Com. v. O'Donnell, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAMMY L. O'DONNELL :
:
Appellant : No. 622 WDA 2022
Appeal from the Judgment of Sentence Entered February 22, 2022
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000895-2021, CP-11-CR-0000896-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: June 30, 2023
Tammy O’Donnell appeals from the judgment of sentence imposed by
the Cambria County Court of Common Pleas following a violation of parole
(“VOP”) hearing. At the time of the VOP hearing, O’Donnell was on parole from
the judgment of sentence imposed after she entered a guilty plea related to
two separate docket numbers. Appointed counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and an application to withdraw
from representation. We grant counsel’s application, and affirm the judgment
of sentence.
In July 2021, O’Donnell was charged with several offenses, including
DUI: Highest Rate of Alcohol, at criminal docket number CP-11-CR-0000895-
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* Retired Senior Judge assigned to the Superior Court.
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2021. The following month, O’Donnell was charged with several other offenses
related to a separate incident, including aggravated assault and terroristic
threats, at criminal docket number CP-11-CR-0000896-2021.
On January 25, 2022, the trial court held a guilty plea hearing. O’Donnell
pleaded guilty to DUI: Highest Rate of Alcohol at criminal docket number CP-
11-CR-0000895-2021 and to terroristic threats at criminal docket number CP-
11-CR-0000896-2021. On February 22, 2022, the trial court sentenced
O’Donnell to 72 hours to six months’ imprisonment for the DUI charge and a
concurrent term of imprisonment of six months to two years less one day for
the terroristic threats charge. The court also directed O’Donnell to complete
an inpatient drug and alcohol treatment program and then attend the Day
Reporting Center (“DRC”), and abstain from drugs and alcohol. O’Donnell did
not file an appeal from that judgment of sentence.
O’Donnell was released to an inpatient treatment program on March 16,
2022. After she completed that program, the trial court granted O’Donnell
parole, subject to the conditions imposed at the time of sentencing. The
following day, O’Donnell’s parole officer detained O’Donnell because she had
failed to attend the DRC and tested positive for alcohol.
The trial court held a VOP hearing on May 10, 2022. The court found
O’Donnell had violated her parole and recommitted O’Donnell to serve the
balance of her sentence. The court, however, specifically informed O’Donnell
she could petition the court for a parole hearing once she had a valid home
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plan verified and “as soon as that happens, we’ll come right back in for a
review hearing, and then I can auto-parole you to that, along with the DRC.”
N.T., 5/10/22, at 10; Parole Violation Hearing Order, 5/10/22, at 1
(“verification of home plan and then to DRC”).
O’Donnell filed an untitled, single document pro se on May 18, 2022,
which purportedly sought to appeal this judgment of sentence and contained
both criminal docket numbers in the upper right-hand corner of the filing. The
court treated the pro se filing as a single, timely notice of appeal.
As an initial matter, we acknowledge that this pro se filing implicates
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), reversed in part by
Commonwealth v. Young, 265 A.3d 462 (Pa. 2021). In Walker, our
Supreme Court held that appellants are required to file separate notices of
appeal when a single order resolves issues arising on more than one lower
court docket. See Walker, 185 A.3d at 976. Walker announced a prospective
bright-line rule that a failure to file separate notices of appeal in these
circumstances would result in the quashal of the appeal. See id. at 977.1
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1 We acknowledge the Supreme Court held in Young that the Rules of
Appellate Procedure require that “when a single order resolves issues arising
on more than one docket, separate notices of appeal must be filed from that
order at each docket; but, where a timely appeal is erroneously filed at only
one docket, [Pa.R.A.P.] 902 permits the appellate court, in its discretion, to
allow correction of the error[.]” Young, 265 A.3d at 477; see also Pa.R.A.P.
902 (amended May 18, 2023). We find any such step to be unnecessary here
given that, as explained above, we would not have quashed this appeal under
Walker.
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However, this Court carved out several exceptions to the rule announced
in Walker, one of which applies to this case. In Commonwealth v. Larkin,
this Court held that we will overlook the requirements of Walker and decline
to quash a single notice of appeal from an order resolving multiple lower court
docket matters where a breakdown occurs in the court system, and a
defendant is misinformed or misled regarding his appellate rights. See
Larkin, 235 A.3d 350, 354 (Pa. Super. 2020) (en banc). Applying that
exception to the circumstances in Larkin, the Court noted that although
Larkin had improperly filed a single notice of appeal from an order disposing
of two separate criminal docket numbers, that order had informed Larkin that
he had 30 days to file “an” appeal. See id. The court found that this failure to
inform Larkin of the need to file separate appeals from the single order
disposing of two criminal docket numbers constituted a breakdown in court
operations, and we therefore declined to quash the appeal. See id. at 353-
354.
Here, our review of the May 10, 2022 order and the VOP hearing notes
of testimony reveal that the court did not inform O’Donnell of her appellate
rights in the order or at the hearing, including her right to file notices of appeal
from the judgment of sentence. By logical extension from Larkin, this
constitutes a breakdown in the court’s operations, and we can proceed to the
substance of O’Donnell’s appeal.
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Following the submission of the pro se filing which was treated as a
notice of appeal, the trial court directed O’Donnell to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. O’Donnell filed a statement pro
se. She raised six issues in the statement, including what appeared to be
allegations of misconduct and claims that her plea was involuntary, her
counsel had been ineffective, and certain evidence had been improperly
admitted. In response, the trial court stated:
[O’Donnell] makes numerous allegations of misconduct and
conspiracy by parties ranging from the District Attorney to
probation officers and the Court itself. None of her writings contain
legally cognizable claims for the Superior Court to consider and,
accordingly[,] it ought to be dismissed. The Superior Court has
held that an appeal from a judgment of sentence imposed after
the revocation of probation or parole is limited to the validity of
the revocation proceedings and the legality of the final judgment
of sentence. A cursory review of the record in this case clearly
establishes that the revocation proceedings on May 10, 2022 were
valid and that the Court’s decision to recommit [O’Donnell] to jail
pending the establishment of a valid home plan was manifestly
legal.
Statement in Lieu of Opinion, 11/15/2022, at 2 (quotation marks and citation
omitted).
Counsel filed a motion to withdraw from representation, which the trial
court granted and then appointed new counsel. Counsel filed an Anders brief.
In the brief, counsel identified several claims O’Donnell wished to raise on
appeal, including that the trial court abused its discretion by imposing an
excessive sentence and then ordering her to serve the balance of that
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sentence following the VOP hearing, that her guilty plea had been involuntary,
and that plea counsel had provided ineffective assistance.
Counsel reviewed each of the issues in his brief, and concluded that the
issues were meritless. He asserted there were no other non-frivolous issues
to appeal, and therefore, filed an application to withdraw from representation
along with his Anders brief. As a threshold matter, we have reviewed
counsel’s brief and application and conclude that they meet the requirements
set forth for counsel seeking to withdraw from representation on direct appeal.
See Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).2
Accordingly, we turn to our own review of the appeal to determine if it is
wholly frivolous. See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.
Super. 2007) (stating that once this Court determines that counsel's
application and brief satisfy Anders, the Court must then conduct its own
review of the appeal to determine if it is wholly frivolous).
In doing so, we agree with the trial court and O’Donnell’s counsel that
there are no non-frivolous issues to raise on appeal.
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2 Specifically, counsel seeking to withdraw from representation on direct
appeal under Anders must file a brief that: 1) provides a summary of the
procedural history and facts; 2) refers to anything in the record that counsel
believes arguably supports the appeal; and 3) sets forth counsel’s conclusions
that the appeal is frivolous, and the reasons for that conclusion. See id.Counsel must also provide a copy of the Anders brief to his client, with an
accompanying letter that advises the client of his right to: 1) retain new
counsel to pursue the appeal; 2) proceed pro se; or 3) raise additional points
deemed worthy of the Court’s attention. See id. at 880. Counsel for O’Donnell
substantially complied with these requirements here.
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First, counsel addresses O’Donnell’s apparent assertion that her original
sentence was excessive and the trial court abused its discretion in
recommitting her to that sentence following her VOP hearing. Counsel notes
that O’Donnell did not file post-sentence motions or a notice of appeal from
the sentence when it was originally imposed, and therefore has waived a claim
that such a sentence, which was in the standard range of the sentencing
guidelines, was excessive and constituted an abuse of the trial court’s
discretion. See Pa.R.A.P. 902, 903; Pa.R.Crim.P. 720(A). We also note that
O’Donnell did not include a claim that her sentence was excessive in her
Pa.R.A.P. 1925(b) statement, and it is waived for that reason as well. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
And, as the trial court noted, it revoked O’Donnell’s parole based on
evidence that she did not report to the DRC and tested positive for alcohol, in
clear violation of her conditions of parole. Once the court revoked O’Donnell’s
parole, the only option it had was to recommit O’Donnell to serve the original
sentence. See Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super.
2008).
Of course, O’Donnell may again be paroled at a later point. See id. The
court specifically informed O’Donnell that she could once again petition for
parole and be released to the DRC once she had a verified home plan. The
court noted at the time of writing its Pa.R.A.P. 1925(a) statement that
O’Donnell had not done so.
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Based on the above, we fail to see how O’Donnell’s claim challenging
the discretionary aspects of the trial court’s original sentence could offer her
any basis for relief.
Counsel also maintained in his brief that any claim that O’Donnell’s plea
was involuntary is waived as she did not challenge the validity of her plea until
the instant appeal. As such, she did not object to the validity of her plea during
her colloquy or file a motion to withdraw the guilty plea. See Commonwealth
v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (stating that a defendant
who wishes to challenge the voluntariness of her guilty plea must either object
during the colloquy or file a motion to withdraw the plea within ten days of
sentencing and failure to employ either measure results in waiver). Even if
this issue were not waived, we note that the court conducted a full colloquy
of O’Donnell prior to accepting her guilty plea. See N.T., 2/25/2022, at 2-9.
We therefore agree with counsel that O’Donnell’s belated claim that her plea
was involuntary does not offer any basis for relief.
Counsel also explains that although O’Donnell apparently wishes to
challenge the admissibility of certain evidence, she does so for the first time
on appeal. She did not raise any such challenges to the introduction of
evidence before the trial court. Therefore, this claim is also waived. See
Pa.R.A.P. 302(a).
Counsel also points out that O’Donnell complains generally of ineffective
representation by counsel, but notes that ineffectiveness claims are generally
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deferred until collateral review. See Commonwealth v. Holmes, 79 A.3d
562, 576 (Pa. 2013). And the circumstances of this appeal do not justify the
application of any of the exceptions to this general rule. See id. at 563-564.
We agree with O’Donnell’s counsel that the issues raised in the Anders
brief are without merit. We have reviewed the record and the appeal and do
not see any other claims that are non-frivolous. Accordingly, we grant
counsel’s application to withdraw and affirm the judgment of sentence.
Application to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2023
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