Com. v. Teller, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIFFANI LEE TELLER :
:
Appellant : No. 1651 MDA 2019
Appeal from the Judgment of Sentence Entered September 5, 2019,
in the Court of Common Pleas of Luzerne County,
Criminal Division at No(s): CP-40-CR-0002478-2018.
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 09, 2020
Tiffani Lee Teller appeals from the judgment of sentence imposed
following the revocation of her probation. Additionally, Teller’s court-
appointed counsel, Matthew P. Kelly, Esquire, has filed a petition to withdraw
as counsel and an accompanying brief pursuant to Anders v. California, 386
U.S. 738 (1967). We grant Attorney Kelly’s petition, and affirm Teller’s
judgment of sentence.
On December 7, 2018, Teller entered guilty pleas to one count each of
retail theft and possession of a controlled substance.1 The trial court
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 3921(a)(I), 35 Pa.C.S.A. § 780-113(a)(16).
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sentenced her to serve nine months of probation on each count, to be served
concurrently. Teller did not file a post-sentence motion or a direct appeal.
Thereafter, the Luzerne County Department of Adult Probation and
Parole subsequently filed a petition to revoke Teller’s probation based on
alleged violations of the conditions of probation. On September 5, 2019, the
violation of probation (“VOP”) court conducted a hearing on the petition.
During the hearing, Teller admitted that she violated the terms of her
probation. The VOP court resentenced her to serve seventy-five days to nine
months in prison on each count, to be served concurrently. Teller filed a
timely notice of appeal. The VOP court appointed Attorney Kelly as Teller’s
appellate counsel. Both Teller and the VOP court complied with Pa.R.A.P.
1925.
In this Court, Attorney Kelly has filed a petition to withdraw from
representation and an Anders Brief. Teller did not file a response to the
petition or the Anders brief.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
frivolous and wishes to withdraw from representation, counsel must do the
following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
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determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise h[er] of h[er] right to retain new
counsel, proceed pro se, or raise any additional points [s]he
deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief:
(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. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, Attorney Kelly has complied with each of the requirements of
Anders. Attorney Kelly indicates that he conscientiously examined the record
and determined that an appeal would be frivolous. Further, Attorney Kelly’s
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Anders brief substantially comports with the requirements set forth by the
Supreme Court of Pennsylvania in Santiago. Finally, the record includes a
copy of the letter that Attorney Kelly sent to Teller, advising her of her right
to proceed pro se or retain alternate counsel and file additional claims, and
stating Attorney Kelly’s intention to seek permission to withdraw. Accordingly,
Attorney Kelly has complied with the procedural requirements for withdrawing
from representation, and we will conduct an independent review to determine
whether Teller’s appeal is wholly frivolous.
In the Anders Brief, Attorney Kelly raises two issues for our review:
I. Whether being resentenced on a probation violation constitutes
double jeopardy.
II. Whether trial counsel was ineffective in coercing her into an
involuntary plea.
Anders Brief at 1.
The first issue raised in the Anders brief presents a constitutional
challenge to the VOP court’s sentence on the basis that it violates the double
jeopardy clauses of the United States Constitution and the Pennsylvania
Constitution. Attorney Kelly concluded that the issue is frivolous because a
VOP sentence is not a second punishment for the original offense, but rather
an integral element of the original sentence. Anders Brief at 6 (citing
Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007)). We agree.
Generally, in reviewing an appeal from a judgment of sentence imposed
after the revocation of probation, this Court’s scope of review includes the
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validity of the hearing, the legality of the final sentence, and if properly raised,
the discretionary aspects of the appellant’s sentence. See Commonwealth
v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010). However, the question
of whether a defendant’s constitutional right against double jeopardy was
infringed is a question of law. Id. Hence, our scope of review is plenary and
our standard of review is de novo. Id.Our Supreme Court has explained that a VOP hearing “differs from a
trial, as probation and parole are not part of the criminal prosecution; the full
panoply of rights due a defendant in a criminal trial does not apply at a VOP
hearing.” Mullins, 918 A.2d at 85. Indeed, the standards for a violation of
probation hearing are distinctly different from a trial, as a VOP hearing “takes
place without a jury, with a lower burden of proof, and with fewer due process
protections.” Id. Therefore, “[r]evocation of probation and resentencing does
not implicate double jeopardy precisely because ‘revocation is not a second
punishment for the original conviction, but rather is an integral element of the
original conditional sentence.’” Commonwealth v. Johnson, 967 A.2d 1001,
1005 (Pa. Super. 2009) (quoting Mullins, supra at 85).
As Teller’s VOP sentence does not violate the double jeopardy clauses
of the United States Constitution or the Pennsylvania Constitution, we agree
with Attorney Kelly that the first issue raised in the Anders brief is frivolous.
The second issue raised in the Anders brief presents a claim that “trial
counsel was ineffective in coercing [Teller] into an involuntary plea.” Anders
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Brief at 6. Attorney Kelly concluded that this issue was frivolous because
claims of ineffective assistance of counsel are generally not reviewed upon
direct appeal, and are to be deferred to collateral review under the Post
Conviction Relief Act (“PCRA”). Id. (citing Commonwealth v. Holmes, 79
A.3d 562 (Pa. 2013)). Once again, we agree with Attorney Kelly’s
determination.
Litigation of ineffectiveness claims is not generally a proper component
of a defendant’s direct appeal, and is presumptively deferred for collateral
attack under the PCRA. See Holmes, 79 A.3d at 578 (establishing a deferral
rule for ineffectiveness claims litigated after its decision in Commonwealth
v. Grant, 813 A.2d 726 (Pa. 2002)). While the Pennsylvania Supreme Court
has recognized limited exceptions to the rule that ineffectiveness claims
should be deferred until collateral review, we find nothing in the record
suggesting that Teller’s ineffectiveness claim falls within any exception to the
rule that such a claim should be deferred until collateral review. See Holmes,
79 A.3d at 563-54; see also Commonwealth v. Delgros, 183 A.3d 352 (Pa.
2018). For this reason, we decline to address the merits of Teller’s
ineffectiveness claim, without prejudice for her to raise the claim on collateral
review before the PCRA court.
Finally, as required by Anders, we have independently reviewed the
record in order to determine whether there are any non-frivolous issues
present in this case. Our independent review of the record discloses no other
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non-frivolous issues that Teller could raise that her counsel overlooked. See
Dempster, supra.
Having concluded that there are no meritorious issues, we grant
Attorney Kelly’s petition to withdraw as counsel, and affirm the judgment of
sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/09/2020
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