Commonwealth v. Dempster

187 A.3d 266

COMMONWEALTH of Pennsylvania, Appellee

v.Melissa R. DEMPSTER, Appellant

No. 28 EDA 2017

Superior Court of Pennsylvania.

Submitted December 12, 2017

Filed May 08, 2018

Melissa R. Dempster, appellant, pro se.

Katayoun M. Copeland, Assistant District Attorney, Vram Nedurian, Jr., Assistant District Attorney, John F.X. Reilly, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

OPINION BY DUBOW, J.:

Appellant, Melissa R. Dempster, appeals from the Judgment of Sentence entered following the revocation of her probation. On appeal, Appellant challenges the discretionary aspects of her sentence, arguing that, in imposing a term of one to two years' imprisonment, the violation of probation ("VOP") court imposed a harsh and excessive sentence. Appellant's counsel filed a Petition to Withdraw as Counsel and a Brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as elucidated by our Supreme Court in Commonwealth v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981), and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009). After a full examination of all the proceedings, we find that this appeal is frivolous. Accordingly, we affirm Appellant's Judgment of Sentence and grant counsel's Petition to Withdraw.

On October 1, 2015, Appellant entered a negotiated guilty plea to one count of Retail Theft, graded as a misdemeanor of the second degree.¹ That same day, the trial court imposed the negotiated sentence of two years' probation.

While serving her probationary sentence under the trial court's supervision, Appellant (1) failed to report to her probation officer as directed; (2) overdosed on heroin and was hospitalized; and (3) failed to pay $796.50 in court costs and fines. See Request for Bench Warrant, filed 8/3/16. She was arrested and detained for approximately 75 days until her VOP hearing.

On November 22, 2016, the trial court, sitting as the VOP court, conducted a Gagnon II² hearing. Appellant, who participated via video conference and was represented by counsel, stipulated to the above probation violations. N.T., 11/22/16, at 3. The VOP court found that Appellant had violated her probation and imposed the maximum sentence of one to two years' incarceration.³ Id. at 7. See 18 Pa.C.S. § 1104(2) (providing a maximum term of imprisonment of "[t]wo years in the case of a misdemeanor of the second degree."). The trial court reasoned that its sentence would "drive[ ] home the seriousness of [Appellant's] addiction" and provide access to "state recovery programs" to treat Appellant's serious heroin addiction after other treatment options had been ineffective. Id. at 5–6.⁴ Appellant did not file a Post–Sentence Motion or a Motion to Reconsider her sentence.

On December 20, 2016, Appellant filed a timely Notice of Appeal.

On January 6, 2017, the trial court entered an Order pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a concise statement of matters complained of on appeal within twenty-one days. Instead, on January 25, 2017, Appellant's counsel filed a statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). On February 2, 2017, the VOP court filed a brief Opinion indicating that it would not opine on any issues given counsel's intent to file an Anders brief. See VOP Court Opinion, filed 2/2/17, at 1–2 (citing Commonwealth v. McBride , 957 A.2d 752, 758 (Pa. Super. 2008) ).

On April 18, 2017, counsel for Appellant filed an Anders Brief and a Petition to Withdraw as Counsel. Counsel appended a copy of a letter addressed to Appellant informing Appellant of counsel's Petition to Withdraw and her right to retain new counsel or proceed pro se . Appellant did not file a response.

In his Anders Brief, counsel raised one issue:

Whether the 1 to 2 year term of imprisonment imposed herein is harsh and excessive under the circumstances?

Anders Brief at 1.

On August 18, 2017, this Court certified this case for en banc review⁵ regarding the following issue:

Whether the scope of the appellate court's independent review of the certified record, once Counsel seeks permission to withdraw representation, necessitates: (1) a comprehensive review of the record for any issues that Counsel might have overlooked; (2) review limited to the issues either Counsel or the pro se appellant raised; or (3) review limited to the issues raised by either Counsel or pro se appellant, and issues that the appellate court is obligated to review sua sponte . Compare Commonwealth v. Flowers , 113 A.3d 1246 (Pa. Super. 2015) (espousing comprehensive review), with Commonwealth v. Baney , 860 A.2d 127 (Pa. Super. 2004) (limiting review to issues raised in Anders brief and pro se response), and Commonwealth v. Schmidt , ( Pa. Super. June 14, 2017) (Gantman, P.J., concurring) (suggesting middle ground level of review, in which appellate court examines entire record for issues raised in briefs and for other issues appearing on face of record which court can raise sua sponte )[.]

Order Directing En Banc Certification, 8/18/17, at 1–2. The parties have filed supplemental briefs addressing this issue.

Before we address the merits of this appeal, we must determine whether counsel has complied with the procedures provided in Anders and its progeny. Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) (en banc ).

In Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United States Supreme Court addressed "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." Id. at 739, 87 S.Ct. 1396. California had permitted Anders's attorney to withdraw based on a simple letter stating, "I will not file a brief ... there is no merit to the appeal." Id. at 742, 87 S.Ct. 1396. After concluding that the California procedures violated the Fourteenth Amendment's principles of substantial equality and fair process, the Supreme Court outlined a permissible procedure. Id. at 744, 87 S.Ct. 1396.

The Supreme Court acknowledged that in cases that involve frivolous appeals, counsel may request and receive permission to withdraw without depriving the indigent defendant of his right to representation, provided certain safeguards are met. Id. at 741–42, 87 S.Ct. 1396. Thus, Counsel who wishes to withdraw must file a petition to withdraw stating that he or she has made a conscientious examination of the record and determined that the appeal would be frivolous. Commonwealth v. Wright , 846 A.2d 730, 736 (Pa. Super. 2004). Also, counsel must provide a copy of the Anders brief to the appellant and inform him of his right to proceed pro se or retain different counsel. Id. See also Commonwealth v. Millisock , 873 A.2d 748 (Pa. Super. 2005) ; Commonwealth v. Daniels , 999 A.2d 590, 594 (Pa. Super. 2010) (providing that counsel must inform client by letter of rights to proceed once counsel moves to withdraw and append a copy of the letter to the petition).

The substance of the Anders brief 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." Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349, 361 (2009). In McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988), the U.S. Supreme Court noted that the Anders brief is designed, inter alia , to assist the court in making "the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." Id. at 439, 108 S.Ct. 1895.

Here, counsel's Anders Brief has complied with the mandated procedure for withdrawing as counsel.

Anders also provides that once the court has determined that counsel satisfied the above requirements, "the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds[,] it may grant counsel's request to withdraw and dismiss the appeal[.]" Anders , 386 U.S. at 744, 87 S.Ct. 1396. See also Commonwealth v. Baker , 429 Pa. 209, 239 A.2d 201 (1968) (holding that Pennsylvania courts must follow the Anders procedure). Thus, in addition to reviewing counsel's brief submitted with the withdrawal motion to ascertain whether counsel has adequately performed his or her duty with respect to providing proper representation to the appellant, a reviewing court must:

then proceed[ ], after a full examination of all the proceedings, to decide whether the case is wholly frivolous . If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Anders , supra at 744, 87 S.Ct. 1396 (emphasis added).

Our Court has inconsistently applied the mandate set forth in Anders and its progeny that we conduct "a full examination of all the proceedings, to decide whether the case is wholly frivolous" before granting an attorney's petition to withdraw from representation. Anders , supra at 744, 87 S.Ct. 1396. The discrepancy in our jurisprudence appears to stem from a disagreement as to whether the Anders requirement of "a full examination of all the...