonwealth v. Wrecks , 931 A.2d 717, 720-21 (Pa.Super. 2007) (citations omitted). Our Supreme Court has clarified portions of the Anders procedure:

[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.

Santiago , supra at 361.

Based on our examination of counsel's petition to withdraw and Anders brief, we conclude that counsel has substantially complied with the technical requirements set forth above. As required by Santiago , counsel reviewed the case history, referred to two issues that arguably support this appeal, stated his conclusion that the appeal is frivolous, and cited to the certified record and...