Com. v. Passmore, R. ( 2022 )

J-A08042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT WAYNE PASSMORE JR. :
:
Appellant : No. 895 WDA 2021
Appeal from the Judgment of Sentence Entered June 14, 2021
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000698-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT W. PASSMORE, JR. :
:
Appellant : No. 896 WDA 2021
Appeal from the Judgment of Sentence Entered June 14, 2021
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000867-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT W. PASSMORE, JR. :
:
Appellant : No. 897 WDA 2021
Appeal from the Judgment of Sentence Entered June 14, 2021
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0001378-2020
J-A08042-22
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: June 24, 2022
Consistent with this panel’s prior memorandum of April 5, 2022, Jendi
Schwab, Esquire (Counsel), counsel for Robert Wayne Passmore, Jr.
(Appellant), has filed an amended Anders brief and petition to withdraw from
representation.1 We now address the merits of Appellant’s appeal from the
judgments of sentence entered across three trial dockets in the Clearfield
County Court of Common Pleas, following his guilty pleas to terroristic threats,
criminal trespass,2 and related offenses. We affirm the judgments of sentence
and grant Counsel’s petition to withdraw.
I. Procedural History
Preliminarily, we note the trial court did not issue any Pa.R.A.P. 1925(a)
opinion in this matter.3 Appellant was charged across three dockets for
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1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). The Commonwealth has not filed an
appellee’s brief.
2 18 Pa.C.S. §§ 2706(a)(1), (3), 3503(a)(1)(i).
3 Pa.R.A.P. 1925(a)(1) provides:
[I]f the reasons for the order do not already appear of record, [the
trial court] shall . . . file of record at least a brief opinion of the
reasons for the order, or for the rulings or other errors complained
of, or shall specify in writing the place in the record where such
reasons may be found.
(Footnote Continued Next Page)
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separate incidents spanning a four-month period. On June 14, 2021,
Appellant appeared with present counsel, an assistant Public Defender, for a
combined negotiated plea and sentencing hearing. The parties agreed to a
recommended aggregate minimum sentence of 16 months’ incarceration, with
the trial court to determine the maximum sentence. N.T. Sentencing,
6/14/21, at 3. Counsel argued for a maximum sentence of three or four years.
Id. at 8. Meanwhile, the county probation office’s pre-sentencing
investigation report (PSI) recommended a maximum sentence of five years.
See id. at 8; Anders Brief at 11. We now review the facts at each docket in
detail.
At CP-17-CR-0000698-2020 (Docket 698), the Commonwealth alleged
that on July 8, 2020, Appellant: was standing on the roadway in Knox
Township, Clearfield County; appeared to be intoxicated; and pointed what
appeared to be a handgun at vehicles. Affidavit of Probable Cause, Exh. to
Criminal Complaint, Docket 698, 7/16/20. When Pennsylvania State Troopers
arrived, Appellant did not comply with their verbal commands. He also waved,
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Pa.R.A.P. 1925(a)(1). See also Commonwealth v. DeJesus, 868 A.2d 379,
383 (Pa. 2005) (purpose of Pa.R.A.P. 1925(a) is to facilitate appellate review
of a particular trial court order, and provide the parties and the public the legal
basis for a judicial decision). However, we reiterate that in this case, Counsel
responded to the trial court’s Rule 1925(b) order by filing a statement of intent
to file an Anders brief.
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and then threw toward them, the object appearing to be a handgun. Id. “The
believed handgun was recovered and [found to be] a folding knife[.]” Id.For this incident, Appellant pleaded guilty, and was sentenced, to: (1)
terroristic threats,4 a misdemeanor of the first degree (M1) — eight months
to five years’ imprisonment; (2) two counts of recklessly endangering another
person (REAP),5 misdemeanors of the second degree (M2) — two terms of
eight months to two years, to run concurrent with the first sentence; and (3)
the summary offenses of public drunkenness and obstructing highways 6 — $1
fines plus costs.
At the second docket, CP-17-CR-0000867-2020 (Docket 867), the
Commonwealth alleged that on August 12, 2020, Appellant, who was “recently
discharged” from the hospital, kicked open the door to a residence and entered
the home. Affidavit of Probable Cause, Exh. to Criminal Complaint, Docket
867, 8/21/20. He had no connection to the home or the tenant. Id. Appellant
pleaded guilty to, and received sentences of: (1) criminal trespass, a felony
of the third degree (F3) — eight months to five years’ imprisonment, to be
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4 18 Pa.C.S. § 2706(a)(3).
5 18 Pa.C.S. § 2705.
6 18 Pa.C.S. §§ 5505, 5507(a).
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served consecutive to the above sentences; and (2) the summary offenses of
public drunkenness and criminal mischief7 — $1 fines plus costs.
Finally, at docket CP-17-CR-0001378-2020 (Docket 1378), the
Commonwealth alleged that while Appellant was an inmate at Clearfield
County Jail on November 3, 2020, he refused to comply with corrections
officers’ commands. Affidavit of Probable Cause, Exh. to Criminal Complaint,
Docket 1378, 12/21/20. Appellant was “yelling[,] causing a scene,” and
becoming “aggressive.” Id. An officer “deployed OC gel,” and Appellant hit
the officer in the nose with a closed fist. Id. Appellant also “made several
threats about finding [the officer] on the streets[.]” Id. Appellant pleaded
guilty to: (1) terroristic threats, an M1; and (2) simple assault,8 an M2. The
trial court imposed terms of five months to two years’ imprisonment for each
offense, to run concurrently with the above sentences.
In sum, with respect to the aggregate minimum sentence, the trial
court imposed the parties’ agreed-upon term of 16 months’ imprisonment.
However, the aggregate maximum sentence was 10 years, twice the
recommended five years’ term in the PSI, and more than Appellant’s
requested three or four-year maximum term. We further note the trial court
imposed the statutory maximum sentences for one terroristic threats (M1)
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7 18 Pa.C.S. § 3304(a).
8 18 Pa.C.S. § 2701(a)(1).
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count, both REAP (M2) counts, and simple assault (M2).9 However, the court
did not impose the statutory maximum for the remaining count of terroristic
threats (M1) nor criminal trespass (F3).10
Appellant filed counseled, timely, virtually identical post-sentence
motions at all three dockets, which requested shorter maximum sentences.
The trial court conducted a brief hearing on July 12, 2021, denying relief.11
On July 16th, the trial court issued three separate orders denying Appellant’s
motions, concluding the maximum sentences were “fit and appropriate given
all circumstances.”12 See Order, Docket 698, 7/16/21; Order, Docket 867,
7/16/21; Order, Docket 1378, 7/16/21.
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9 See 18 Pa.C.S. § 1104(1) (maximum sentence for an M1 is five years’
imprisonment), 1104(2) (M2 — two years’ imprisonment).
10See 18 Pa.C.S. § 1103(3) (maximum sentence for an F3 is seven years’
imprisonment).
11Appellant did not appear at this post-sentence hearing, although Counsel
was present.
12 As the trial court issued three separate orders, Walker is not implicated.
See Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (“[W]here a
single order resolves issues arising on more than one docket, separate notices
of appeal must be filed for each case.”), overruled in part, Commonwealth
v. Young, 265 A.3d 462, 477 (Pa. Dec. 22, 2021) (reaffirming that Pa.R.A.P.
341 requires separate notices of appeal when single order resolves issues
under more than one docket, but holding Pa.R.A.P. 902 permits appellate
court to consider appellant’s request to remediate error when notice of appeal
is timely filed). In any event, as we state infra, Appellant properly filed three
separate notices of appeal.
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Appellant timely filed three separate notices of appeal. In lieu of
Pa.R.A.P. 1925(b) statements of errors complained of on appeal, Counsel filed
a statement of intent to file an Anders petition. See Pa.R.A.P. 1925(c)(4).
This panel reviewed Counsel’s initial Anders petition and brief and
observed Counsel had not requested transcription of the plea or sentencing
hearing, the trial court had not filed an opinion, and the Commonwealth did
not file a brief. Accordingly, on April 5, 2022, this panel directed Counsel to
obtain the missing notes of testimony and then either file a proper Anders
petition and brief or advisement of intent to file an advocate’s brief. Counsel
has filed an amended Anders petition and brief, as well as copies of the
plea/sentencing and post-sentencing hearing transcripts. As stated above,
the Commonwealth has not responded.
II. Anders Petition to Withdraw & Brief
“This Court must first pass upon counsel’s petition to withdraw before
reviewing the merits of the underlying issues[.]” Commonwealth v.
Orellana, 86 A.3d 877, 879 (Pa. Super. 2014). To withdraw pursuant to
Anders, counsel 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 him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. . . .
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Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted). In addition, pursuant to Santiago, counsel’s 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.
Commonwealth v. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017),
quoting Santiago, 978 A.2d at 361. If this Court determines that counsel has
satisfied the technical requirements of Anders and Santiago, we then
conduct an independent review of the record to discern if there are non-
frivolous issues. Schmidt, 165 A.3d at 1006 (citation omitted).
Here, Counsel’s petition to withdraw averred they: (1) “conducted a
thorough review . . . of the record[,] found no merit in any . . . potential
issues,” and believe “the appeal is frivolous;” and (2) advised Appellant of his
right to retain new counsel and raise any additional points. Counsel’s Petition
to Withdraw as Counsel, 5/11/22, at 1-2. Counsel attached a copy of a letter
sent to Appellant, which advised of their conclusion that Appellant’s issues
would have no merit, and that Appellant had a right to retain private counsel
or proceed pro se. Appellant has not filed any response, pro se or counseled.
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In the amended Anders brief, Counsel presents two sentencing issues
(discussed infra), with discussion of relevant authority, and explains why they
believe the issues or the appeal are wholly frivolous. Anders Brief at 14-21.
We determine Counsel has complied with the technical requirements of
Anders and Santiago, and thus now independently review whether
Appellant’s sentencing issues are frivolous, and whether there are any non-
frivolous appellate issues. See Schmidt, 165 A.3d at 1006.
III. Appellant’s Sentencing Issues
First, Counsel raises Appellant’s desired claims that his aggregate
maximum sentence of ten years violated the terms of the plea agreement.
We note:
“In determining whether a particular plea agreement has been
breached, we look to ‘what the parties to this plea agreement
reasonably understood to be the terms of the agreement.’” Such
a determination is made “based on the totality of the surrounding
circumstances,” and “[a]ny ambiguities in the terms of the plea
agreement will be construed against the [Commonwealth].”
Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en
banc) (citations omitted).
Here, Counsel points out that the written plea colloquy, signed by
Appellant, specified, “[Appellant] to receive a minimum period of 16 months
incarceration. Maximum to the Court. . . .” Anders Brief at 14, quoting
Negotiated Plea Agreement & Guilty Plea Colloquy, 5/6/21, at 2 (some
capitalization removed). At the combined plea and sentencing hearing, the
Commonwealth confirmed this agreement: “The plea calls for a minimum
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period of 16 months’ incarceration, with the maximum and all other terms to
the Court.” N.T., 6/14/21, at 3. Furthermore, the written plea colloquy set
forth the maximum sentences of each charge, and in the oral plea colloquy at
the plea hearing, Appellant affirmed that he understood “the maximum
possible sentence . . . that may be imposed, as . . . set forth on the first page
of the plea agreement.” See N.T., 6/14/21, at 6. Accordingly, the record
does not support a claim that the parties agreed to any maximum term in
their plea deal, and we agree with Counsel that this claim is frivolous. See
Hainesworth, 82 A.3d at 447; Anders Brief at 15.
Next, Counsel presents Appellant’s desired claim that his maximum
sentences exceeded the legal and statutory maximum limits. “When a trial
court imposes a sentence outside of the legal parameters prescribed by the
applicable statute, the sentence is illegal and should be remanded for
correction.” Commonwealth v. Foster, 960 A.2d 160, 165 (Pa. Super.
2008) (citation omitted).
Counsel explains the aggregate maximum sentence, 10 years, that
Appellant received is comprised of: (1) five years’ imprisonment, for terroristic
threats (M1) at Docket 698; and (2) a consecutive five years, for trespass (F3)
at Docket 867. These two sentences were within the statutory maximums of,
respectively, five years and seven years, for an M1 and F3. See 18 Pa.C.S. §
106(b)(4), (6); Anders Brief at 15-16. We agree with this analysis, and thus
likewise agree that any illegal sentence claim on this basis is frivolous.
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IV. Independent Review of Record
Having determined that Counsel has satisfied the technical requirements
of Anders and Santiago, we now conduct an independent review of the
record to discern if there are non-frivolous issues. See Schmidt, 165 A.3d at
1006 (citation omitted). We conclude there are none.
This Court has explained: “Generally, ‘upon entry of a guilty plea, a
defendant waives all claims and defenses other than those sounding in the
jurisdiction of the court, the validity of the plea, and what has been termed
the ‘legality’ of the sentence imposed[.]’” Commonwealth v. Jabbie, 200
A.3d 500, 505 (Pa. Super. 2018) (citation omitted). We have “established six
topics that must be covered by a valid plea colloquy: ‘1) the nature of the
charges, 2) the factual basis for the plea, 3) the right to a jury trial, 4) the
presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s
power to deviate from any recommended sentence.’” Id. at 506, citing, inter
alia, Pa.R.Crim.P. 590, cmt.
We have addressed Appellant’s sentencing claims above. With respect
to the validity of the plea, we observe Appellant completed separate written
plea colloquys at each docket. In each one, he indicated he understood each
of the six topics listed above. See Jabbie, 200 A.3d at 505. Appellant orally
affirmed the same at the plea and sentencing hearing. See N.T., 6/14/21, at
5-7. Appellant also agreed that he understood the terms of the plea
agreement, the permissible ranges of sentences, and the maximum possible
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sentences. Id. at 6. Accordingly, we would determine his pleas were validly
entered. See Jabbie, 200 A.3d 505.
V. Conclusion
In sum, we agree with Counsel that Appellant’s two desired sentencing
issues are frivolous, and conclude the record reveals no other potential, non-
frivolous issue for appeal. Accordingly, we grant Counsel’s petition to
withdraw from representation and affirm Appellant’s judgment of sentence.
Judgments of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2022
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