Com. v. Hoberek, C. ( 2022 )

J-A25013-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLARENCE R. HOBEREK :
:
Appellant : No. 67 WDA 2021
Appeal from the Judgment of Sentence Entered June 10, 2020,
in the Court of Common Pleas of Beaver County,
Criminal Division at No(s): CP-04-CR-0001689-2019.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: January 19, 2022
Clarence R. Hoberek appeals from the judgment of sentence imposed
following his conviction for DUI and related summary offenses. Additionally,
Hoberek’s counsel filed a petition to withdraw from representation and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). Upon review, we grant counsel’s petition, and affirm the judgment of
sentence.
Briefly, the facts are as follows. On July 2, 2019, Hoberek rear-ended
another vehicle on Midland Road in Beaver County, Pennsylvania. When
Officer Eric Cain arrived and spoke with Hoberek, he detected the odor of
alcohol. He also observed Hoberek stagger as he approached him. When the
officer asked Hobrek if he had been drinking, Hoberek initially said no, but
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* Retired Senior Judge assigned to the Superior Court.
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then admitted to drinking earlier that day. Hoberek was arrested. A blood
test revealed Hoberek had a BAC range of .15 to .18 percent. Upon further
investigation, Officer Cain also discovered that Hoberek’s driver’s license was
suspended, he was uninsured, and his vehicle was not registered. The officer
charged Hoberek with DUI and various summary offenses.
At trial, Hoberek testified and admitted that he was driving the night of
the accident and that he had been drinking beforehand. He also did not
dispute the blood test result. The jury found him guilty of DUI,1 and the trial
court found him guilty of the summary offenses.
The trial court sentenced Hoberek to 12 to 24 months’ incarceration
followed by 3 years of probation for the DUI and imposed fines for the
summary offenses. Hoberek filed a post-sentence motion, which the trial
court denied. No appeal was filed.
Following a pro se PCRA petition, the court reinstated Hoberek’s direct
appeal rights. Hoberek then filed this timely appeal.
Counsel filed a petition to withdraw from representation and an Anders
brief with this Court. Hoberek did not retain independent counsel or file a pro
se response to the Anders brief.
Before we may consider the issues raised in the Anders brief, we must
first consider counsel’s petition to withdraw from representation. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding
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1 75 Pa.C.S.A. § 3802(b)
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that, 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). 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
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 him of his right to retain new
counsel, proceed pro se, or raise any additional points 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
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issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, counsel did not comply with the Anders requirements. First,
counsel did not attach the Notification of Rights letter to his Petition to
Withdraw. Instead, he attached it to the Anders brief as Exhibit F. This Court
has held that counsel must “attach to their petition to withdraw a copy of the
letter sent to their client advising him or her of their rights.” Commonwealth
v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). Because it appears
counsel properly mailed Hoberek the letter, we will overlook the fact that
counsel attached it to the wrong document in the record.
Additionally, counsel’s brief does not substantially comport with our
standards. A proper Anders brief “articulates the issues in neutral form, cites
relevant legal authorities, references appropriate portions in the record to aid
our review, and concludes that, after a thorough review of the record, the
appeal is wholly frivolous.” Commonwealth v. Wrecks, 931 A.2d 717, 720
(Pa. Super. 2007). Counsel must set forth the issues that the defendant
wishes to raise and any other claims necessary to effectuate appellate
presentation of those issues. Commonwealth v. Smith, 700 A.2d 1301,
1303 (Pa. Super. 1997). While counsel need not raise issues if he believes
there are none, he should “flag” those issues and include relevant case
citations and references to the record. Id. at 1304.
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Here, counsel merely notes in the “Statement of Place of Raising or
Preservation of Issues” section of the brief that Hoberek claims he should not
have been convicted because he did not cause the accident. Counsel further
states that Hoberek’s sentence does not appear to be illegal. Counsel did not
identify or properly frame the issues Hoberek wished to raise. Counsel also
did not address Hoberek’s issues by citing relevant statutes or controlling case
law that led him to conclude the appeal is frivolous. See Santiago, 978 A.2d
at 361.
Nevertheless, we decline to remand the matter for counsel to correct
the deficiencies when this would serve no purpose other than to delay
resolution of this appeal and waste judicial resources.2 See e.g. In re
Adoption of V.G., 751 A. 2d 1174, 1178 (Pa. Super. 2000). Because we can
decipher the issues and they are patently frivolous, this matter presents a rare
instance where remand for a proper brief is not necessary. 3 We will address
the merits of Hobrek’s issues.
Hoberek first claims that there was insufficient evidence to convict him
of the various offenses, particularly DUI. Hoberek argues that the evidence
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2We note that prior to reinstatement of Hoberek’s direct appeal rights, counsel
had filed a petition to withdraw and an Anders brief with this Court. However,
due to various deficiencies the petition was denied and the brief was stricken.
3We direct counsel, in the future, to be more mindful of the Rules of Appellate
Procedure and to follow the dictates of Santiago.
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failed to establish that he caused the accident and therefore should not have
been found guilty of DUI. Anders Brief at 5.
In reviewing a sufficiency of the evidence claim, this Court:
must determine whether the evidence admitted at trial, as well as
all reasonable inferences drawn therefrom, when viewed in the
light most favorable to the verdict winner, are sufficient to support
all elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted). Any inferences “must flow from facts and circumstances proven in
the record, and must be of such volume and quality as to overcome the
presumption of innocence and satisfy the jury of an accused's guilt beyond a
reasonable doubt.” Commonwealth v. Scott, 597 A.2d 1220, 1221 (Pa.
Super. 1991). “The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail even under
the limited scrutiny of appellate review.” Id. “Because evidentiary sufficiency
is a question of law, our standard of review is de novo and our scope of review
is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).
To establish DUI (high rate) the Commonwealth must prove that the
defendant: 1) imbibed alcohol; 2) was driving, operating, or in actual physical
control of the movement of a vehicle on highway or trafficway; and 3) within
two hours after driving, operating or being in physical control of a vehicle, the
defendant’s BAC was at least .10 percent but less than .16 percent. 75
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Pa.C.S.A. § 3802(b); Commonwealth v. Haight, 50 A.3d 137, 141 (Pa.
Super. 2012).
Here, Hoberek admitted that he had three beers earlier the night of the
accident. Witnesses at the scene indicated that Hoberek smelled of alcohol
and was unsteady on his feet. Hoberek admitted that he was driving when he
rear ended the car in front of him. Finally, the blood test result indicated that
Hoberek’s BAC exceeded the .10 percent threshold required for a conviction.
The evidence further showed that the police complied with the two-hour time
frame. These facts were sufficient to establish the elements of DUI (high
rate).
Additionally, the trial court found Hoberek guilty of operating a vehicle
without insurance, driving while his license was suspended, and using an
illegal plate. The trial court noted that Hoberek’s “certified driving record
established that his driver’s license was suspended/revoked; [the officer’s]
testimony established that [Hoberek] neither had the car properly registered
nor insured; and [the officer’s] testimony established that a record check
revealed that the license plate on [Hoberek’s] vehicle was, in fact, registered
to a different vehicle.” These facts were sufficient to convict Hoberek of the
referenced summary offenses. Trial Court Opinion, 3/8/21, at 8.
We therefore conclude that Hoberek’s sufficiency claims are frivolous.
Next, we consider whether Hoberek’s sentence is illegal. It is unclear
whether Hoberek disputes the legality of his sentence, but since counsel briefly
referenced this potential issue, we will address it. See Hoberek’s Brief at 5.
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Here, Hoberek was sentenced to 12 to 24 months’ incarceration followed
by 3 years of probation for his DUI conviction. This was Hoberek’s third DUI
offense, which made it a first degree misdemeanor. The standard range was
12 to 18 months of incarceration with the maximum sentence being 5 years.
Hoberek’s sentence was clearly within the permitted parameters, and
therefore is legal.
We therefore conclude that Hoberek’s sentencing claim is frivolous.
Based upon the foregoing, we conclude that Hoberek’s claims on appeal
are frivolous. Further, in accordance with Dempster, we have independently
reviewed the certified record to determine if there are any non-frivolous issues
that counsel may have overlooked. Having found none, we agree that the
appeal is wholly frivolous. Consequently, we grant counsel’s petition to
withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2022
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