Com. v. Becker, D. ( 2021 )

J-S01044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIELLE BECKER :
:
Appellant : No. 978 MDA 2020
Appeal from the Judgment of Sentence Entered March 25, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002777-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIELLE KLINEFELTER :
:
Appellant : No. 979 MDA 2020
Appeal from the Judgment of Sentence Entered March 25, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001211-2018
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 29, 2021
Appellant1 appeals from the March 25, 2020, judgment of sentence
entered in the Court of Common Pleas of Luzerne County following Appellant’s
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 We note that “Danielle Becker” and “Danielle Klinefelter” are the same
person. The record does not reveal the reason for the discrepancy in
Appellant’s last name.
J-S01044-21
guilty plea at lower court docket number CP-40-CR-0002777-2017 (“2777-
2017”) to one count of DUI-general impairment-first offense, 75 Pa.C.S.A. §
3802(a)(1), and at lower court docket number CP-40-CR-0001211-2018
(“1211-2018”) to one count of DUI-general impairment-second offense, 75
Pa.C.S.A. § 3802(a)(1), one count of DUI-highest rate of alcohol, 75 Pa.C.S.A.
§ 3802(c), and one count of DUI while BAC .02 or greater while license is
suspended, 75 Pa.C.S.A. § 1543(b)(1)(1.1)(i).
Additionally, Appellant’s counsel has filed a petition seeking to withdraw
his representation, as well as a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396 (1967), and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009) (hereinafter “Anders brief”). After a careful review,
we grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
The relevant facts and procedural history are as follows: On May 13,
2019, Appellant, who was represented by counsel, entered an open guilty plea
to the charges indicated supra in docket numbers 2777-2017 and 1211-2018.
As to docket number 2777-2017, Appellant admitted that, on June 23,
2017, in Hanover Township, Pennsylvania, she drove her vehicle while under
the influence of alcohol to a degree that she was incapable of safe driving, and
she was involved in an automobile accident. N.T., 5/13/19, at 6. As to docket
number 1211-2018, Appellant admitted that, on January 21, 2018, in
Nanticoke, Pennsylvania, she drove her vehicle while under the influence of
-2-
J-S01044-21
alcohol to a degree that she was incapable of safe driving, and she was
involved in an automobile accident. Id. at 7. She further admitted that her
BAC was .247% within two hours after she was driving on January 21, 2018,
and she was driving with her license suspended. Id.
On February 27, 2020, Appellant filed a counseled motion to withdraw
her guilty plea entered at docket number 2777-2017, and at the
commencement of the sentencing hearing on March 25, 2020, the learned trial
court denied the motion.2
With regard to sentencing, the trial court indicated it had reviewed a
presentence investigation report (“PSI report”). N.T., 3/25/20, at 7. Defense
counsel noted the PSI report did not include all of the credit for time served
by Appellant. Specifically, defense counsel indicated Appellant failed to appear
at the sentencing hearing, which was originally scheduled in December of
2019, and Appellant was thereafter apprehended by the police in January of
2020, at which time she was incarcerated. Id. at 8. The parties and the trial
court agreed that Appellant was entitled to a total of 107 days for time served
in the instant matters. Id. at 9.
____________________________________________
2 In denying the motion, the trial court explained that Appellant had twice
previously entered a guilty plea for the charges at docket number 2777-2017,
and she was twice permitted to withdraw her plea. N.T., 3/25/20, at 3-6. The
trial court indicated it was satisfied that Appellant entered her May 13, 2019,
guilty plea voluntarily and knowingly, and therefore, the trial court denied her
request to again withdraw her guilty plea for docket number 2777-2017. See
id.
-3-
J-S01044-21
The trial court acknowledged its understanding of the sentencing
guideline ranges and mandatory sentences. Id. The Commonwealth
indicated Appellant had a prior record score of 3. Id. at 10. Defense counsel
stated the following:
We would note that [Appellant] is RRRI eligible. I believe
this case has been kicked around between DAs. At that point
where she had missed her sentencing in December, [ADA]
McLaughlin was on the case, and he and I came to realize that she
was not here, but we both believed that given this is a third and
fourth DUI within ten years, she very likely needs treatment. And
we had discussed sending her for an SIP evaluation, given she’ll
be given state time on these charges.
As we all know, the SIP program since then has changed to
the state drug treatment program, so we would request that Your
Honor run these concurrent with each other and make her eligible
for the state drug treatment program, as I think the record is clear
that she needs some treatment.
Id.
Appellant informed the trial court that she had been sober for three
years. Id. at 12.
The trial court indicated the following:
[Appellant] has done everything in her power to avoid these
charges. She’s done everything in her power not showing up at
sentencings twice. She writes me letters every day from prison
because I’ve reviewed every letter. Clearly, she needs drug and
alcohol treatment.
On 1211 of ’18, Count 1: 1 year to 2 years in a state
correctional facility.
Count 2 merges with Count 1 for sentencing.
Count 3: 90 days in a state correctional [facility] plus $1,000
fine. That will be concurrent to Count 1.
-4-
J-S01044-21
On the DUI, it’s a $1500 fine. 18-month license suspension.
12-month ignition interlock device. Alcohol highway safety school.
Restitution for the vehicle damage to Amy Bennett or
Steven Bennett of $473.63 for vehicle damage[.]
***
On 2777 of ’17, 1 year to 2 years in a state correctional
facility. This case number will be consecutive and not current to
the sentence imposed on 1211 of ’18, Count 1.
So, it’s a total of 2 to 4 years in a state correctional facility.
***
I will make her eligible for the state drug treatment
program. She is RRRI eligible.
Id. at 11-12. The trial court provided Appellant with her post-sentence and
appeal rights. Id. at 12-13.
On March 26, 2020, Appellant filed at both docket numbers a counseled
motion seeking to modify and/or reduce her sentence. On July 22, 2020, the
trial court denied the post-sentence motion at both docket numbers, and on
that same date, Appellant filed a separate counseled notice of appeal at each
docket number.3 All Pa.R.A.P. 1925 requirements have been met.
On November 10, 2020, counsel filed in this Court a petition seeking to
withdraw his representation, as well as an Anders brief. Appellant filed no
further submissions either pro se or through privately-retained counsel.
____________________________________________
3 This Court consolidated the appeals.
-5-
J-S01044-21
Prior to addressing any issue raised on appeal, we must first resolve
counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa.Super. 2007) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal
pursuant to which counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the [appellant]; and 3) advise the [appellant] that
he or she has the right to retain private counsel or raise additional
arguments that the [appellant] deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Santiago stated
that an 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.
Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide
the appellant with a copy of the Anders brief, together with a letter that
advises the appellant of his or her 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,
-6-
J-S01044-21
353 (Pa.Super. 2007) (citation omitted). Substantial compliance with the
Anders requirements is sufficient. See id.Herein, counsel filed a petition to withdraw as counsel and an Anders
brief. His brief and petition substantially comply with the technical
requirements of Anders and Santiago. Moreover, counsel has provided this
Court with a copy of the letter, which he sent to Appellant advising her of her
right to retain new counsel, proceed further with her case pro se, and raise
any points that she deems worthy of this Court’s attention. See
Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore,
we proceed to examine the issues counsel identified in the Anders brief and
then conduct “a full examination of all the proceedings, to decide whether the
case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195
(Pa.Super. 2018) (en banc) (quotation omitted).
In the Anders brief, counsel sets forth the following issues in the
“Questions Presented for Review” (verbatim):
1. Whether the trial court committed an error of law or abuse of
discretion in failing to issue concurrent sentences.
2. Whether the trial court abused its discretion or committed an
error of law in failing to consider the Appellant’s need for
substance abuse treatment or other forms of rehabilitation in
fashioning its sentence.
-7-
J-S01044-21
Anders Brief at 1.4
Appellant’s issues present a challenge to the discretionary aspects of her
sentence. “[C]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Derry, 150
A.3d 987, 991 (Pa.Super. 2016) (citation omitted). Rather, before reaching
the merits of such claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
[her] issues; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is inappropriate under the sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa.Super. 2011) (citation
omitted). Here, assuming, arguendo, all of these requirements have been
met, we conclude Appellant’s sentencing issues are meritless.
Our standard of review concerning the discretionary aspects of
sentencing is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
____________________________________________
4 Although the Anders brief sets forth two separate sentencing issues, counsel
discusses the issues together in one argument section. We shall treat the
issues in a similar manner.
-8-
J-S01044-21
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005).
Pursuant to Section 9721(b), “the court shall follow the general principle
that the sentence imposed should call for confinement that is consistent with
the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as
part of the record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed.” Id.
Nevertheless, “[a] sentencing court need not undertake a lengthy discourse
for its reasons for imposing a sentence or specifically reference the statute in
question....” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super.
2010).
Rather, the record as a whole must reflect the sentencing court’s
consideration of the facts of the case and the defendant’s character. Id. “In
particular, the court should refer to the defendant’s prior criminal record, [her]
age, personal characteristics and [her] potential for rehabilitation.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002).
Instantly, the trial court had the benefit of a PSI report at sentencing.
Therefore, we can presume the court considered the relevant factors when
sentencing Appellant. See Commonwealth v. Tirado, 870 A.2d 362(Pa.Super. 2005) (stating where sentencing court had benefit of PSI, law
-9-
J-S01044-21
presumes court was aware of and weighed relevant information regarding the
defendant’s character and mitigating factors).
Moreover, during the sentencing hearing, the trial court specifically
indicated it reviewed the PSI report and was aware of the sentencing guideline
ranges. N.T., 3/25/20, at 7, 9. Additionally, in as much as the trial court
judge was also the sentencing judge, the judge was aware of the gravity of
Appellant’s DUI offenses, including the fact that the incidents resulted in
automobile accidents.
Further, the trial court heard defense counsel’s argument that Appellant
requires drug and alcohol treatment, as well as defense counsel’s request that
the trial court impose all sentences concurrently. Id. at 10. In response, the
trial court acknowledged Appellant requires drug and alcohol treatment, and
in imposing Appellant’s sentence, the trial court specifically directed she is
“eligible for [the] state drug treatment program.” Id. at 10, 12. However,
with regard to the imposition of all concurrent, as opposed to consecutive
sentences, the trial court noted that Appellant improperly attempted to avoid
punishment for her actions by twice failing to appear for scheduled sentencing
hearings. Id. at 10.
Moreover, in its Rule 1925(a) Opinion, the trial court relevantly indicated
the following:
Before sentencing [Appellant], [the trial court] had an
opportunity to review the [PSI] report prepared by the Luzerne
County Probation Department and consider the information
contained therein. Although [Appellant] indicated at sentencing
- 10 -
J-S01044-21
that she had been sober for three years on her own, she was made
eligible for the state drug treatment program. N.T., 3/25/20, at
12. Her three year sobriety claim is doubtful since both of the DUI
offenses occurred within three years of the date of sentencing.
She was also made eligible for the Recidivism Risk Reduction
Incentive Program. Id. Her RRRI minimum sentence was
eighteen months. Id. [Appellant’s] need for substance abuse
treatment and rehabilitation were considered and addressed.
[Appellant] was sentenced within the standard range of the
sentencing guidelines and discretion was exercised in running the
two driving under the influence sentences consecutive to each
other. The imposition of consecutive sentences based on the facts
of this case was appropriate. A sentence of two to four years is
neither unreasonable nor excessive. No abuse of discretion
occurred.
Trial Court Opinion, filed 9/14/20, at 4-5.
We agree with the trial court’s sound reasoning. With regard to
Appellant’s claim the trial court failed to consider her need for rehabilitation
and substance abuse treatment, the record belies her claim.
With regard to her claim the trial court abused its discretion in imposing
sentences consecutively, the record reveals Appellant pled guilty to numerous
DUI offenses in connection with two separate incidents: one occurring on June
23, 2017, and one occurring on January 21, 2018. While the trial court
imposed consecutive sentences for one count of DUI under 75 Pa.C.S.A. §
3802(a)(1) for docket number 2777-2017, and one count of DUI under 75
Pa.C.S.A. § 3802(c) for docket number 1211-2018, the trial court either
imposed all other sentences concurrently or determined the offenses merged
for sentencing purposes.
- 11 -
J-S01044-21
In so doing, the trial court considered the mitigating factors, along with
the need to protect the public, the gravity of Appellant’s offenses, and
Appellant’s rehabilitative needs. 42 Pa.C.S.A. § 9721(b). We agree with the
trial court that Appellant was not entitled to a “volume discount” by having all
of her sentences run concurrently. See Commonweath v. Swope, 123 A.3d
333 (Pa.Super. 2015) (holding an appellant is not entitled to a volume
discount for crimes). Thus, Appellant is not entitled to relief on her claims.
After examining the issues contained in the Anders brief, we agree with
counsel that the appeal is wholly frivolous. “Furthermore, after conducting a
full examination of all the proceedings as required pursuant to Anders, we
discern no non-frivolous issues to be raised on appeal.” Yorgey, 188 A.3d at
1195. Thus, we grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/29/2021
- 12 -