Com. v. Gnacinski, M. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK A. GNACINSKI, JR.
Appellant No. 1768 WDA 2013
Appeal from the Judgment of Sentence of October 4, 2013
In the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0001036-2012
BEFORE: BENDER, P.J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED JULY 31, 2014
Mark Gnacinski, Jr., appeals his October 4, 2013 judgment of
regarding his entrapment defense, and he contests discretionary aspects of
Esq., has filed a petition to withdraw as counsel, together with an
1
Anders/Santiago We find that Mr. Vandeveld has satisfied the
Anders/Santiago requirements and that Gnacinski has no meritorious
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009).
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issues to pursue on appeal. Consequently, we grant Mr.
to withdraw2
The procedural history,3 as set forth by Anders/Santiago counsel
and as supported by the record, is as follows:
On July 26, 2013, a jury found [Gnacinski] guilty of receiving
stolen property, [18 Pa.C.S. § 3925]; the jury found [Gnacinski]
not guilty of the second count alleged in the information, and the
trial court subsequently declared a mistrial on the remaining four
counts. The Commonwealth later declined to prosecute
[Gnacinski] on the remaining counts, and on October 4, 2013,
[the trial court] sentenced [Gnacinski] to a term of nine to 20
months of incarceration, to be followed by 24 months of
probation.[4]
On October 10, 2013, [Gnacinski] filed a [counseled] motion to
modify his sentence . . .; the principal claim he advanced in his
motion was that his trial defense counsel was ineffective. The
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2
On July 14, 2014, during the pendency of this appeal, Emily Mosco
Merski, Esq., an attorney in private practice, filed a petition to withdraw as
counsel, citing the fact that Gnacinski presently is represented by the Erie
County Public Defender, and contending that, consequently, Gnacinski will in
no way be disadvantaged by her withdrawal. Mr. Vandeveld is among three
assistant public defenders who have been involved in this matter. Wayne
Johnson, Esq., filed the notice of appeal in this case. Later, after
Mr. half, Nicole Sloane,
Esq., another assistant public defender, entered her appearance. Ms. Merski
certainly is correct that Gnacinski is represented by the office of the Erie
County Public Defender. Consequently, we can discern no basis to compel
Ms. Merski to continue as, in effect, extra counsel for Gnacinski.
Consequently, we grant Ms.
Gnacinski.
3
The underlying factual background is immaterial to our disposition.
4
The sentencing order authorized work release.
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trial court denied the motion without comment the following day.
On November 1, 2013, [Gnacinski] filed the instant appeal.
On November 20, 2013, trial defense counsel for [Gnacinski],
attorney Wayne Johnson, Jr., filed a statement of intent to file
an [Anders/Santiago] brief,[5
primary claim of error involved allegations of ineffectiveness in
... Mr. Johnson also
averred that he had undertaken the requisite review of
record, and found there to be
no non-frivolous issues. Likewise, the undersigned [i.e.,
Mr. Vandeveld] has undertaken an exhaustive review of the
documents that exist in this case, the potential issues that might
have been presented for appeal, considered conscientiously and
comprehensively the facts and the law applicable to [this case],
and has concluded in the best exercise of his professional
judgment[] that the issues raised by [Gnacinski] sound more
properly in collateral claims of ineffective assistance of counsel,
and has therefore elected to follow the [Anders/Santiago]
procedure as well.
Brief for Gnacinski at 8-9.
Consistently with the above account, Mr. Vandeveld presents and
discusses the following issues for our consideration:
1. Whether the trial court erred in refusing to instruct the
jury that the affirmative defense of entrapment applied to the
sole count for which the jury convicted [Gnacinski], Receiving
Stolen Property . . . ?
2.
request to allow [him] to remain in Erie County Prison or release
him for some indefinite period for medical treatment?
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5
Because trial counsel filed a statement signaling his intent to proceed
under Anders and Santiago in lieu of a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), the trial court did
not file a Rule 1925(a) opinion.
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Brief for Gnacinski at 7.
As noted, Mr. Vandeveld has filed an Anders/Santiago brief and a
corresponding petition to withdraw as counsel, asserting that Gnacinski has
no non-frivolous issues to pursue on direct appeal. This Court first must
any potential issues that Gnacinski might present on appeal.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). Prior to withdrawing as counsel under Anders, counsel must file a
brief that meets the requirements established by our Supreme Court in
Santiago. Pursuant thereto, the brief must provide the following
information:
(1) a summary of the procedural history and facts, with
citations to the record;
(2) reference to anything in the record that counsel believes
arguably supports the appeal;
(3)
(4) 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.
Counsel also must provide a copy of the Anders brief to his client.
Attending the brief must be a letter that advises the client of his rights to
pro se on appeal;
or (3) raise any points that the appellant
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attention in addition to the points raised by counsel in the Anders
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007); see
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010). Finally,
to facilitat
attach to his petition to withdraw the letter he transmitted to his client. See
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Our review of Mr. ithdraw and the
accompanying brief demonstrates that he has complied with the
Anders/Santiago requirements. Counsel has provided a procedural history
detailing the events relevant to this appeal. Brief for Gnacinski at 8-9.
Mr. Vandeveld has set forth two issues for consideration, and evaluated
Id. at 10-12. Furthermore,
Mr. Vandeveld has addressed the requirements of Pa.R.A.P. 2119(f) relative
to the sentencing issue, thus recognizing that Gnacinski must establish a
substantial question regarding the challenged discretionary aspect of his
sentence in order to obtain review of the merits of that issue. Id. at 9-10.
Finally, after analyzing each issue on its own terms, Mr. Vandeveld has
provided a sepa
details his reasons for determining that both of the above-stated issues are
frivolous. Id. at 13-14. Mr. Vandeveld also has sent Gnacinski a letter
informing him that he has identified no meritorious issues to pursue on
representation, and that Gnacinski may find new counsel or proceed pro se.
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Mr. Vandeveld has attached the letter to his petition to withdraw, as required
by Millisock, supra. See Petition for Leave to Withdraw as Counsel,
3/28/2014, attachment (letter dated 3/27/2014). Accordingly, counsel has
complied with Anders/Santiago
In response to Mr. ed a
pro se Pro Se
wherein he presses the entrapment issue that Mr. Vandeveld deemed to be
frivolous. He presents the issue in two questions:
1. Whether the trial court erred in letting the decision go to
the jury instead of ruling Entrapment as a matter of law?
2. Whether the trial court erred in refusing to instruct the
jury that the affirmative defense of Entrapment applied to the
count for which the jury convicted [Gnacinski], Receiving Stolen
Property . . . .
Pro Se Brief for Gnacinski at 6. However, his arguments in support of these
issues is conclusory. See id. at 8-9.
Having passed upon the procedural requirements under Anders and
Santiago, we now must conduct an independent review of the record to
determine whether, as Mr. Vandeveld claims, this appeal is wholly frivolous,
or if there are meritorious issues for Gnacinski to pursue before this Court.
Santiago, 978 A.2d at 355 (quoting Anders
court not counsel then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous. If it so finds it
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...
presented by Mr. Vandeveld.
With regard to all entrapment issues, Mr. Vandeveld provides the
following analysis:
and during deliberations, that the affirmative defense of
entrapment applies to receiving stolen property charges . . .,
to give the instruction and did not object when the trial court
expressly stated its intention to instruct the jury in response to
pment
defense did not apply to receiving stolen property. The claim on
appeal was thus waived.
Brief for Gnacinski at 13 (citing Commonwealth v. Hodge, 411 A.2d 503,
506 n.8 (Pa. Super.
object to t
In point of fact, the trial court charged the jury regarding entrapment,
but expressly indicated to the jury that the defense of entrapment would not
apply to the charge of receiving stolen property, the only charge of which
Gnacinski ultimately was convicted. Notes of Testimony Afternoon Session,
7/24/2013, at 101-05. Gnacinski raised no contemporaneous objection.
During deliberations, the jury asked the court the following question:
consider entrapment, do we not consider any other charge, or can we pick
discussion with counsel, the trial court indicated that it would respond as
follows:
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[E]ntrapment, if established by a preponderance of the evidence,
is a defense to all the charges except the receiving stolen
property charge.
Now, I mentioned that to counsel earlier and I want to explain
my answer there. Receiving stolen property is a continuing
offense. It does not appear that even if they found entrapment
that would have anything to do with the receiving stolen
property.[6] But I do believe it would be applicable; that is,
entrapment, to the other charges.
Id. at 2-3. Neither party objected to the tri
Although Gnacinski pursues this issue further in his pro se brief, he
does not address Mr.
re
-deliberation inquiry on the same topic.7 Based upon our
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6
Our research has not disclosed any authority to this effect. However,
because we agree with counsel that Gnacinski failed to preserve the issue at
trial, whether such a principle applies (or should apply) under Pennsylvania
law is immaterial.
7
Gnacinski appears to present the issue that the trial court should have
directed his acquittal of all charges as a matter of law, based upon his
entrapment defense. Gnacinski aptly cites Commonwealth v. Medley, 725
A.2d 1225 (Pa. Super. 1999), for the proposition that the court may direct a
verdict of acquittal based upon entrapment when there is no dispute as to
the operative facts relating to the defense, and the undisputed evidence
points only to the conclusion that entrapment should be found as a matter of
law. See Pro se Brief for Gnacinski at 8-9; see also Medley, 725 A.2d at
1227. However, in applying Medley to the instant case, Gnacinski offers
no reasonable jury could Pro
se Brief for Gnacinski at 8-9. Absent a more developed argument supported
(Footnote Continued Next Page)
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review of the record, we agree that at no time did trial counsel preserve any
such objection. Accordingly, we may not consider that unpreserved issue on
direct appeal.8
This leaves only the sentencing issue proposed by Mr. Vandeveld,
which Gnacinski does not address in his pro se brief. Mr. Vandeveld
suggested that Gnacinski might raise the argument that the trial court
should have sentenced Gnacinski to probation rather than total confinement
manifestly excessive under the circumstances of this case.
A claim of manifest excessiveness implicates the discretionary aspects
Commonwealth v. Boyer, 856 A.2d 149, 151-52
(Pa. Super. 2004). We review challenges to the discretionary aspects of
Discretion is abused when the course pursued by the trial court
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
_______________________
(Footnote Continued)
by references to the record and on-point legal authority, we are constrained
to find that this issue is waived. See Pa.R.A.P. 2119; Commonwealth v.
Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008).
8
this issue at a later date under the auspices of the Post-Conviction Relief
Act, 42 Pa.C.S. §§ 9541, et seq., as one implicating the constitutional
effectiveness of trial counsel. However, ordinarily, and under these
circumstances, we may not consider challenges to the effectiveness of
counsel on direct appeal. See Commonwealth v. Padilla, 80 A.3d 1238,
1272 (Pa. 2013).
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applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.
Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998)
(citations, internal quotation marks, and brackets omitted).
Challenges to the discretionary aspects of sentencing do not
guarantee an appeal as of right. Commonwealth v. Sierra,
752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging
the discretionary aspects of his sentence must invoke this
-part test:
[W]e conduct a four-part analysis to determine:
(1) whether 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)
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. Evans, 901 A.2d 528, 533
(Pa. Super. 2006), appeal denied, 909 A.2d 303 (Pa. 2006)
(citations omitted).
When appealing the discretionary aspects of a sentence, an
brief a separate concise statement demonstrating a substantial
question as to the appropriateness of the sentence under the
Sentencing Code. Pa.R.A.P. 2119(f); Commonwealth v.
Mouzon, 812 A.2d 617 (Pa. 2002). The concise statement must
ng
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.
Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d
721, 727 (Pa. Super.), appeal denied, 759 A.2d 920 (Pa. 2000)).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825 (Pa. Super. 2007). A substantial question
that the se inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
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to the fundamental norms which underlie the sentencing
Sierra, supra at 912-13.
Commonwealth v. Prisk, 13 A.3d 526, 532-33 (Pa. Super. 2011) (citations
modified; bracketed modifications in Prisk).
Mr. Vandeveld duly has presented the issue in technical compliance
with the above-stated standard. In his Rule 2119(f) statement, he presents
ole argument: Gnacinski contends
that the trial court abused its discretion by declining to release Gnacinski for
medical treatment for tumors and hepatitis C. Brief for Gnacinski at 10.
Mr. Vandeveld observes that this was the sole sentencing challenge
presented by Gnacinski in his pro se motion to modify sentence. By way of
providing more detail, the motion specifically averred that Gnacinski sought
[Gnacinski] had [a] large tumor removed from [his] back on October 7,
2013[,] and needs [his] stitches removed [on] October 21, 2013[,] and
10/10/2013. Regarding Hepatitis C, Gnacinski averred that he was then
seeking medical advice from [a physician at] the Cleveland Clinic for this
disease and is receiving treatment and medical procedures from Dr. Kang of
Erie, [Pennsylvania,] for removal of multiple massive tumors throughout his
Id. respectfully but vociferously demand[ed] a
sentencing modification of home monitor or delayed sentencing until his
Id.
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In Commonwealth v. Ladamus, 896 A.2d 592 (Pa. Super. 2006),
the defendant sought a reduction in his guideline-minimum sentence based
upon his own medical condition and his status as the primary caregiver for
his mother. We found that the defendant had failed to present a substantial
egation of
excessiveness, because the defendant failed to explain how his sentence
violated a fundamental norm of the Sentencing Code. Id. at 596. We also
held generally that the specific challenges raised including the allegation
that it was an abuse of discretion for the trial court not to reduce the
simply did not present a
substantial question.
We find that the same principle applies in the instant case. First, it
appears that at least one of the specific concerns expressed by Gnacinski
the removal of his stitches has been mooted by the passage of time.
Second, while it is beyond cavil that the Eighth Amendment to the United
States Constitution requires that prisoners be provided adequate medical
care, , 838 A.2d 16, 20 (Pa. Cmwlth. 2003),
we are unaware of any authority entitling a defendant sentenced to total
confinement to continue receiving medical treatment from the provider or
providers of his choice.
In Commonwealth v. Dunlavey, 805 A.2d 562 (Pa. Super. 2002),
we addressed a post-imprisonment motion for a modification of sentence
from confinement to probation to facilitate treatment of a serious illness, as
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then provided for by 61 P.S. § 81.9 Section 81 provided that, upon an
adequate showing of illness and necessity, a prisoner could be removed from
a penal institution for purposes of obtaining medical care. We held that the
statute applied only to inmates who become seriously ill while in prison.
Dunlavey, 805 A.2d at 563-64. We further held that, in order to obtain
Id. at 564.
Although Dunlavey differed from the instant case in its procedural
posture and its factual circumstances, the principle remains clear that a
convicted, sentenced, and incarcerated inmate is entitled only to adequate
sub
judice, Gnacinski at no time alleged that institutional medical providers
would be unable to meet his medical needs.10 Consequently, we find that
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9
Section 81 since has been repealed and replaced. See Act of Aug. 11,
2009, P.L. 147, No. 33, § 4 (effective Oct. 13, 2009). Although the revision
materially altered the standard of proof by which a prisoner may establish a
basis for removal for purposes of medical treatment, see Commonwealth
v. Folk, 40 A.3d 169, 172 (Pa. Super. 2012), the distinction does not bear
on our analysis in the context of this case.
10
On July 14, 2014, during the pendency of this appeal, Gnacinski filed
pro se
a topic best suited to the
context of a petition for collateral relief under the PCRA, as explained
supra rs from Hepatitis C and some form of
Proceedings, 7/14/2014, at 1. As a general rule, this Court will not consider
pro se filings from parties who are represented by counsel, a circumstance
(Footnote Continued Next Page)
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Gnacinski failed to present a substantial question. See Ladamus, supra.
Moreover, even assuming arguendo that he presented such a question, the
record would not support a finding that the trial court abused its discretion in
refusing to grant Gnacinski the sentencing modification he requested.
We have conducted an independent review of the trial record in this
case and confirmed Mr. -frivolous
issues that Gnacinski may raise on direct appeal.
_______________________
(Footnote Continued)
See Commonwealth v. Jette, 23 A.3d 1032, 1044-45 (Pa. 2011);
Commonwealth v. Ellis, 626 A.2d 1137, 1140-41 (Pa. 1993). Ordinarily,
the proper practice is to refer the pro se filing to counsel of record, and to
take no further action on the pro se submission unless counsel forwards a
motion. Jette, 23 A.3d at 1044. Furthermore, our Supreme Court has held
-
rep Id.
In the Anders/Santiago context, however, counsel constructively
disclaims the obligation to advocate on behalf of his client. Notably, the
Anders/Santiago procedure allows and indeed invites the appellant to file
a pro se br
conclusion that no non-frivolous appeal will lie. Accordingly, we will assume
arguendo
merits. Nonetheless, we find that th
prior pro se allegations of inadequate medical care, which, taken as a whole,
do not change our conclusion that no non-frivolous argument regarding
sentencing excessiveness based upon an alleged failure of the prison system
to provide for his medical needs will lie under the circumstances of this case.
If, in fact, Gnacinski is being denied the care to which he is entitled, his
complaint properly lies with the Department of Corrections. He should
present the issue in due course to the appropriate administrative body or the
Pennsylvania Commonwealth Court in the first instance. On the record
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Judgment of sentence affirmed. Darrel
aw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2014
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