Com. v. Leonard, D. ( 2020 )

J-S28012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK LORENZO LEONARD :
:
Appellant : No. 1985 MDA 2019
Appeal from the Judgment of Sentence Entered June 19, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007957-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK LORENZO LEONARD :
:
Appellant : No. 1986 MDA 2019
Appeal from the Judgment of Sentence Entered June 19, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005120-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK L. LEONARD :
:
Appellant : No. 1987 MDA 2019
Appeal from the Judgment of Sentence Entered June 19, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0008036-2015
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
J-S28012-20
MEMORANDUM BY BOWES, J.: FILED AUGUST 11, 2020
Derrick Lorenzo Leonard appeals from the aggregate judgment of
sentence of ten years of probation which was imposed after Appellant pled
guilty to two counts of possession with the intent to deliver (PWID) heroin and
one count each of possession of drug paraphernalia and tampering with
evidence. Appellant’s counsel has filed a petition to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s
petition to withdraw and affirm Appellant’s judgment of sentence.
On October 21, 2014, Appellant delivered forty bags of heroin to a
confidential informant. The next day, Appellant delivered four bags of heroin
to a confidential informant. Then, on July 9, 2015, after Appellant made eye
contact with a police officer while he was driving his car, he started throwing
drug paraphernalia out of his car window.
Appellant was charged with PWID-heroin at two separate docket
numbers, and at a third docket number, he was charged with tampering with
physical evidence and possession of drug paraphernalia. The charges were
docketed separately based on the distinct offense dates. Thereafter, Appellant
applied for acceptance into the York County Court of Common Pleas Adult
Drug Court Program.1 After completion of a drug and alcohol assessment and
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1 The Drug Court program is:
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review by the drug court team, Appellant was conditionally accepted into the
program, pending the entry of a guilty plea to the aforementioned charges.
On June 28, 2016, as part of his acceptance into drug court, Appellant pled
guilty to all of the offenses. Sentencing was deferred pending Appellant’s
successful completion of drug treatment court.2
However, on April 10, 2018, the trial court issued an order removing
Appellant from drug court, due to his failure to make sufficient progress
towards completing the program. Accordingly, on June 19, 2018, Appellant
appeared for sentencing. After the Commonwealth announced the guideline
sentence ranges, which called for jail time in the standard range, it requested
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used as an alternative to the conventional criminal prosecution
process in appropriate cases involving drug-related crimes, or
where offenders are coping with a drug addiction, in order to
achieve the twin goals of reducing the incidence of drug-related
crimes, and preventing recidivism by offenders. Employing
principles of “therapeutic jurisprudence,” these courts combine
intensive judicial supervision, drug testing, and comprehensive
treatment to assist offenders in overcoming the substance abuse
problems that enmeshed them in the criminal justice system. In
Pennsylvania, drug courts comprise an integral part of the
Commonwealth’s multi-faceted system of problem-solving courts,
a program which th[e Supreme] Court has taken great pride in
establishing and fostering.
Office of Disciplinary Counsel v. Pozonsky, 177 A.3d 830, 832–33 (Pa.
2018) (citations omitted).
2 Appellant was advised that upon his completion of drug court, the felonies
would be reduced to misdemeanors and his misdemeanors would be
dismissed. N.T. Sentencing Hearing, 6/28/16, at 3. The sentencing court did
not explain the penalties Appellant faced if he failed to complete drug court,
after Appellant indicated he already understood the potential risks and had no
questions regarding them. Id. at 3.
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a sentence of incarceration. On Appellant’s behalf, counsel put forth the
testimony of Appellant’s fiancé and submitted a letter of recommendation from
Appellant’s place of employment before asking for a mitigated sentence of
probation. The court was persuaded by trial counsel’s argument, and despite
Appellant’s lengthy criminal history and failure to complete the drug treatment
program, it imposed an aggregate term of ten years of probation. Appellant
did not file a post-sentence motion or direct appeal.
On June 4, 2019, Appellant filed a pro se petition pursuant to the Post-
Conviction Relief Act (“PCRA”). Appointed counsel sought the reinstatement
of Appellant’s direct appeal rights from his original sentence at all three cases.
On November 25, 2019, the PCRA court granted Appellant’s request to
reinstate his direct appeal rights and Appellant filed timely notices of appeal
at each docket number. In his court-ordered Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal, Appellant challenged the trial
court’s discretion in denying his graduation from the drug court program by
removing him from the program. The trial court issued three identical
Pa.R.A.P. 1925(a) opinions, in which it explained that it had not abused its
discretion because Appellant was “nowhere near” completing the graduation
requirements, which is why he was removed from the program. Trial Court
Opinion, 2/4/2020, at 1 n.1.
In this Court, counsel filed a petition for consolidation of the three
appeals, which we granted. Next, counsel filed both an Anders brief and a
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petition to withdraw as counsel. Accordingly, the following principles guide
our review of this matter:
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 worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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
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record, controlling case law, and/or statues on point that have led
to the conclusion that the appeal is frivolous.
Santiago, supra at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above. Counsel set forth the procedural case
history, referred to an issue that arguably supports the appeal, stated his
conclusion that the appeal is frivolous, and cited to case law which supports
that conclusion. See Anders brief at 5-11. Additionally, counsel gave
Appellant proper notice of his right to immediately proceed pro se or retain
another attorney.3 See Santiago, supra; Letter, 4/24/2020. Accordingly,
we proceed to an examination of the issue raised to discern if it is frivolous.
Commonwealth v. Dempster, 187 A.3d 266, 273 (Pa.Super. 2018) (en
banc).
Counsel identified one issue that arguably supports this appeal:
“Whether the trial court abused its discretion by denying Appellant’s
graduation from the drug court program and removing Appellant from the
program.” Anders brief at 4.
In Commonwealth v. Gano, 781 A.2d 1276, 1279 (Pa.Super. 2001),
this Court stated that the standard of review to be employed when considering
the trial court’s denial of admission into Accelerated Rehabilitative Disposition
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3 Appellant did not file a response to counsel’s petition.
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(“ARD”) program is an abuse of discretion standard. Since the York County
drug treatment program is also a specialty rehabilitation court program, it
follows that the same standard of review applies here. Accordingly, we
consider Appellant’s claim under an abuse of discretion standard of review.
Counsel’s issue of arguable merit questions whether the trial court
abused its discretion when it removed Appellant from the drug treatment court
program, because he failed to obtain a GED. Anders brief at 10. The trial
court responded that Appellant was “nowhere near the completion of the
treatment court program, and thus, any issue of graduation [was] not a ripe
issue for review.” Trial Court Opinion, 2/4/20, at 1 n.1. Further, the court
explained that Appellant was removed from the program because he
consistently attempted to manipulate his probation officers and the drug court
treatment, not because he failed to obtain his GED. See Sentencing
Transcript, 9/25/2018, at 11-13. Accordingly, counsel’s issue of arguable
merit is factually inaccurate and, thus, is frivolous.
Upon our independent review of the record, we find that the record
supports the trial court’s recitation. In its order removing Appellant from the
drug court treatment program, the court stated that its action was
necessitated because Appellant was continuing to have problems that would
not allow him to graduate. See Order, 4/10/18. At the sentencing hearing,
the court expanded upon its reasoning for removing Appellant from the
program at length, after Appellant’s fiancé, counsel, and Appellant all stated
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that they believed Appellant had been removed from the program due to a
failure to complete the GED requirements:
[Appellant] is not being sentenced and he wasn’t kicked out
of the program for failing to compete the GED program . . . .
[Appellant was] removed from the program because of a
continued pattern of criminal thinking, addictive thinking,
manipulation[,] and falsehoods. [Appellant] has never bought
into this program entirely.
....
He should never have been in phase [three] in the first
place, in my opinion, because he had not progressed to that point.
He had previously taken medication without prior approval
from the treatment court team, and even though the conditions
regarding medication consumption were explained to him multiple
times. . . . his response to that was one of deflecting responsibility.
...
With regard to the GED, it’s not that he didn’t complete the
GED, it was again the manipulative thinking and excuse making,
not taking responsibility for not accomplishing the requirements.
The probation report captures it well, noting that, although
[Appellant] was in phase [three] for 271 days, he was still not
ready for graduation and that, quote, [Appellant] repeatedly
displayed a pattern of behavior in which [Appellant] was resistant
to make any significant changes to adhere to the treatment court
team’s recommendations.
[Appellant] also displayed very little progress and appeared
as if [Appellant] stagnated in his recovery. I had [Appellant]
before me any number of times and he preferred to argue about
things rather than accept change, and that is why he was removed
from the treatment court after all opportunities at rehabilitation
had been exhausted.
N.T. Sentencing Hearing, 6/19/18, at 11-12.
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The record shows that Appellant entered into a guilty plea where the
sentence imposed was reliant on his successful completion of the drug court
treatment program. See N.T. Guilty Plea Hearing, 7/9/15, at 3-4. Appellant’s
progress was stagnant and, when it became clear that Appellant would not
fulfill the program’s requirements, he was removed from the program. See
Order, 4/10/18. The court then ordered the generation of a Presentence
Investigation Report (“PSI”) to aid it in fashioning an appropriate sentence.
Appellant was represented by counsel at sentencing and the court reviewed
the PSI, sentencing guidelines, and letters and testimony submitted by
counsel on Appellant’s behalf. N.T. Sentencing Hearing, 6/19/18, at 1-16.
The court was persuaded by the mitigation evidence presented by counsel,
and imposed the requested probation sentence, which fell below the standard
range of the guidelines. Id. We discern no abuse of discretion in the
sentencing court’s actions. Therefore, we find Appellant’s overarching
allegation of sentencing error devoid of merit.
Further, we have conducted a “full examination of the proceedings” and
have determined that “the appeal is in fact wholly frivolous.” 4
Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since
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4 We undertook our review mindful of the fact that “upon entry of a guilty
plea, a defendant waives all claims and defenses other than those sounding
in the jurisdiction of the court, the validity of the plea, and what has been
termed the ‘legality’ of the sentence imposed.” Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). No viable claims or defenses on
those subjects are apparent from the record before us.
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our review did not disclose any other arguably meritorious claims, we grant
counsel’s petition to withdraw and affirm the judgment of sentence.
Dempster, supra at 273.
Petition of Mark Semke, Esquire, to withdraw as counsel is granted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/11/2020
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