Commonwealth v. Schmidt

165 A.3d 1002

COMMONWEALTH of Pennsylvania, Appellee

v.Joseph SCHMIDT, Appellant

No. 1579 MDA 2016

Superior Court of Pennsylvania.

Submitted February 27, 2017

Filed June 14, 2017

Joseph Schmidt, appellant, pro se.

John H. Scanlon, IV, Assistant District Attorney, and Lisa A. Swift, Assistant District Attorney, Scranton, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.^*

OPINION BY BENDER, P.J.E.:

Appellant, Joseph Schmidt, appeals from the judgment of sentence of 2 to 4 years' incarceration, imposed after the trial court revoked his sentence of intermediate punishment stemming from his convictions of driving under the influence of alcohol (DUI), and fleeing or attempting to elude a police officer. On appeal, Appellant seeks to raise one issue challenging the discretionary aspects of his sentence. Additionally, his counsel, Douglas Vanston, Esq., seeks to withdraw his representation of Appellant pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After careful review, we affirm Appellant's judgment of sentence and grant counsel's petition to withdraw.

The trial court summarized the facts and procedural history of Appellant's case as follows:

Under Docket Number CP–35–CR–0002654–2011, [Appellant] was charged with Possession of a Controlled Substance in violation of 35 P.S. 780–113(a)(16), Driving Under the Influence of Alcohol or Controlled Substance [ (DUI) ] in violation of 75 Pa.C.S.A. [§] 3802(c), and Fleeing or Attempting to Elude Officer in violation of 75 Pa.C.S.A. [§] 3733(a). These charge[s] stemmed from a June 25, 2011, incident in which an Officer of the Scranton Police Department observed [Appellant] interact with two other males in a convenient [sic ] store and parking lot. [Appellant's] vehicle was a maroon truck bearing PA Registration YSJ0599. The Officer pulled his patrol vehicle behind [Appellant's] truck and when [Appellant] noticed, he drove away. As the Officer followed, [Appellant's] driving became erratic and he failed to fully stop at intersections. The Officer activated his emergency lights and siren to conduct a traffic stop, yet [Appellant] continued driving erratically. [Appellant] stopped but the Officer observed him making furtive movements inside the cab of the truck. The Officer detected a strong odor of alcohol coming from the vehicle and observed [Appellant's] glossy eyes and slow, slurred speech. The Officer also observed an open beer can next to the driver seat. [Appellant] consented to a search of his vehicle and person. The Officer's search of [Appellant's] vehicle yielded over ten (10) open cans of beer, a pill identified as Dextro Amphetamine/ Amphetamine 7.5[ m]g, a Schedule II controlled substance, and the corner of a "twist" containing white powder resid [ue] which the officer knew is the type of item commonly used to package narcotics. The Officer was additionally informed by the Fire Inspector who assisted him at the scene that he found a top half of a twist bag at the intersection near where [Appellant] ultimately stopped.

On January 20, 2012, [Appellant] entered a guilty plea to ... [DUI] ... in violation of 75 Pa[.]C.S.A. [§] 3802(c) and ... Fleeing or Attempting to Elude Officer in violation of 75 Pa[.]C.S.A. [§] 3733(a).

On April 17, 2012, this [c]ourt sentenced [Appellant] [for] ... DUI to a six (6) month Intermediate Punishment Sentence with the first three (3) days on SCRAM House Arrest[ ], followed by twenty seven (27) days SCRAM Alcohol Monitoring plus five (5) months' probation and [for] ... Fleeing or Attempting to Elude Officer to two (2) years' probation, consecutive.

On November 21, 2012, this [c]ourt revoked [Appellant's] April 17, 2012, sentence after [Appellant] stipulated to a probation violation after [he] entered a guilty plea to a charge of Indirect Criminal Contempt for repeatedly violating a Protection from Abuse Order issued by the Honorable Margaret Bisignani Moyle. This [c]ourt resentenced [Appellant] to two (2) years ['] Intermediate Punishment with the first ninety (90) days on SCRAM House Arrest followed by ninety (90) days on alcohol monitoring and ordered the [Appellant] to participate in the Lackawanna County DUI Court Program.

On January 15, 2014, this [c]ourt again revoked and resentenced [Appellant] ... [for his Fleeing or Attempting to Elude a Police Officer conviction] to a two (2) year Intermediate Punishment Sentence with the first ninety (90) days [on] House Arrest, attend D[UI] Court, and no contact with Joan Chorsencki for the first six (6) months with no further Penalty [for his DUI conviction]. This occurred after [Appellant] stipulated at his [revocation of probation] hearing to violating the terms of his supervision by being arrested for Public Drunkenness in a Walmart parking lot and living at an unregistered address with Joan Chorsencki, a woman with a criminal history who had been under supervision of the Pennsylvania Board of Probation and Parole.

On October 8, 2014, this [c]ourt once again revoked and resentenced [Appellant] ... [for his Fleeing or Attempting to Elude a Police Officer conviction] to a two (2) year Intermediate Punishment Sentence with the first ninety (90) days on SCRAM House Arrest, attend DUI Court, and no contact with Joan Chorsencki for the first six (6) months[,] with no further Penalty ... [for his DUI offense]. This occurred after [Appellant] stipulated [at the revocation hearing] to violating the terms of his supervision ... after the police were called to his residence regarding a domestic dispute between [Appellant] and Joan Chorsencki, despite this [c]ourt['s] repeatedly ordering [Appellant] to stay away from Ms. Chorsencki from the Bench throughout DUI Court appearances.

On April 8, 2015, following [Appellant's] fourth violation, this [c]ourt once again revoked and resentenced [him for his Fleeing or Attempting to Elude a Police Officer offense] two (2) year[s'] Intermediate Punishment ... with the first three (3) months in Lackawanna County Prison on Work Release, followed by three (3) months on SCRAM House Arrest. This occurred after [Appellant] stipulated [at his revocation hearing] to violating the terms of his supervision ... [when] he was arrested by Scranton Police regarding another domestic dispute between [him] and Joan Chorsencki.

On August 17, 2016, this [c]ourt again revoked [Appellant's] [Intermediate Punishment] sentence [for his conviction of Fleeing or Eluding a Police Officer] and resentenced [him] to two (2) to four (4) years' incarceration in a State Correctional Institution. [Appellant] stipulated to violating the terms of his supervision [by being] ... arrested at Joan Chorsencki's residence after engaging in a physical altercation with her brother, Joseph, while [Appellant] was under the influence of alcohol.

On August 17, 2016, [Appellant] filed a Motion for Reconsideration of Sentence in which he cited his relapse and struggle with alcohol abuse and requested that this [c]ourt reconsider another [Intermediate Punishment] sentence or a program including Work Release. This [c]ourt denied [Appellant's] Motion for Reconsideration on August 31, 2016.

[Appellant] filed a Notice of Appeal to the Pennsylvania Superior Court on September 16, 2016.

Trial Court Opinion (TCO), 11/29/16, at 1–4 (citations to the record omitted).

On September 30, 2016, the trial court issued an order directing Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely complied, filing a Rule 1925(b) statement that presented the following, single issue: "Whether the sentence[ ] imposed [was] harsh and unreasonable and an abuse of discretion?" Rule 1925(b) Statement, 10/4/16, at 1.

On January 4, 2017, Attorney Vanston filed with this Court a petition to withdraw from representing Appellant. He has also filed an Anders brief, asserting that Appellant's sentencing issue is frivolous, and that there are no other, non-frivolous issues Appellant could raise on appeal.

This Court must first pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc ).

Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The 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.

Santiago, 978 A.2d at 361. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: "(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[']s attention in addition to the points raised by counsel in the Anders brief." Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied , 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879–880 (Pa. Super. 2014). After determining that counsel has satisfied these technical requirements of Anders and Santiago, this Court must then "conduct an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel." Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

In this case, Attorney Vanston's Anders brief complies with the above-stated requirements. Namely, he...