Com. v. Thompson, D. ( 2023 )

J-A28045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEANNA M. THOMPSON :
:
Appellant : No. 1376 EDA 2022
Appeal from the Judgment of Sentence Entered April 8, 2022
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002162-2021
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 21, 2023
Deanna M. Thompson appeals from the judgment of sentence, entered
in the Court of Common Pleas of Chester County, following her entry of a
hybrid guilty plea. Thompson’s counsel, Brian L. McCarthy, Esquire, has filed
an application to withdraw as counsel and an accompanying Anders1 brief.
Upon review, we affirm Thompson’s judgment of sentence and grant Attorney
McCarthy’s application to withdraw.
The trial court summarized the factual background as follows:
On September 4, 2019, it was reported to the Kennett Square
Police Department that a burglary had occurred at 424 South
Union Street, a property owned by Charles Thompson [(victim)].
At that time, [the victim] was incarcerated and the residence was
vacant. Neighbors reported that [victim]’s sister, [defendant],
had been seen at the residence shortly after the break-in was
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1 Anders v. California, 368 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009).
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discovered. An investigation revealed that numerous items
belonging to [the victim] were pawned by [the defendant] without
[the victim’s] permission. A further investigation revealed that
[the defendant] fraudulently used [the victim]’s bank account to
pay her personal expenses.
Trial Court Opinion, 7/12/22, at 1 (unpaginated).
Thompson was charged with one count each of dealing in proceeds of
unlawful activities,2 theft by unlawful taking,3 receiving stolen property,4 and
access device fraud.5 On January 26, 2021, Thompson filed a motion to
suppress, but withdrew that motion prior to a hearing on February 1, 2021.
Subsequently, on December 17, 2021, Thompson entered into a hybrid
guilty plea wherein she agreed to plead guilty to theft by unlawful taking and
access device fraud. In exchange, the Commonwealth withdrew the remaining
charges. There was no agreement as to sentencing. On December 17, 2021,
the trial court conducted a guilty plea hearing at which it accepted Thompson’s
plea, deferred sentencing, and ordered the preparation of a pre-sentence
investigation report (PSI).
On April 8, 2022, the trial court sentenced Thompson on her conviction
for theft by unlawful taking to a period of 3 to 23 months in prison, followed
by two years of probation. At her conviction for access device fraud, the trial
court sentenced Thompson to four years of probation. Thompson’s sentences
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2 18 Pa.C.S.A. § 5111(a)(1).
3 Id. at § 3921(a).
4 Id. at § 3925(a).
5 Id. at § 4106(a)(1)(iv).
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were imposed consecutively, resulting in an aggregate term of 3 to 23 months
in prison followed by 6 years of probation. The trial court also ordered that
Thompson pay restitution to the victim, in the amount of $28,412.00, and that
Thompson was to be paroled upon reaching her three-month minimum.
Thompson filed a timely post-sentence motion, which the trial court
denied on April 21, 2022. Thompson filed a timely notice of appeal, and both
Thompson and the trial court have complied with Pa.R.A.P. 1925. On appeal,
Attorney McCarthy filed an Anders Brief. Thompson has not retained
alternative counsel, nor has she filed a pro se response.
Before addressing Thompson’s issue on appeal, we must determine
whether Attorney McCarthy has complied with the dictates of Anders and its
progeny in petitioning to withdraw from representation. See
Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009)
(“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 that an appeal is frivolous and
wishes to withdraw from representation, he or she must:
(1) petition the court for leave to withdraw[,] stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous[;] (2) file a brief referring to any issues in the
record of arguable merit[;] and (3) furnish a copy of the brief to
defendant and advise [her] of [her] right to retain new counsel or
to raise any additional points that [she] deems worthy of the
court’s attention. The determination of whether the appeal is
frivolous remains with the [C]ourt.
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Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper 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, 978 A.2d at 361.
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, this Court must then “conduct a simple review of
the record to ascertain if there appears[,] 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) (en
banc).
Instantly, our review of counsel’s Anders brief and application to
withdraw reveals that Attorney McCarthy has substantially complied with the
technical requirements of Santiago. See Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa. Super. 2007) (counsel must substantially comply with
requirements of Anders). We note that counsel frames the issue in terms of
whether it has merit. However, in the argument section, counsel identifies
the potential issue to be raised, cites to the record where appropriate, and
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concludes that the issue is frivolous. Additionally, counsel included the
requisite Pa.R.A.P. 2119(f) statement for Thompson’s claim, which challenges
the discretionary aspects of her sentence. The record further reveals that
counsel has furnished a copy of the Anders brief to Thompson, advised
Thompson of her right to retain new counsel or proceed pro se, or raise any
additional points that she deems worthy of this Court’s attention. Thus,
Attorney McCarthy has substantially complied with the requirements for
withdrawing from representation and, therefore, we will examine the record
and make an independent determination of whether Thompson’s appeal is, in
fact, wholly frivolous. See Wrecks, supra.In the Anders brief, Attorney McCarthy raises one claim for our review,
whether the trial court abused its discretion in sentencing Thompson. Anders
Brief, at 15-17. However, Attorney McCarthy contends that this claim is
ultimately frivolous because the trial court considered all mitigating factors,
including the PSI, and sentenced Thompson leniently. Id.Thompson’s claim challenges the discretionary aspects of her sentence,
from which there is no automatic right to appeal. See Commonwealth v.
Austin, 66 A.3d 798, 807-08 (Pa. Super. 2013). Rather, when an appellant
challenges the discretionary aspects of her sentence, we must consider her
brief on this issue as a petition for permission to appeal. Commonwealth v.
Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997). Prior to reaching the merits of
a discretionary sentencing issue,
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[this Court conducts] a four-part analysis to determine: (1)
whether the appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Thompson filed a timely notice of appeal, preserved her claim in
a timely post-sentence motion, and properly included a Pa.R.A.P. 2119(f)
statement in the Anders Brief. However, Attorney McCarthy has contended
that the bald claim of abuse of discretion cannot satisfy the substantial
question requirement to invoke this Court’s jurisdiction. Anders Brief, at 15-
17; see Moury, supra. We agree that Thompson has not raised a substantial
question for this Court and, thus, her appeal is wholly frivolous.
Nevertheless, we review the merits of Thompson’s claim as part of our
independent review of the record. See Dempster, supra. Our review of the
record reveals that, at sentencing, the trial court stated that it considered
Thompson’s pre-sentencing memorandum, letters from Thompson’s and the
victim’s family, and acknowledged Thompson’s community work. N.T.
Sentencing Hearing, 4/8/22, at 23-25. The trial court also heard from the
victim, who detailed the significant financial damage Thompson’s actions
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caused to him and his children.6 See id. at 10-18. Additionally, the trial court
expressly stated that it had considered Thompson’s PSI, and that Thompson
had no prior criminal record. See id. at 1; see also Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988) (where sentencing court considered PSI,
this Court presumes that it “[is] aware of relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors”). Accordingly, Thompson’s claim lacks merit.
Finally, our independent review of the record discloses no other
“arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Dempster, 187 A.3d at 272. As such, we grant Attorney
McCarthy’s application to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Application to withdraw granted.
Judge Sullivan did not participate in the consideration or decision of this
case.
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6Although the victim was incarcerated at the time Thompson committed these
offenses, Thompson nevertheless stole several thousands of dollars in family
heirlooms, other valuables, and money from the victim’s residence. Id. at
15-18. The victim indicated that all of these items and money were being
saved for the future of his children after his passing. Id. at 12-14. The victim
also detailed that Thompson illegally changed his mailing address to
Jacksonville, Florida, and stressed to the trial court the difficulties he had in
correcting that change. Id. at 10-12, 14-16.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2023
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