Com. v. Walker, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TONY G. WALKER :
:
Appellant : No. 222 EDA 2021
Appeal from the Judgment of Sentence Entered December 3, 2020
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000148-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 28, 2021
Appellant, Tony G. Walker, appeals from the judgment of sentence of
96 to 192 months’ incarceration, imposed after he pled guilty to four counts
of delivery of a controlled substance under 35 P.S. § 780-113(a)(30). On
appeal, Appellant seeks to challenge the court’s calculation of his prior record
score (“PRS”) and offense gravity score (“OGS”). Additionally, Appellant’s
counsel, Amanda L. Gumble, Esq., seeks to withdraw her representation of
Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,
we deny counsel’s petition to withdraw and remand for further action by
counsel.
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* Former Justice specially assigned to the Superior Court.
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The facts of Appellant’s underlying convictions are not pertinent to the
issues he seeks to raise on appeal. We need only note that on August 27,
2020, Appellant pled guilty to four counts of delivery of a controlled substance.
The court ordered that a pre-sentence investigation report (“PSI”) be
prepared. In the PSI, the Pike County Probation Department recommended
that the court assign Appellant a PRS of four based on prior offenses he had
been convicted of in New York. The Probation Department also calculated
Appellant’s OGS as a nine, based on the fact that Appellant had delivered
fentanyl in this case.
On December 1, 2020, Appellant filed a pre-sentence memorandum
challenging the calculations of both his PRS and OGS. At the sentencing
hearing on December 3, 2020, Appellant reiterated his arguments. See N.T.
Sentencing Hearing, 12/3/20, at 7. The court ultimately agreed with the PRS
and OGS recommendations of the Probation Department, and it sentenced
Appellant to the aggregate term set forth above.
Appellant did not file a post-sentence motion.1 Instead, on December
11, 2020, his counsel filed a petition to withdraw, which the trial court
subsequently granted. Appellant then filed a timely, pro se notice of appeal
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1 Nevertheless, we conclude that Appellant has preserved the discretionary
aspects of sentencing issues he seeks to raise herein by presenting them in
his pre-sentence memorandum, and orally raising them at the sentencing
hearing. See Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super.
2006) (“Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or raised in a motion
to modify the sentence imposed at that hearing.”) (citation omitted).
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and the court appointed Attorney Gumble to represent him. On January 7,
2021, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and he timely complied,
preserving the following issues for our review:
1. … [T]he [t]rial [c]ourt erred and/or abused its discretion by
inappropriately calculating the [OGS] in the above matter as a
nine (9) based upon a conviction for the delivery of fentanyl when
the plea agreement accepted in this matter indicated a plea to
heroin/fentanyl in the conjunctive.
2. … [T]he [t]rial [c]ourt erred and/or abused its discretion by
inappropriately calculating [Appellant’s] [PRS] as a four (4) based
upon [Appellant’s] New York conviction for criminal sale where
such conviction is not similar to the Pennsylvania statute.
3. … [T]he challenge to [Appellant’s] [PRS] calculation is an appeal
[of] the discretionary aspects of the sentence.
Rule 1925(b) Statement, 1/22/21, at 1-2 (unnumbered). On February 22,
2021, the trial court filed a Rule 1925(a) statement addressing these claims.
On April 1, 2021, Attorney Gumble filed with this Court a petition to
withdraw from representing Appellant. That same day, counsel also filed an
Anders brief, discussing the first two issues set forth in Appellant’s Rule
1925(b) statement.2 Attorney Gumble concludes that these issues are
frivolous, and that Appellant has no other, non-frivolous issues he could
pursue herein. Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
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2 Counsel properly did not address the third issue set forth in Appellant’s Rule
1925(b) statement, as it is not a claim of error but, rather, a statement of
law.
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[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The 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.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, … 936 A.2d 40 ([Pa.] 2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] 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) (en banc).
In this case, Attorney Gumble includes a summary of the relevant facts
and procedural history, she sets forth her conclusion that Appellant’s appeal
is frivolous, and she states the law generally governing Appellant’s PRS and
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OGS challenges. Counsel also declares that she has supplied Appellant with
a copy of her Anders brief, and she attached a letter directed to Appellant to
her petition to withdraw in which she informed him of the rights enumerated
in Nischan. Accordingly, counsel has complied with these technical
requirements for withdrawal.
However, we determine that counsel has not sufficiently explained her
conclusion that Appellant’s issues are frivolous, discussed legal authority
supporting her decision, or provided any meaningful assessment of the
arguments Appellant raised before the trial court.
For instance, Attorney Gumble first addresses Appellant’s claim that the
court erred in calculating his PRS based on offenses he committed in New
York.3 See Anders Brief at 11-12. In the pre-sentence memorandum filed
by Appellant’s prior counsel, and orally at the sentencing hearing, Appellant
contended that the Probation Department had improperly calculated his PRS
as a four by erroneously considering the two drug-delivery offenses he
committed in New York as being the equivalent of Pennsylvania’s felony drug-
delivery offense under 35 P.S. § 780-113(a)(30). “A prior conviction from
another state court, federal court, or foreign jurisdiction ‘is scored as a
conviction for the current equivalent Pennsylvania offense.’”
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3 Counsel labels this as Appellant’s second issue, as she includes a first issue
stating that “[t]here are no non-frivolous issues preserved for appeal.”
Anders Brief at 10. As this first issue merely introduces counsel’s assessment
of the ostensible frivolity of Appellant’s PRS and OGS claims, we do not
specifically address it herein.
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Commonwealth v. Spenny, 128 A.3d 234, 242 (Pa. Super. 2015) (quoting
204 Pa.Code § 303.8(f)(1)). “If there is no current Pennsylvania equivalent,
the trial court must base the grading of the crime on the maximum sentence
allowed; if the grade of the prior felony conviction is unknown, it must be
treated as an F3.” Id. (citing 204 Pa. Code § 303.8(d)(2), (f)(3)).
Additionally,
when determining the Pennsylvania equivalent statute for a prior,
out-of-state conviction for prior record score purposes, courts
must identify the elements of the foreign conviction and on that
basis alone, identify the Pennsylvania statute that “is substantially
identical in nature and definition” to the out-of-state offense.
Courts are not tasked with ascertaining the statute under which
the defendant would have been convicted if he or she had
committed the out-of-state crime in Pennsylvania. Rather, we
must compare “the elements of the foreign offense in terms of
classification of the conduct proscribed, its definition of the
offense, and the requirements for culpability” to determine the
Pennsylvania equivalent offense.
Id. at 250.
Here, the Probation Department concluded that the two convictions
Appellant had in New York for possession of narcotics with intent to sell, and
criminal sale of a controlled substance, were the equivalent of felony PWID
offenses under 35 P.S. § 780-113(a)(30) in Pennsylvania. In response,
Appellant’s prior counsel argued, in his pre-sentence memorandum, that the
New York statutes were not equivalent to section 780-113(a)(30) because
New York’s definition of “sell” differs from the definition of “delivery” used in
section 780-113(a)(3). Specifically, in New York, “sell” is defined as, “to sell,
exchange, give or dispose of to another, or to offer or agree to do the same.”
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N.Y. Penal Law § 220.00 (emphasis added). Appellant insisted that the fact
that New York law penalizes an offer to sell narcotics makes its drug statutes
different from a delivery offense under section 780-113(a)(30). That
provision states:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
***
(30) Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed by
the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a counterfeit
controlled substance.
35 P.S. § 780-113(a)(30). The Pennsylvania statute defines “delivery” as “the
actual, constructive, or attempted transfer from one person to another of a
controlled substance, other drug, device or cosmetic whether or not there is
an agency relationship.” 35 P.S. § 780-102.
In his pre-sentence memorandum, Appellant cited a federal case,
United States v. Glass, 904 F.3d 319, 323 (3d Cir. 2018), to support his
position that an offer to sell drugs in Pennsylvania is not covered by section
780-113(a)(30), thereby making the New York drug statutes different than
Pennsylvania’s delivery offense. Appellant focused on the following language
in Glass:
[W]e note that at least one other provision contained in [section]
780-113 expressly prohibits offers. See 35 P[.S.] § 780-
113(a)(1) (“The manufacture, sale or delivery, holding, offering
for sale, or possession of any controlled substance ....” (emphasis
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added)). This language—i.e., “offering for sale”—is conspicuously
absent from [section] 780-113(a)(30). Obviously, the
Pennsylvania legislature knew how to criminalize offers; it simply
chose not to in [section] 780-113(a)(30).
Glass, 904 F.3d at 323.
In rejecting Appellant’s attempt to distinguish the New York and
Pennsylvania statutes, the trial court simply “found that the language of the
Pennsylvania statute is similar to the language of the New York statute which
specifically includes an ‘offer’ to sell.” Trial Court Opinion (TCO), 2/22/21, at
5. The court reasoned:
[A]n offer to sell is substantial in nature to the attempted transfer
from one person to another of a controlled substance as defined
in the Pennsylvania statute. The language in the Pennsylvania
statute does not have to be equivalent to the language of an out-
of-state statute. Therefore, we maintain our determination of
[Appellant’s] prior record score as a four (4) was appropriate and
within our discretion as the sentencing court.
Id.
Notably, the court did not distinguish Glass, or cite any Pennsylvania
law to support its decision that an attempted transfer of drugs is equivalent
to an offer to sell. Additionally, the record before us is devoid of any analysis
by the trial court of the elements of the New York offenses for which Appellant
was convicted, the conduct proscribed by the pertinent statutes, or the
requirements for culpability. See Spenny, supra. Rather, it appears that
the court simply accepted the Probation Department’s conclusion that section
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780-113(a)(30) is equivalent to Appellant’s New York convictions, without
conducting any independent analysis.4 See N.T. Sentencing at 15.
In Attorney Gumble’s Anders brief, she sets forth the general law
governing PRS calculations based on out-of-state convictions, and she
explains that the trial court “relied on the [PSI] provided by the Pike County
Probation Office[,] which assessed [Appellant’s] New York State convictions
as being [f]elony[-]level offenses that would carry a [PRS] of two points each;
therefore, … Appellant’s [PRS] was determined to be a four (4).” Anders Brief
at 11. Then, to explain why Appellant’s PRS challenge is frivolous, counsel
provides the following, single sentence: “The New York State convictions of
criminal possession of narcotics with intent to sell and criminal sale of a
controlled substance are equivalent to [a] felony drug offense under
Pennsylvania law and were properly assessed [at] two (2) points each.” Id.
at 12.
Attorney Gumble’s cursory assessment fails to demonstrate that
Appellant’s PRS issue is wholly frivolous. Namely, counsel does not address
the arguments raised by Appellant’s prior counsel in his pre-sentence
memorandum, or explain why they were properly rejected by the trial court.
Counsel also fails to acknowledge that the court simply accepted the Probation
Department’s recommendation for Appellant’s PRS, without analyzing the
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4 The certified record does not contain the PSI in which, presumably, the
Probation Department set forth the facts of Appellant’s New York convictions,
and the basis for its conclusion that those convictions are equivalent to
offenses under section 780-113(a)(30).
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elements of the New York and Pennsylvania statutes, citing any legal
authority, or addressing the case law relied upon by Appellant.
Likewise, Attorney Gumble provides an insufficient analysis of
Appellant’s OGS challenge to demonstrate that it is frivolous. In the pre-
sentence memorandum, Appellant’s prior counsel explained that “[t]he
Probation Office’s determination that the [OGS] is [nine] is based upon a
conviction for the delivery of fentanyl[,]” but the criminal information charged
delivery of heroin and fentanyl. See Pre-Sentence Memorandum at 6; see
also Criminal Information, 6/22/20, at 1 (single page). Again relying on
federal case law, prior counsel argued that Appellant had pled guilty to
delivering heroin and fentanyl “in the conjunctive” and, consequently, that
Appellant’s OGS should have been based on his delivering heroin, rather than
fentanyl. Id. (discussing Young v. Holder, 697 F.3d 976, 987 (9th Cir.
2012), and Unites States v. Vann, 660 F.3d 771 (4th Cir. 2011)).
Consequently, prior counsel asserted that Appellant’s OGS should be a six, not
a nine. Id.In Attorney Gumble’s Anders brief, she again provides the general law
pertaining to the calculation of an OGS. Anders Brief at 12. She then states:
Pursuant to Section 303.3(e) of the Pennsylvania Sentencing
Guideline Standard[,] “[i]f any mixture or compound contains a
detectable amount of more than one controlled substance, the
mixture or compound shall be deemed to be composed entirely of
the controlled substance which has the highest [OGS].” 204 Pa.
Code § 303.3(e) (emphasis added). Here, fentanyl has an [OGS]
of nine (9) and heroin has an [OGS] of six (6). Therefore, it was
proper under the Pennsylvania Sentencing Guidelines, and
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pursuant to the plea agreement, for the trial court to determine
that the [OGS] to be used in this case was a nine (9).
Id. at 13. Notably, Attorney Grumble does not discuss the argument that
Appellant’s prior counsel raised before the sentencing court in challenging the
OGS of nine. Accordingly, Attorney Grumble has not demonstrated that
Appellant’s OGS claim is wholly frivolous.
For these reasons, we are compelled to deny Attorney Gumble’s petition
to withdraw. We direct counsel to either file an amended Anders brief
assessing Appellant’s issues in more detail, or file an advocate’s brief, within
30 days of the date of this memorandum. The Commonwealth shall thereafter
have 30 days to file a responsive brief.5
Petition to withdraw denied. Case remanded for further action by
counsel. Panel jurisdiction retained.
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5 In its instant brief, the Commonwealth presents no argument. Instead, it
states that it has “no obligation to file an advocate’s brief in response to an
Anders brief[,] unless the reviewing court determines the existence of
meritorious issues on appeal.” Commonwealth’s Brief at 6. Given our decision
herein, we direct the Commonwealth to file an advocate’s brief.
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