Com. v. Ritchie, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHEIM A. RITCHIE :
:
Appellant : No. 1138 WDA 2022
Appeal from the Judgment of Sentence Entered August 15, 2022
In the Court of Common Pleas of Crawford County
Criminal Division at No.: CP-20-SA-0000018-2022
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED: September 28, 2023
Appellant Raheim A. Ritchie appeals from the August 15, 2022 judgment
of sentence entered in the Court of Common Pleas of Crawford County (“trial
court”), following his summary conviction for violating Section 1543(a) of the
Vehicle Code (“Code”), 75 Pa.C.S.A. § 1543(a), relating to driving while
operating privilege is suspended or revoked. His counsel has filed a brief and
an application to withdraw pursuant to Anders v. California, 386 U.S. 738(1969), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon
review, we affirm the judgment of sentence and grant counsel’s application to
withdraw.
The facts and procedural history of this case are undisputed. Briefly,
after a magisterial district judge (“MDJ”) found Appellant guilty under Section
1543(a), Appellant filed a summary appeal to the trial court. On July 20,
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2022, the trial court conducted a de novo hearing at which the Commonwealth
presented testimony.
Patrol Sergeant David Edward Gredler, a fifteen-year veteran of the
Meadville City Police Department, testified for the Commonwealth. He
testified that, on March 22, 2022, he was working the 6:00 p.m. to 6:00 a.m.
shift. N.T., Trial, 7/20/22, at 6. Sergeant Gredler further testified that he
was attired in uniform and operated a marked patrol vehicle when he
conducted a traffic stop at approximately 2:50 a.m. that day. Id. Recalling
the incident, Sergeant Gredler stated that a person known to him, later
identified as Appellant, whom he knew to have a suspended driver’s license,
entered a vehicle, which he operated to exit the country fair parking lot in the
direction of Baldwin Street. Id. at 6-7. During the traffic stop that followed,
Sergeant Gredler positively identified Appellant, who produced a Pennsylvania
identification card. Id. at 7.
Recalling the stop, Sergeant Gredler stated:
I know that it was him and he also had an ID card on him. . . . I
did notify him and asked him if he knew that he was under
suspension. He stated he did and he didn’t know that he – or he
did know that he also didn’t have a license, just a photo ID only.
Id. at 7-8. A subsequent search and review of Appellant’s driving history
confirmed the suspension of his license on March 22, 2022. Id. at 8.
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In response, Appellant did not present any testimony1 and his counsel
agreed with the Commonwealth’s claim that Appellant’s license was
suspended on the day of the incident. Id. at 10.
At the conclusion of the hearing, the trial court determined that the
Commonwealth proved beyond a reasonable doubt that Appellant violated
Section 1543(a) of the Code, because he operated a vehicle on a suspended
license. Id. at 11. The trial court then, inter alia, sentenced Appellant to a
mandatory minimum term of 30 to 60 days’ imprisonment at the Crawford
County Correctional Facility pursuant to Section 6503(a.1) of the Code,2
because the instant violation was at least Appellant’s sixth. On July 27, 2022,
Appellant moved to reconsider his sentence, requesting that he be granted
house arrest with electronic monitoring or work release. Following a hearing,
the trial court granted the reconsideration motion insofar as it “granted work
release privileges” to Appellant. Sentencing Order, 8/15/22. Appellant timely
appealed.
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1 The trial was conducted in Appellant’s absence. He failed to appear for the
proceeding. See N.T., Trial, 7/20/22, at (“And I’m not going to continue it
either. [Appellant] knew to be here and counsel talked to him at 5:00.” He’s
got to be here.”).
2 Section 6503, relating to subsequent convictions of certain offenses,
provides in pertinent part:
A person convicted of a sixth or subsequent offense under section
1543(a) shall be sentenced to pay a fine of not less than $1,000
and to imprisonment for not less than 30 days but not more
than six months.
75 Pa.C.S.A. § 6503(a.1) (emphasis added).
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The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal. Instead of the court-ordered Rule 1925(b)
statement, however, Appellant’s counsel filed a statement of intent to file an
Anders brief under Pa.R.A.P. 1925(c)(4).3
On December 28, 2022, Appellant’s counsel filed in this Court an
application to withdraw as counsel and filed an Anders brief, wherein counsel
claimed the trial court abused its discretion in failing to sentence Appellant to
house arrest with electronic monitoring. Anders Brief at 11.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 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
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3 Rule 1925(c)(4) provides:
In a criminal case, counsel may file of record and serve on the
judge a statement of intent to file an [Anders] brief in lieu of filing
a Statement. If, upon review of the [Anders] brief, the appellate
court believes that there are arguably meritorious issues for
review, those issues will not be waived; instead, the appellate
court may remand for the filing of a Statement, a supplemental
opinion pursuant to Rule 1925(a), or both. Upon remand, the trial
court may, but is not required to, replace appellant’s counsel.
Pa.R.A.P. 1925(c)(4).
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frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Instantly, counsel’s application to withdraw from representation
provides that counsel reviewed the record and concluded that the appeal is
frivolous. Furthermore, counsel notified Appellant that he was seeking
permission to withdraw and provided Appellant with copies of the petition to
withdraw and his Anders brief. Counsel also advised Appellant of his right to
retain new counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention. Accordingly, we conclude that counsel has
satisfied the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court held:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, 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.
Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates that
he has complied with the briefing requirements of Santiago. We, therefore,
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conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met his obligations, “it then becomes the responsibility
of the reviewing court to make a full examination of the proceedings and make
an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5.
We now turn to the merits of Appellant’s claim, which implicates the
discretionary aspects of sentence. Appellant claims that the trial court should
have imposed a 30 to 60 days’ sentence of house arrest with electronic
monitoring, as opposed to work release.
It is well-settled that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220
(Pa. Super. 2011). Rather, where an appellant challenges the discretionary
aspects of a sentence, an appellant’s appeal should be considered as a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.
Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
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
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from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, we must note at the outset that Appellant has waived his
sentencing claim. Our review of the record indicates that he failed to preserve
this claim for our review because he did not raise it before the trial court at
sentencing or in the post-sentence motion. See Pa.R.Crim.P. 720(A)(1); see
also Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(holding objections to discretionary aspects of sentence are generally waived
if not raised at sentencing or preserved in a post-sentence motion). In
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013), we explained
that “issues challenging the discretionary aspects of a sentence must be raised
in a post-sentence motion or by presenting the claim to the trial court during
the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Cartrette, 83 A.3d at 1042(citation omitted).4 Accordingly, Appellant is not entitled to relief.
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4 Separately, even though Appellant did not file a Pa.R.A.P. 2119(f) statement
in his brief, we decline to find waiver on this basis because the Commonwealth
has failed to lodge an objection. Commonwealth v. Roser, 914 A.2d 447,
457 (Pa. Super. 2006).
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Even if this sentencing issue were not waived, Appellant still would not
obtain relief. The record reveals that the trial court conducted a hearing on
Appellant’s reconsideration motion, at which it allowed Appellant to present
evidence and offer mitigating circumstances for why he deserved a sentence
of house arrest with electronic monitoring or work release. At the conclusion
of the hearing, the trial court granted Appellant the relief he requested
in the alternative, i.e., work release. He now cannot complain that he is
dissatisfied with the requested sentence.
Separately, while Appellant does not challenge the length of the
sentence ordered, we note that the trial court imposed a lenient sentence
when it directed Appellant to serve a mandatory minimum term of 30 to 60
days in prison with work release. Tellingly, the court conceivably could have
sentenced Appellant to a maximum term of 6 months’ imprisonment under
Section 6503(a.1) of the Code, considering Appellant had at least five prior
violations for driving on a suspended license. As the trial court stated, “Quite
frankly, I could have made it longer but I’m not going to do that because you
do have a lot of kids.” N.T., Reconsideration Hearing, 8/15/22, at 7. It did
not do so. Thus, under the circumstances of this case, we discern no abuse
of sentencing discretion and affirm Appellant’s judgment of sentence.
Finally, based upon our independent review of the record, as detailed
above, we agree with counsel that Appellant has not raised any non-frivolous
matters herein. We, therefore, affirm the judgment of sentence and grant
counsel’s application to withdraw.
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Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2023
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