Com. v. Callendar, N. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NZINGA M. CALLENDAR :
:
Appellant : No. 3318 EDA 2019
Appeal from the Judgment of Sentence Entered October 16, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002863-2019
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 15, 2020
Appellant, Nzinga M. Callendar, appeals from the judgment of sentence
following the revocation of the intermediate punishment sentence imposed
after she was convicted of driving under the influence (“DUI”) – general
impairment.1 Additionally, Appellant’s counsel, Michael E. Brunnabend,
Esquire, filed a petition to withdraw from representation of Appellant and an
Anders brief.2 After careful review, we deny counsel’s petition to withdraw
and order counsel to submit an advocate’s brief or a new Anders brief within
30 days of the date of this memorandum.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(a)(1).
2 Anders v. California, 386 U.S. 738 (1967).
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On July 12, 2019, Appellant entered into a negotiated guilty plea to the
above-stated offense. Pursuant to the plea, the trial court sentenced
Appellant on that same day to a term of two years in the intermediate
punishment program with 90 days to be served on house arrest with electronic
monitoring.
An arrest warrant was issued on September 3, 2019 based on
Appellant’s failure to comply with the rules of house arrest. A Gagnon II3
hearing was held on October 16, 2019. At the hearing, Appellant conceded
that she violated the terms of her intermediate punishment. N.T., 10/16/19,
at 19. Following the hearing, the trial court issued an order revoking
Appellant’s sentence of intermediate punishment and resentencing her to 90
days to two years of imprisonment, followed by three years of probation. The
trial court directed that Appellant be immediately transferred to a community
corrections center and be awarded credit for all time spent in custody.
Appellant filed a timely appeal of the October 16, 2019 judgment of sentence.4
Before this Court can consider the merits of this appeal, we must first
determine whether Attorney Brunnabend has satisfied the requirements for
withdrawal. Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super.
2018) (en banc). To withdraw, counsel must (1) petition the court for leave
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3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4Appellant filed her concise statement of errors complained of on appeal on
December 10, 2019. The trial court issued its opinion on January 9, 2020.
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to withdraw stating that he has made a conscientious examination of the
record and has determined that the appeal would be frivolous; (2) provide a
copy of the Anders brief to the appellant; and (3) advise the appellant of her
right to retain new counsel or proceed pro se and to raise any additional points
that she deems worthy of the court’s attention. Id. at 1195-96.
In the Anders brief, counsel 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. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel has
satisfied the above requirements, it is then this Court’s duty to conduct our
own review of proceedings before the trial court and render an independent
judgment as to whether the appeal is wholly frivolous. Yorgey, 188 A.3d at
1196.
In this case, Attorney Brunnabend filed a petition to withdraw, wherein
he asserts that he has made a conscientious review of the record and
determined that Appellant’s appeal from the trial court’s October 16, 2019
judgment of sentence is frivolous. Counsel appended to the petition a copy
of an April 28, 2020 letter in which he provided Appellant with a copy of his
petition and Anders brief and advised her of her right either to retain new
counsel or to proceed pro se on appeal and raise any points she deems worthy
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of this Court’s attention.5 Petition to Withdraw, 5/1/20, Exhibit A. In the
Anders brief, Attorney Brunnabend summarized the procedural and factual
background of this case, stated that the sentencing issue Appellant sought to
raise was frivolous and that his review of the record revealed no other non-
frivolous appellate issues, and explained the reasons for these determinations.
We therefore conclude that Attorney Brunnabend has complied with the
requirements of Anders and Santiago and proceed to a review of the merits
of this appeal.
In the Anders brief, Attorney Brunnabend presents the issue that
Appellant sought to raise on appeal, namely:
Whether the lower court abused its sentencing discretion when,
after determination that [Appellant] had violated [her] probation,
the court sentenced her to an unduly harsh and manifestly
excessive sentence?
Anders Brief at 8 (unnecessary capitalization omitted).
The revocation of an intermediate punishment sentence is “equivalent
to the revocation of probation.”6 Commonwealth v. Melius, 100 A.3d 682,
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5Appellant did not file a pro se response nor did substitute counsel file an
appearance on her behalf in this Court.
6 Effective December 18, 2019, the General Assembly repealed the relevant
statutes authorizing the imposition – and modification or revocation – of the
state and county intermediate punishment programs. Act of December 18,
2019, P.L. 776, No. 115, §§ 4-5 (amending 42 Pa.C.S. § 9763 and repealing
42 Pa.C.S. §§ 9773, 9774); Commonwealth v. Hoover, 231 A.3d 785, 788
n.1, 790 (Pa. 2020) (opinion announcing judgment of the Court).
“[I]ntermediate punishment is now classified as a type of probation.” Hoover,
231 A.3d at 790 (citing 42 Pa.C.S. § 9763). As the imposition and revocation
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685 (Pa. Super. 2014); see also Commonwealth v. Flowers, 149 A.3d 867,
872–73 (Pa. Super. 2016). Thus, consistent with our standard of review in
an appeal from a sentence following revocation of probation, we review the
sentence imposed upon Appellant to determine whether the trial court
committed an error of law or an abuse of discretion. Flowers, 149 A.3d at
873. Our scope of review in such cases “includes the validity of the hearing,
the legality of the final sentence, and if properly raised, the discretionary
aspects of the appellant’s sentence.” Commonwealth v. Kuykendall, 2 A.3d
559, 563 (Pa. Super. 2010).
The sole issue raised in the Anders brief concerns the discretionary
aspects of Appellant’s sentence. A challenge to the discretionary aspect of a
sentence is not appealable as of right. Commonwealth v. Akhmedov, 216
A.3d 307, 328 (Pa. Super. 2019) (en banc).
Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
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of the intermediate punishment sentence preceded this amendment, our
review is not impeded by these statutory changes. Cf. id. (holding that,
because a trial court continues to have the authority to revoke an intermediate
punishment sentence “albeit now under the label of probation,” the issue
presented in that case related to the revocation of county intermediate
punishment remained justiciable).
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sentence appealed from is not appropriate under the Sentencing
Code[.]
Id. (citation omitted). A substantial question is present where the appellant
advances an argument that the sentence was inconsistent with a specific
provision of the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process. Id.Here, Appellant filed a filed a timely notice of appeal, the Anders brief
includes a Pa.R.A.P. 2119(f) statement, and the appellate issue raised in the
Anders brief presents a substantial question that this Court may review on
appeal. See Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016)
(stating that a claim that a violation of probation sentence “is manifestly
excessive such that it constitutes too severe a punishment raises a substantial
question”) (citation omitted). However, Appellant did not preserve her
discretionary sentencing issue at the sentencing hearing or in a motion to
modify or reconsider the sentence. “To properly preserve an issue challenging
the discretionary aspects of sentencing, a defendant must object and request
a remedy at sentencing, or raise the challenge in a post-sentence motion.”
Commonwealth v. Clary, 226 A.3d 571, 579 (Pa. Super. 2020). Failure to
preserve a discretionary sentencing issue before the trial court results in
waiver. Commonwealth v. Smith, 206 A.3d 551, 567 (Pa. Super. 2019).
An appellant cannot cure this waiver by including the challenge to the
discretionary aspects of sentencing in her Pa.R.A.P. 1925(b) statement.
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Commonwealth v. Padilla-Vargas, 204 A.3d 971, 976 (Pa. Super. 2019);
Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015).
In cases where appellate counsel petitions for withdrawal and files an
Anders brief, this Court has excused procedural errors by counsel in the
presentation of a discretionary sentencing issue as a result of the Court’s
obligation to independently review the record to determine whether any non-
frivolous issue is present. See Commonwealth v. Lilley, 978 A.2d 995, 998
(Pa. Super. 2009) (addressing discretionary sentencing claim despite
counsel’s failure to include a Pa.R.A.P. 2119(f) statement in Anders brief);
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)
(reviewing discretionary sentencing issue despite counsel’s failure to file a
court-ordered Pa.R.A.P. 1925(b) statement where appellate counsel had filed
a petition to withdraw and Anders required independent review of the
record). However, this Court has found that a failure to preserve a
discretionary sentencing claim with the trial court prior to appeal requires
dismissal even when such a claim is raised in the context of an Anders brief.
See Commonwelth v. Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013)
(en banc); Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super.
2008); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”); Commonwealth
v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020) (stating that the Hernandez
and Lilley decisions do not permit “this Court to address issues that were not
properly preserved in the trial court” and “the mere filing of an Anders brief
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and petition to withdraw will not serve to resuscitate claims that were already
waived upon the filing of the notice of appeal”). Accordingly, the claim that
Appellant’s sentence was unduly harsh and manifestly excessive is waived.
Having resolved that the issue raised by appellate counsel is frivolous,
we next conduct an independent review of the record to determine whether
there exist any other non-frivolous issues that Appellant could raise in this
appeal. Yorgey, 188 A.3d at 1196. Following our review, we conclude that
there exists a non-frivolous issue regarding the legality of Appellant’s
sentence. Appellant did not raise an issue related to the legality of her
sentence below, nor did she include this issue in her Pa.R.A.P. 1925(b)
statement. However, while appellate issues generally must be preserved in
the trial court at the earliest opportunity, “an exception to the issue-
preservation requirement exists where the challenge is one implicating the
legality of the appellant’s sentence.” Commonwealth v. Monarch, 200 A.3d
51, 56 (Pa. 2019) (citation omitted). Thus, an appellate issue related to the
legality of a sentence is “nonwaivable.” Id.In this case, Appellant pleaded guilty to count II of the information, DUI-
general impairment under Section 3802(a)(1) of the Vehicle Code, which was
graded as a misdemeanor of the first degree. 75 Pa.C.S. § 3802(a)(1);
Information, 7/12/19. Count II of the information provided that “this will
constitute [Appellant’s] 2nd offense for purposes of grading and penalty under
75 Pa.C.S. 3803 and 3804” and that “THIS VIOLATION RESULTED IN
REFUSAL.” Information, 7/12/19. At the guilty plea hearing, the assistant
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district attorney stated that, after Pennsylvania State Police troopers observed
Appellant driving in a car with a suspended registration,
They stopped her. They saw the glassy, bloodshot eyes and
smelled the alcohol.
She failed the field sobrieties. She ended up refusing the
chemical test. It’s the officer’s opinion she’s incapable of safe
driving.
N.T., 7/12/19, at 3-4 (emphasis added). Appellant confirmed that this was
the factual predicate for her plea. Id. at 4. The nature of the chemical testing
sought was not clarified at the plea hearing.7 However, the affidavit of
probable cause attached to the criminal complaint indicates that Appellant
performed a breath test at the scene of the traffic stop that detected the
presence of alcohol, but she later refused to submit to a blood test after being
advised of the appropriate implied consent warnings. Criminal Complaint,
Affidavit of Probable Cause, at 2.8 The complaint does not indicate that a
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7 The term “[c]hemical test or testing” is defined in the Vehicle Code as an
“[a]nalysis performed on a biological material, including but not limited to
breath, blood or urine, to determine the identity or concentration or both of
particular constituents such as alcohol or controlled substances.” 75 Pa.C.S.
§ 102.
8According to the criminal complaint, the arresting trooper “administered the
Portable Breath Test (P.B.T) to [Appellant] and the results showed a high
presence of alcohol.” Criminal Complaint, Affidavit of Probable Cause, at 2.
The trooper then transported her to a State Police processing center:
Upon arrival[, Appellant] read the Lehigh County DUI Processing Center
Blood Implied Consent Form. I advised [Appellant] that she has the
absolute right to refuse the test. [Appellant] refused to submit to a
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search warrant was obtained for a blood test, id., nor does a warrant appear
in the record.
The questions of whether Appellant refused a breath or blood test and,
if a blood test, whether a valid search warrant was obtained prior to testing
determine the grading of the DUI offense and the minimum and maximum
punishments that Appellant faced for her conviction. An individual convicted
of Section 3802(a)(1) with one prior conviction and who “refused testing of
breath or chemical testing pursuant to a valid search warrant, court order or
any other basis permissible by the Constitution of the United States and the
Constitution of Pennsylvania . . . commits a misdemeanor of the first degree.”
75 Pa.C.S. § 3803(b)(4). This individual would then be sentenced to “undergo
imprisonment of not less than 90 days” and is subject to a maximum sentence
of five years. 75 Pa.C.S. § 3804(c)(2)(i); 18 Pa.C.S. § 106(b)(6). However,
an individual with one prior DUI conviction without a testing refusal under the
statute commits an ungraded misdemeanor for which he is subject to a
mandatory minimum sentence of five days and maximum term of
imprisonment of “not more than six months.” 75 Pa.C.S. §§ 3803(a)(1),
3804(a)(2)(i).
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chemical test. Furthermore, I read [Appellant] the DL -26 A form; she
refused the test and refused to sign the form.
Id.
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Previously, a defendant who refused a blood test in connection with a
DUI conviction would face the heightened penalties under the Vehicle Code
regardless of whether the request for testing was pursuant to a valid search
warrant or under an exception to the warrant requirement. However, in 2016,
the United States Supreme Court decided Birchfield v. North Dakota, 136
S.Ct. 2160 (2016), holding that the Fourth Amendment of the United States
Constitution permits warrantless breath tests as a search incident to arrest,
but does not permit a warrantless blood draw in the same situation; thus
authorities must generally obtain a warrant to perform a blood test for alcohol.
Id. at 2184-86. In the wake of Birchfield, the General Assembly amended
the Vehicle Code to provide that the increased gradation and enhanced
minimum and maximum penalties apply only to refusals of breath tests or
refusals of blood tests pursuant to a valid warrant. See Monarch, 200 A.3d
at 53-54 nn.2-3 (describing amendments).9 Furthermore, this Court and our
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9 As it pertains to Appellant, Section 3803(b)(4) previously provided that “[a]n
individual who violates section 3802(a)(1) where the individual refused testing
of blood or breath . . . and who has one or more prior offenses commits a
misdemeanor of the first degree”; this language was amended following
Birchfield to provide that the increased gradation applied where the
individual “refused testing of breath or chemical testing pursuant to a valid
search warrant, court order or any other basis permissible by the Constitution
of the United States and the Constitution of Pennsylvania.” 75 Pa.C.S. §
3803(b)(4), as amended by the Act of October 24, 2018, P.L. 925, No. 153, §
3. Section 3804(c) previously provided that enhanced penalties apply to “[a]n
individual who violates section 3802(a)(1) and refused testing of blood or
breath,” which was narrowed by amendment to apply to individuals who
“refused testing of breath . . . or testing of blood pursuant to a valid search
warrant.” 75 Pa.C.S. § 3804(c), as amended by the Act of July 20, 2017, P.L.
333, No. 30, § 4.
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Supreme Court have made clear following Birchfield that an individual may
not be subjected to heightened penalty for a refusal to submit to a warrantless
blood alcohol test, absent a valid exception to the warrant requirement. See
Monarch, 200 A.3d at 56-58; Commonwealth v. Giron, 155 A.3d 635, 638-
40 (Pa. Super. 2017).
As discussed above, Appellant was convicted of DUI-general impairment
graded as a misdemeanor of the first degree, and the trial court initially
imposed a sentence of two years of intermediate punishment with 90 days
served on house arrest. Sentencing Order, 7/12/19; N.T., 7/12/19, at 5. At
resentencing after violation, the trial court sentenced Appellant to 90 days to
two years of imprisonment, followed by three years of probation. Sentencing
Order, 10/16/19; N.T., 10/16/19, at 19-20. Both the gradation of the offense
and the sentences imposed are in line with the heightened penalties for a
conviction of Section 3802(a)(1) as a second offense where the individual
refused testing. Furthermore, the sentences exceed the maximum six-month
sentence of imprisonment for a conviction of the identical DUI offense but
where there was no refusal of testing.10 Pursuant to the Sixth Amendment to
the United States Constitution, a trial court may not impose an enhanced
maximum sentence except upon “the basis of the facts reflected in the jury
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10 We further note that the trial court sentenced Appellant to pay a $1,500
fine at the original sentencing and upon resentencing, which is the minimum
fine for a second-offense DUI-general impairment conviction with a refusal of
testing. 75 Pa.C.S. § 3804(c)(2)(ii); Sentencing Order, 7/12/19; Sentencing
Order, 10/16/19.
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verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S.
296, 303 (2004) (emphasis omitted) (citing Apprendi v. New Jersey, 530
U.S. 466 (2004)); see also Commonwealth v. Belak, 825 A.2d 1252, 1256-
57 n.10 (Pa. 2003); Commonwealth v. Johnson, 961 A.2d 877, 881 (Pa.
Super. 2008); Commonwealth v. Kearns, 907 A.2d 649, 655 (Pa. Super.
2006). Given the ambiguity regarding the refusal of chemical testing at the
plea hearing, Appellant could present a potentially meritorious argument that
she did not admit to facts that would support the trial court’s imposition of
heightened penalties for a refusal.
For the above reasons, we deny Attorney Brunnabend’s petition to
withdraw and direct counsel to review the legality of sentence issue discussed
herein and file an advocate’s brief or new Anders brief within 30 days of the
date of this memorandum. In addition to the above issue, counsel may raise
any other non-frivolous issues that he has identified. The Commonwealth
shall have 30 days from that filing to respond.11
Petition to withdraw denied. Anders brief stricken. Appellant’s counsel
ordered to file an advocate’s brief or a new Anders brief within 30 days of the
date of this memorandum. The Commonwealth may file a brief within 30 days
of Appellant’s counsel’s brief. Panel jurisdiction retained.
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11 If the Commonwealth chooses to not file a brief in response, the Court
requests that the Commonwealth promptly send a letter to the Prothonotary
advising the Court that no brief will be filed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2020
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