Com. v. Dealbertis, J. ( 2019 )

J. S02008/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN DEALBERTIS, : No. 1864 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered May 25, 2018,
in the Court of Common Pleas of Monroe County
Criminal Division at Nos. CP-45-CR-0001029-2016,
CP-45-CR-0002845-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN DEALBERTIS, : No. 948 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered May 25, 2018,
in the Court of Common Pleas of Monroe County
Criminal Division at Nos. CP-45-CR-0001029-2016,
CP-45-CR-0002845-2013
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 29, 2019
John Dealbertis appeals from the May 25, 2018 judgments of sentence
entered by the Court of Common Pleas of Monroe County following his
J. S02008/19
conviction of criminal use of a communication facility.1 The trial court
appointed the Monroe County Public Defender’s Office as counsel for his
appeals. Eric C. Closs, Esq., filed an application to withdraw his appearance
on November 9, 2018, alleging that the appeals are wholly frivolous,
accompanied by an Anders brief.2 After careful review, we grant
Attorney Closs’s withdrawal application and affirm the judgments of sentence.
The trial court provided the following synopsis of the relevant procedural
history:
On May 21, 2014, [appellant] pled guilty in case
No. 2845 Criminal 2013 to Retail Theft[3] as a felony
of the third degree. Despite the felony grading and a
prior record, [appellant] was sentenced to two years
of probation.
In April of 2016, while still on probation, [appellant]
was arrested and charged in case No. 1029 Criminal
2016 with Possession With the Intent to Deliver
Heroin,[4] related drug charges, and Criminal Use of a
Communication Facility. As a result, a probation
violation petition was filed.
On May 11, 2016, [appellant] pled guilty in case
No. 1029 to Criminal Use of a Communication
[F]acility and admitted to violating the terms of his
probation in case No. 2845. We entered orders
directing that [appellant] be evaluated for the [State
Intermediate Punishment (“SIP”)] program.
1 18 Pa.C.S.A. § 7512(a).
2See Anders v. California, 386 U.S. 738 (1986), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
3 18 Pa.C.S.A. § 3929(a).
4 35 P.S. § 780-113(a)(30).
-2-
J. S02008/19
The Department of Corrections (DOC) subsequently
determined that [appellant] was suitable for SIP. On
August 29, 2016, we issued orders sentencing
[appellant] in both cases to the program.
[Appellant] did well in the first two phases (in prison
treatment immediately followed by two months of
treatment in a privately run inpatient facility) of the
four-phase program. However, he struggled in the
community based third and fourth phases of the
program. Specifically, he relapsed and used drugs on
three occasions, thereby violating the terms of the
program, the last of which occurred while [appellant]
was in the fourth and final phase. After the third
relapse, the DOC determined that, due to the multiple
relapses, [appellant] required inpatient treatment
which would have required him to be placed back in
phase two. However, [appellant] did not have enough
time left to complete inpatient and finish out SIP.
Accordingly, the DOC expelled him from the program.
On May 25, 2018, [the trial court] convened a
revocation and resentencing hearing. Based on the
expulsion, [the trial court] revoked [appellant]’s SIP
sentences. Counsel for [appellant] asked that [the
trial court] give credit for all time spent in phases one
and two of the program and impose a sentence that
would make [appellant] immediately eligible for
parole. [Appellant] acknowledged his relapses and
drug usage, but told the [trial court] that he had
gotten a lot out of the program and was a better
person now than when he went into SIP. The
Commonwealth asked for 15 to 30 months[’]
incarceration in both cases, to be run consecutively,
for an aggregate sentence of 30 to 60 months. After
considering the expulsion letter from the DOC,
guideline sentencing sheets and a resentencing
memorandum prepared by our Probation office, and
the history of these cases, including [appellant]’s
commission of felony crimes, his violation of
probation, his expulsion from the beneficial
SIP program, his addiction, and his criminal history,
which added up to a prior record score of 3, [the trial
-3-
J. S02008/19
court] resentenced [appellant] in case No. 1029 to
15 to 30 months, a standard range sentence, and in
case No. 2845 to a consecutive period of incarceration
of 12 to 24 months,[Footnote 1] for an aggregate
sentence of 27 to 54 months. [The trial court] gave
[appellant] time credit of 395 days representing all
time spent in the first two phases of the program.
[Footnote 1] The standard range in case
No. 2845 was RS to less than 12 months.
Thus, the individual sentence imposed in
that case is technically above the
standard range in that it exceeds the top
end standard range sentence by one day.
However, the standard range in case
No. 1029 is 9 to 16 months. Thus, the
aggregate sentence does not exceed the
sum total of the top end of the standard
range in each of the two cases.
Trial court opinion, 8/27/18 at 1-3.
Appellant filed a motion to reconsider on June 1, 2018. On June 4,
2018, the trial court denied appellant’s motion to reconsider. On June 22,
2018, appellant filed notices of appeal to this court. That same day, the trial
court ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on July 12, 2018.
On August 27, 2018, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
On July 22, 2018, this court filed an order directing appellant to show
cause why his appeal should not be quashed pursuant to our supreme court’s
holding in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). The
Walker court mandated that in cases where “a single order resolves issues
-4-
J. S02008/19
arising on more than one lower court docket, separate notices of appeal must
be filed. The failure to do so will result in quashal of the appeal.” Id. at 971
(footnote omitted). Appellant responded to the rule to show cause on
August 1, 2018, averring that he filed two notices of appeal with the trial
court. On August 28, 2018, this court entered an order discharging the rule
to show cause, deferring the issue to the merits panel.
Here, the record reflects that appellant filed two separate notices of
appeal, each containing both trial court docket numbers. Indeed, the trial
court’s docket sheets for both docket numbers reflect that appellant filed a
notice of appeal. As noted by appellant in his response to our order to show
cause, the notices of appeal also contain two different time stamps. (See
appellant’s answer to rule to show cause, 8/1/18 at 2, ¶¶ 3-4.) Based on our
review of the record, we find that appellant has complied with Walker’s
mandate that separate notices of appeal be filed in cases where a single order
resolves issues on more than one lower court docket.5 Now that we have
determined that quashal is not required under Walker, we turn to the merits
of appellant’s appeal.
5 Appellant filed an application for consolidation which this court denied on
August 28, 2018, because we received only one notice of appeal from the trial
court. Because appellant filed two separate notices of appeal, we generated
a new docket number, 948 EDA 2019, and transferred a copy of all filings from
No. 1864 EDA 2018 to No. 948 EDA 2019. On April 5, 2019, this court entered
an order sua sponte consolidating the appeals at Nos. 1864 EDA 2018 and
948 EDA 2019 pursuant to Pa.R.A.P. 513.
-5-
J. S02008/19
On November 9, 2018, Attorney Closs filed a petition in this court to
withdraw as counsel and an Anders brief, wherein Attorney Closs states there
are no non-frivolous issues preserved for our review.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v. Flowers,
113 A.3d 1246, 1247-1248 (Pa.Super. 2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods, 939
A.2d 896, 898 (Pa.Super. 2007). This
Court has summarized these
requirements as follows:
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
-6-
J. S02008/19
worthy of this Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
[T]he Anders brief that
accompanies court-appointed
counsel’s petition to withdraw
. . . 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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked the
existence of potentially non-frivolous issues.” Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
-7-
J. S02008/19
Our review of Attorney Closs’s petition to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of the
foregoing requirements.6 We note that counsel also furnished a copy of the
brief to appellant; advised him of his right to retain new counsel, proceed
pro se, or raise any additional points that he deems worthy of this court’s
attention; and attached to the Anders petition a copy of the letter sent to
appellant as required under Commonwealth v. Millisock, 873 A.2d 748, 752
(Pa.Super. 2005) (citation omitted), pursuant to this court’s November 20,
2008 order. See Commonwealth v. Daniels, 999 A.3d 590, 594 (Pa.Super.
2010) (“While the Supreme Court in Santiago set forth the new requirements
for an Anders brief, which are quoted above, the holding did not abrogate the
notice requirements set forth in Millisock that remain binding legal
precedent.”). Appellant did not respond to Attorney Closs’s Anders brief. As
Attorney Closs has complied with all of the requirements set forth above, we
conclude that counsel has satisfied the procedural requirements of Anders.
Once counsel has met his obligations, “it then becomes the responsibility
of the reviewing court to make a full examination of the proceedings and make
an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5, quoting Commonwealth v.
6We note that counsel did not attach a copy of the letter to appellant informing
him of his right to either privately retain counsel or proceed pro se to his
Anders brief. On November 20, 2018, this court entered a per curiam order
directing Attorney Closs to provide a copy of the letter, and Attorney Closs
complied.
-8-
J. S02008/19
McClendon, 434 A.2d 1185, 1187 (Pa. 1981). Thus, we now turn to the
merits of appellant’s appeal.
Appellant raises the following issue for our review:
Whether Appellate Counsel should be permitted to
withdraw pursuant to Anders and considering the
following issues:
a. Whether the lower court entered an
excessive sentence?
b. Whether the lower court failed to consider
a sentencing alternative?
c. Whether the Appellant should not have
been resentenced because he filed a
grievance regarding his expulsion from
SIP?
Anders brief at 4.
Attorney Closs examined the first two issues relating to appellant’s
sentence and concludes that the appeal is frivolous because the record
demonstrates that appellant’s sentence was within the standard range of the
sentencing guidelines and that the trial court considered sentencing
alternatives to incarceration. (See Anders brief at 10-15.) Attorney Closs
also examined the third issue on appeal relating to whether the trial court
erred by resentencing appellant because he filed a grievance concerning his
expulsion from the SIP program and concluded that the trial court was not
permitted to review the reasons for appellant’s expulsion from the SIP
program; rather, the court could only make a determination as to whether
appellant had been expelled from the SIP program. (Anders brief at 15-16;
-9-
J. S02008/19
citing Commonwealth v. Schultz, 116 A.3d 1116, 1121 (Pa.Super. 2015);
42 Pa.C.S.A. § 9774(b).)
Although Attorney Closs advances no argument in the Anders brief with
respect to these potential issues, we reiterate that neither Anders nor
McClendon requires counsel to set forth an argument; rather, Anders
requires counsel to provide references to anything in the record that might
arguably support the appeal. Santiago, 978 A.2d at 364. Attorney Closs has
done so. After carefully reviewing the record in this case, we conclude that it
supports Attorney Closs’s assessment that the appeal is frivolous because the
record demonstrates that appellant’s sentence was not excessive, the trial
court considered sentencing alternatives to incarceration, and appellant’s third
issue is waived on appeal.
Moreover, our independent review of the entire record reveals no
non-frivolous claims.
Judgments of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 5/29/19
- 10 -