Com. v. Winters, A. ( 2019 )

J-S09017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGELA MARLENE WINTERS :
:
Appellant : No. 733 WDA 2018
Appeal from the Judgment of Sentence April 4, 2018
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-SA-0000048-2016
BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 27, 2019
Angela Marlene Winters appeals from the judgment of sentence, entered
in the Court of Common Pleas of Crawford County, following her conviction for
driving while her operating privileges were suspended or revoked (driving
under suspension, DUI related).1 On appeal, Winters challenges the
discretionary aspects of her sentence. After careful review, we affirm.
This case has a tortuous procedural history, complicated by Winters’ pro
se filings amid circumstances which made it unclear who, if anyone,
represented her. We previously summarized the factual background of this
case as follows:
On March 10, 2007, Winters was cited for driving under the
influence (DUI)—highest rate of alcohol. As a result, her license
was suspended for one year, effective April 21, 2009. Winters
____________________________________________
1 75 Pa.C.S.A. § 1543(b)(1)(i).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09017-19
became eligible to have her license restored on April 21, 2010, but
never took the necessary steps to do so.
On August 23, 2016, the Pennsylvania State Police cited Winters
for the act underpinning the instant conviction—driving under
suspension, DUI-related. In a November 3, 2016 letter to
Magisterial District Court, Winters contested the citation. Winters
failed to appear for her December 6, 2016 hearing; consequently,
Magisterial District Judge Lincoln S. Zilhaver sentenced her to the
mandatory minimum sentence of 60 days’ incarceration. Winters
petitioned for leave to appeal in forma pauperis on December 9,
2016, which the court granted on December 12, 2016. On
December 13, 2016, Winters filed a notice of appeal from her
summary criminal conviction.
Winter’s trial de novo was repeatedly rescheduled until April 4,
2018,[2] on which date, while represented by Assistant Public
Defender Gary A. Kern, Esquire, the Honorable Anthony J. Vardaro
found Winters in violation of section 1543(b) of the Motor Vehicle
Code and sentenced her to 60 days’ imprisonment, a $500 fine,
and associated court costs[.]
On April 25, 2018, Winters filed a pro se motion to modify
sentence, requesting house arrest in lieu of incarceration owing to
her physical ailments and the demands of caring for her five-year-
old son. The court docketed the motion, scheduled a hearing for
May 1, 2018, and provided notice to the public defender’s office
of Winters’ pro se filing by email. On April 27, 2018, Winters filed
a pro se petition under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, in which she alleged Attorney Kern had
refused to file an appeal and requested the assistance of new
counsel. That same day, Judge Vardaro dismissed Winters’ pro se
motion to modify sentence without a hearing, stating the motion
had been improperly filed in motions court and again notified the
public defender’s office of Winters’ pro se legal activity. On April
____________________________________________
2 Previously, this Court interpreted the trial court’s Pa.R.A.P. 1925(a) opinion
as indicating that no transcript of Winters’ sentencing hearing existed. See
Pa.R.A.P. 1925(a) opinion, 6/6/18, at 1 (“This [c]ourt does not have the
transcript of this matter at this time for the Court[.]”). Following remand, the
trial court indicated, in fact, it had produced a record of the hearing, but
Winters failed to comply with Pa.R.A.P. 905(a), which, inter alia, requires
appellants to order transcripts. Pa.R.A.P. 1925(a) opinion, 5/6/19, at 2.
-2-
J-S09017-19
30, 2018, Judge Vardaro permitted Winters to proceed in forma
pauperis on the PCRA petition, and appointed Edward J.
Hatheway, Esquire, as PCRA counsel. The court, however,
continued to notify the public defender’s office of Winters’ activity,
as Attorney Kern had not yet withdrawn as appellate counsel. On
May 4, 2018, Winters filed a timely pro se notice of appeal from
her April 4, 2018 judgment of sentence to the Superior Court.
Though Winters’ notice of appeal should have divested the trial
court of jurisdiction, on May 14, 2018, Attorney Hatheway, as
PCRA counsel, filed a Turner/Finley “no merit” letter and a
motion to withdraw, wherein he stated the following issues, raised
by Winters in her pro se filing, lacked merit:
1) Whether the defendant’s trial attorney was
ineffective in representing the defendant by failing to
urge the [c]ourt to sentence the defendant to house
arrest/electronic home monitoring as opposed to
incarceration for her conviction of [driving under
suspension]?
2) Whether the defendant’s trial attorney was
ineffective in representing the defendant by failing to
file an appeal to the Superior Court raising the issue
that the trial court had abused its sentencing
discretion by sentencing the defendant to 60 days of
incarceration for [driving under suspension]?
With respect to the first issue, Attorney Hatheway believed
Attorney Kern made Winters’ desire for house arrest clear to Judge
Vardaro at sentencing. Attorney Hatheway did not address the
merits of Winters’ second issue, making no statement as to
whether Attorney Kern failed to file an appeal. Instead, Attorney
Hatheway concluded Winters’ sentence was legal, stating “[t]he
Superior Court is not going to conclude that Judge Vardaro abused
his sentencing discretion[.]”
On May 15, 2018, Attorney Kern—who was still named on the
docket as Winters’ counsel of record—filed a petition to withdraw
as counsel. The following day, without holding a hearing or
notifying Winters, the court granted Attorney Kern’s petition to
withdraw as counsel. On May 18, 2018, Judge Vardaro granted
Attorney Hatheway’s motion to withdraw as PCRA counsel,
dismissed Winters’ PCRA petition, and construed Winters’ May 4,
-3-
J-S09017-19
2018 filing as a timely notice of appeal from her April 4, 2018
judgment of sentence.
Though the court found itself without jurisdiction to assess
Winters’ PCRA claim, it nonetheless offered its opinion on the
underlying issues. With respect to Attorney Kern’s failure to file
an appeal, the court stated, “the issue with regard to defense
counsel being ineffective in failing to file an appeal to the Superior
Court has been resolved since the defendant filed her own timely
notice of appeal[.]” With respect to Attorney Kern’s failure to
pursue house arrest, the court stated, “while we do not have a
transcript, our recollection is the Defendant’s attorney at the time
of sentencing argued for [h]ouse [a]rrest . . . and we rejected that
option.” Winters subsequently proceeded with her pro se direct
appeal; both Winters and the court complied with Pa.R.A.P. 1925.
On appeal, Winters challenges the discretionary aspects of her
sentence, arguing Judge Vardaro abused his discretion in
sentencing her to 60 days of incarceration rather than 60 days of
house arrest.
Commonwealth v. Winters, 733 WDA 2018, 2–7 (Pa. Super. filed 4/1/19)
(unpublished memorandum) (citations, quotations, and footnotes omitted).
We remanded this case to determine whether Winters preserved a claim
challenging the discretionary aspects of her sentence during her April 4, 2018
sentencing hearing. Id. at 10, 12. In the event Winters preserved her claim,
we instructed the court to determine whether Winters desired counsel, and if
so, to appoint counsel to proceed on her behalf. Id. at 12.
On April 29, 2019, the court held the requested hearing, during which
the assistant district attorney stated Winters’ trial counsel had preserved her
claim at sentencing by arguing in favor of house arrest. See N.T. Hearing,
4/29/19, at 3 (“Attorney Kern argued for house arrest on her behalf. I
distinctly remember that. So I think there’s no doubt the issue is preserved.”).
-4-
J-S09017-19
The court concurred with the district attorney’s assessment. Id. On May 6,
2019, the court issued an order stating Winters had preserved her claim and
appointing Joseph Ferguson, Esquire to represent her on appeal. Order,
5/6/19, at 1. Both Winters and the court timely complied with Pa.R.A.P. 1925.
Winters raised the following claim on appeal:
Was the sentence imposed by the [c]ourt an abuse of discretion
because imposing a sentence of total confinement without
adequately addressing the statutory framework behind the
defendant’s specific request for a house arrest sentence was
unreasonable and inconsistent with the fundamental norms
underlying the sentencing process?
Brief of Appellant, at 5.
Winters’ claim implicates the discretionary aspects of her sentence.
Such a challenge is not appealable as of right. Rather, an appellant must
petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.3
Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).
____________________________________________
3 Winters, while asserting her ability to challenge the discretionary aspects of
her sentence, candidly notes that 42 Pa.C.S.A. § 9781(b) contemplates
felonies and misdemeanors, not summary offenses. See Brief of Appellant,
at 13; see also 42 Pa.C.S.A. § 9781(b) (that “the defendant . . . may file a
petition for allowance of appeal of the discretionary aspects of a sentence for
a felony or a misdemeanor to the appellate court that has initial jurisdiction
for such appeals.”) (emphasis added).
We, nonetheless, consider Winters’ appeal under the above-mentioned,
framework for evaluating discretionary aspect claims. In Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987), our Supreme Court “examine[d] the
procedure by which [an appellant] obtained review[,]” and found it “significant
that Section 9781(b) specifies that allowance of appeal of the discretionary
aspects of sentence may be granted ‘where it appears that there is a
-5-
J-S09017-19
Before we reach the merits of this issue, we must engage in a
four[-]part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise statement raises
a substantial question that the sentence is appropriate under the
sentencing code. . . . [I]f the appeal satisfies each of these four
requirements, we will then proceed to decide the substantive
merits of the case.
Id. at 1042-43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013).
Here, Winters filed a post-sentence motion for reconsideration of her
sentence, followed by a timely notice of appeal. In addition, she has included
____________________________________________
substantial question that the sentence imposed is not appropriate under this
chapter.’ The chapter referred to is, of course, the entire sentencing code.”
Id. at 20 (quoting 42 Pa.C.S.A. § 9781(b)).
This Court has subsequently relied on Tuladziecki in applying the standard
framework for evaluating discretionary aspect of sentence claims to appeals
from summary convictions that implicate the Sentencing Code, including
sentences of incarceration for violations of driving while under suspension
under 75 Pa.C.S.A. § 1543. See Commonwealth v. Kraft, 737 A.2d 755,
757 (Pa. Super. 1999) (citing Tuladziecki, supra at 20) (finding driver
sentenced to 90 days’ incarceration for violating 75 Pa.C.S.A. § 1543 did not
raise a substantial question); see also Commonwealth v. Barzyk, 692 A.2d
211, 216 (Pa. Super. 1997) (citing Tuladziecki, supra at 20) (finding
Tuladziecki binding in context of summary offense where discretionary
aspect claim raised issue under sentencing code).
Winters has raised a claim implicating the court’s discretion under the
Sentencing Code. See Brief of Appellant, at 11–12 (asserting error under 42
Pa.C.S.A. § 9763(c)(1), a subsection of the Sentencing Code). We note the
incongruity inherent in analyzing a summary conviction under a framework
derived from 42 Pa.C.S.A. § 9781; we, however, feel obligated to do so under
the constraints of precedent, the factual circumstances before us, and in the
absence of objection to such analysis by either party. Kraft, supra at 757;
Barzyk, supra at 216.
-6-
J-S09017-19
in her brief a concise statement of reasons relied upon for appeal pursuant to
Pa.R.A.P. 2119(f). Accordingly, we must now determine whether Winters has
raised a substantial question for our review.
A substantial question requires a showing that “the sentence violates
either a specific provision of the sentencing scheme set forth in the Sentencing
Code or a particular fundamental norm underlying the sentencing process.”
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). We apply the
following standard:
In determining whether a substantial question exists, this Court
does not examine the merits of whether a sentence is actually
excessive. Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence, when it is
within the guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question determination does not
require the court to decide the merits of whether the sentence is
clearly unreasonable.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
Winters “contends that she was not given the opportunity to undergo a
drug and alcohol assessment pursuant to 75 Pa.C.S.A. § 3814. The benefit of
having undergone such an assessment would afford the appellant to be
sentenced to home confinement as permitted by 42 Pa.C.S.A. 9763(c)(1).”
Brief of Appellant, at 12. Winters’ Rule 2119(f) statement does not point to
any provision of the Sentencing Code4 which would entitle her to a drug or
alcohol evaluation. See Brief of Appellant, at 11–14. Winters’ claim,
____________________________________________
4The provision governing drug and alcohol assessments cited by Winters, 75
Pa.C.S.A. § 3814, is under the Motor Vehicle Code, not the Sentencing Code.
-7-
J-S09017-19
therefore, boils down to a complaint that she was not made eligible for a
discretionary, less restrictive sentence; consequently, she has failed to raise
a substantial question for our review.5 See Mouzon, supra at 627 (requiring
appellant highlight violation of Sentencing Code or fundamental norm).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2019
____________________________________________
5 We note “[t]he grant or denial of a defendant’s request for [county
intermediate punishment] is largely within the sound discretion of the trial
court.” Commonwealth v. Hoffman, 123 A.3d 1065, 1070 (Pa. Super.
2015). The court’s ability to afford defendants the opportunity to serve their
time under county intermediate punishment is limited by certain restrictions,
including the following: “[a]ny person receiving a penalty imposed pursuant
to 75 Pa.C.S.[A.] § 1543(b) (relating to driving while operating privilege is
suspended or revoked) . . . may only be sentenced to county intermediate
punishment after undergoing an assessment under 75 Pa.C.S. § 3814
(relating to drug and alcohol assessments).” 42 Pa.C.S.A. § 9763(c)(1)
(emphasis added). The plain meaning of this language does not render drug
and alcohol assessments mandatory. See Commonwealth v. Torres-
Kuilan, 156 A.3d 1229, 1231 (Pa. Super. 2017) (“[W]hen ascertaining the
meaning of a statute, if the language is clear, we will give the words their plain
and ordinary meaning.”).
-8-