Com. v. Engle, S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SARA JOEL ENGLE :
:
Appellant : No. 1221 MDA 2019
Appeal from the Judgment of Sentence Entered July 25, 2018
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001523-2017
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 11, 2020
Sara Joel Engle appeals from the judgment of sentence imposed
following her open guilty plea to one count each of recklessly endangering
another person (“REAP”), and driving while operating privileges suspended –
DUI related. Additionally, Engle’s court-appointed counsel seeks to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant counsel permission to withdraw.
Engle was found driving her vehicle, with her two-year-old daughter in
the back seat, in the cemetery across from her house. When officers
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* Retired Senior Judge assigned to the Superior Court.
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approached she jumped out of the vehicle and appeared to be disoriented. At
the time, Engle’s driving privileges were suspended due to a prior conviction.
Engle was arrested and charged with numerous offenses. On May 23,
2018, Engel pled guilty to REAP and driving while operating privilege is
suspended, DUI related.1 Sentencing was deferred for preparation of a
presentence investigation report (“PSI”).
On July 11, 2018, the Commonwealth and defense counsel appeared for
sentencing. Engle did not appear and her counsel had no explanation for her
absence. The court granted defense counsel’s oral request for a continuance.
On July 25, 2018, the Commonwealth and defense counsel appeared for
sentencing. Engle failed to appear again without cause. A bench warrant was
issued. The court proceeded to sentence Engle in absentia to nine to twenty-
four month’s incarceration for REAP and a consecutive ninety days’
incarceration for driving while operating privilege is suspended, DUI related.
On August 1, 2018, Engle was arrested on the bench warrant and ordered to
begin her sentence on the above charges.
On August 6, 2018, Engle filed a post-sentence motion to modify
sentence, contending that her status as a mother, her abusive relationship
with the father of her child, and her mental health needs were a sufficient
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1 The Commonwealth agreed to dismiss all other charges in exchange for
Engle’s plea.
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basis for a modification to her sentence. The trial court denied the motion
after a hearing.
Despite Engle requesting an appeal be filed, the Public Defender’s office
failed to file an appeal on her behalf. Engel subsequently filed several motions
which the trial court treated as a first petition pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The trial court denied the
motions and appointed counsel to represent Engle in filing a PCRA petition. On
April 23, 2019, counsel filed an amended petition seeking reinstatement of
Engle’s direct appeal rights. The PCRA court granted relief and this timely
appeal followed.
We turn first to counsel’s petition to withdraw. 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, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). With respect to the third requirement of Anders,
that counsel inform the appellant of his or her rights in light of counsel’s
withdrawal, 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).
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An Anders brief must comply with the following requirements:
(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. “[I]f counsel’s petition and brief satisfy Anders,
we will then undertake our own review of the appeal to determine if it is wholly
frivolous.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(brackets added, citation omitted).
We find counsel has complied with the preliminary requirements of
Anders and Santiago. Counsel filed a petition to withdraw, certifying he has
reviewed the case and determined that Engle’s appeal is frivolous. Further,
counsel attached to his petition a copy of his letter to Engle advising her of
her rights. This Court entered an order advising counsel that his letter was
inadequate and directing counsel to file a letter in compliance with
Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016).
Counsel complied, filing a letter advising Engle of her immediate right
to proceed pro se and/or right to hire private counsel. Counsel also filed a
brief, which includes a summary of the history and facts of the case2, potential
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2 The summary of the procedural history and facts does not contain citations
to the record. However, we do not find this impairs our review of the case.
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issues that could be raised by Engle, and his assessment of why those issues
are meritless, with citations to relevant legal authority. Counsel has thus
complied with the requirements of Anders and Santiago. Engle did not file a
response. We may proceed to review the issue outlined in the Anders brief.
The only issue in the Anders brief presents a general challenge to the
discretionary aspects of Engle’s sentence.3 “A challenge to the discretionary
aspects of a sentence must be considered a petition for permission to appeal,
as the right to pursue such a claim is not absolute.” Commonwealth v.
McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-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) 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) (citation
omitted; brackets in original).
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3 As Engle entered an open guilty plea, she retained the right to challenge the
discretionary aspects of her sentence. See Commonwealth v. Luketic, 162
A.3d 1149, 1159 (Pa. Super. 2017) (holding that when a defendant enters
guilty plea which does not involve a plea bargain designating the sentence to
be imposed, he waives the right to challenge all non-jurisdictional defects
except the legality of the sentence and the validity of the plea, but retains the
right to challenge the discretionary aspects of his sentence).
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Here, Engle preserved her issue through a timely post-sentence motion
to modify sentence, and filed a timely appeal. However, counsel has failed to
include a Pa.R.A.P. 2119(f) statement. “Where counsel files an Anders brief,
this Court has reviewed the matter even absent a separate Pa.R.A.P. 2119(f)
statement. Hence, we do not consider counsel’s failure to submit a Rule
2119(f) statement as precluding review of whether Appellant’s issue is
frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015)
(citations omitted).
In her post-sentence motion, Engle requested a modification of her
sentence based on the fact that she wanted to be closer to her family,
specifically her two year old daughter, and that her physical and mental health
needs would be set back due to incarceration. In her 1925(b) statement, Engle
simply asserts that the trial court erred in denying her motion for post-
sentence relief challenging the discretionary aspects of her sentence without
further explanation. These claims do not raise a substantial question.
Even if Engle raised a substantial question, the issue is not meritorious.
Engle’s sentence is not clearly unreasonable. The court considered a pre-
sentence report and sentenced Engle within the standard sentencing range.
Moreover, the court explained its reasons for its sentence on the record. See
N.T., Sentencing, 7/25/2018, at 6-8 (taking note of the pre-sentence report,
prior record score, criminal history, and failure to appear for sentencing).
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In as much as Engle is claiming the court did not consider certain
mitigating evidence, she had three prior occasions to bring information to the
court – two scheduled sentencing hearings and a pre-sentence interview with
adult probation – all of which she failed to attend. Further, the court
specifically stated in its opinion that even considering the information Engle
alleges in her post-sentence motion, the court nevertheless believes the
sentence imposed is still appropriate.
Engle’s challenge to the discretionary aspects of her sentence is
meritless. Our independent review of the record reveals no other, non-
frivolous issues that she could raise on appeal.
We affirm Engle’s judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/11/2020
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