Com. v. Adamski, A. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AMANDA ADAMSKI :
:
Appellant : No. 617 MDA 2021
Appeal from the Judgment of Sentence Entered April 15, 2021,
in the Court of Common Pleas of Luzerne County,
Civil Division at No(s): 2021-00718.
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 14, 2022
Amanda Adamski appeals from the judgment of sentence imposed after
she pled guilty to indirect criminal contempt (“ICC”)1 of a temporary Protection
from Abuse (“PFA”) order. Additionally, Adamski’s counsel filed a petition to
withdraw representation and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). Upon review, we deny counsel’s
petition, and remand to allow counsel to submit an appropriate brief.
On January 25, 2021, D.M. obtained a temporary PFA order against
Adamski, his girlfriend. The order prohibited Adamski, inter alia, from
contacting D.M. or going to his residence. A final PFA hearing was scheduled
for March 4, 2021.
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* Former Justice specially assigned to the Superior Court.
1 23 Pa.C.S.A. § 6114(a).
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In the interim, on February 2, and February 5, 2021, while the
temporary PFA order was still in effect, Adamski contacted D.M. on several
occasions. Adamski’s brother also texted D.M. and asked him to call Adamski
so she could retrieve her belongings from his residence. D.M. filed a complaint
with the police. After determining that Adamski had been served with the
temporary PFA order, the police filed an indirect criminal complaint against
her.
On April 15, 2021, at the time set for hearing in this matter where
Adamski was represented by counsel, Adamski negotiated a plea agreement
with the Commonwealth. Specifically, she would admit to the attempted
contact with D.M., and, in exchange, would receive 6 months’ probation. The
trial court accepted the plea and sentenced her to 6 months’ probation. N.T.,
4/15/20, at 2-4. Adamski did not file a post-sentence motion.
Adamski filed this timely appeal. Her new counsel filed a petition to
withdraw from representation and an Anders brief with this Court. Adamski
did not retain independent counsel or file a pro se response to the Anders
brief.
Before we may consider the issues raised in the Anders brief, we must
first consider counsel’s petition to withdraw from representation. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding
that, when presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
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withdraw). Pursuant to Anders, when counsel believes an appeal is frivolous
and wishes to withdraw from representation, counsel must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise [her] of [her] right to retain new
counsel, proceed pro se, or raise any additional points [counsel]
deems worthy of this Court's attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief:
(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. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
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Here, counsel has complied with each of the requirements of Anders.
Counsel indicated that he reviewed the record and concluded that Adamski’s
appeal is frivolous. Further, the Anders brief substantially comports with the
requirements set forth by our Supreme Court in Santiago. Finally, the record
included a copy of the letter that counsel sent to Adamski stating counsel’s
intention to seek permission to withdraw and advising Adamski of her right to
proceed pro se or retain new counsel and file additional claims. Accordingly,
as counsel has complied with the procedural requirements for withdrawing
from representation, we will conduct an independent review to determine
whether Adamski’s appeal is wholly frivolous.
In the Anders brief, counsel sets forth one issue challenging the
voluntariness of Adamski’s plea:
1. Did the trial court abuse its discretion and/or err in accepting
[Adamski’s] guilty plea because she had nowhere else to live and
wanted to retrieve her belongings from the residence and,
therefore, it is improper to punish her for contacting the protected
party?
Anders Brief at 3. Additionally, although not raised as a separate issue,
counsel addresses Adamski’s challenge to the discretionary aspects of her
sentence. Id. at 11, 13.
Preliminarily, we note a defendant wishing to challenge the
voluntariness of a guilty plea on direct appeal must either object during the
plea colloquy or file a motion to withdraw the plea within ten days of
sentencing. Failure to do either results in waiver. Commonwealth v.
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Lincoln, 72 A.3d 606, 609–10 (Pa. Super. 2013) (citations omitted), appeal
denied, 87 A.3d 319 (2014) (holding defendant failed to preserve challenge
to validity of guilty plea where he did not object during plea colloquy or file
post-sentence motion to withdraw plea). See also Pa.R.Crim.P. 720(A)(1),
(B)(1)(a)(i) (stating post-sentence motion challenging validity of guilty plea
shall be filed no later than 10 days after imposition of sentence). “It is for the
court which accepted the plea to consider and correct, in the first instance,
any error which may have been committed.” Commonwealth v. Monjaras-
Amaya, 163 A.3d 466, 469 (Pa. Super. 2017).
Similarly, we observe that a defendant wishing to challenge the
discretionary aspects of a sentence must properly preserve it for our
consideration. “Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Moury, 992
A.2d 162, 170 (Pa. Super. 2010). This Court has explained that, to reach the
merits of a discretionary sentencing issue, we must conduct a four-part
analysis to determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]pellant's brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence [in
accordance with 2119(f)]; 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.
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Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Notwithstanding these requirements, we note, as counsel does, that
Adamski did not preserve either of these issues for appeal. Adamski did not
seek to withdraw her guilty plea at any time orally on the record at the hearing
or by filing a timely post-sentence motion. She also did not object to her
sentence at the hearing or raise her sentencing claim in a post-sentence
motion. Consequently, Adamski’s issues would be waived and considered
frivolous. See Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super.
2008) (holding that when an issue has been waived, “pursuing th[e] matter
on direct appeal is frivolous”).
However, our independent review of the record disclosed that Adamski
was not advised of her right to file a post-sentence motion. Once sentenced,
Adamski had the right to file a post-sentence motion within 10 days and/or to
appeal within 30 days. The court was required, on the record, to ensure
Adamski was advised of these rights. Pa.R.Crim.P. 704(C)(3).
Although this is an indirect criminal contempt and not a purely criminal
matter, “one charged with an indirect criminal contempt is to be provided the
safeguards which statute and criminal procedures afford.” Commonwealth
v. Baker, 722 A.2d 718, 720 (Pa. Super. 1998). Furthermore, this Court has
held that a defendant’s issue was preserved for appellate review where a
defendant was not informed on the record that he had 10 days in which to file
a post-sentence motion. See Commonwealth v. Harris, 473 A.2d 610, 613
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n. 5 (Pa. Super. 1984) (where appellant was not informed of right to file a
motion for reconsideration of sentence, this Court held that claim was not
waived); see also Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa.
Super. 2006) (“Given that Appellant was unaware of the need to preserve
claims in a motion for reconsideration [of his probation revocation sentence],
we find that he has not waived those claims on appeal.”); Commonwealth
v. Rish, 606 A.2d 946, 947 n. 5 (Pa. Super. 1992) (claim challenging denial
of motion to withdraw guilty plea was not waived where sentencing court did
not advise appellant of right to file post-sentence motion). Therefore, because
Adamski was not advised of her right to file a post-sentence motion, these
issues are not waived. See id.Additionally, our review of the record revealed that the trial court did
not conduct a formal plea colloquy as required under Pennsylvania Rule of
Criminal Procedure 590.2 Although the trial court reviewed the negotiated
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2 Rule 590(A)(1) of the Pennsylvania Rules of Criminal Procedure requires, in
pertinent part, that a guilty plea be taken in open court. As noted in the
Comment to Rule 590, at a minimum the trial court should ask questions to
elicit the following information:
(1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to
trial jury trial?
(Footnote Continued Next Page)
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plea agreement with Adamski, it did not review the remaining factors set forth
in Rule. 590. Again, Adamski was entitled to the same safeguards as in a
criminal proceeding. Baker, supra.
Accordingly, we direct counsel to address these issues, either in an
Anders brief or in an advocate’s brief, within thirty days of the date of this
order. The Commonwealth may file a reply within 30 days of Adamski’s filing.
Petition to withdraw denied. Panel jurisdiction retained.
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(4) Does the defendant understand that he or she is presumed
innocent until found guilty?
(5) Is the defendant aware of the permissible range of sentences
and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
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