Com. v. Lee, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TRENT EDWARD LEE :
:
Appellant : No. 97 WDA 2021
Appeal from the Judgment of Sentence Entered November 23, 2020
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000794-2020
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED: AUGUST 20, 2021
Appellant, Trent Edward Lee, appeals from the Judgment of Sentence
entered on November 23, 2020, after he pleaded guilty to three counts each
of Simple Assault and Terroristic Threats. Appellant’s counsel filed a Petition
to Withdraw and Anders1 Brief, in which she has raised a challenge to the
discretionary aspects of Appellant’s sentence. Appellant filed a pro se Reply to
counsel’s Anders Brief. After careful review, we conclude that Appellant
waived his challenge to the discretionary aspects of his sentence by failing to
timely file a Post-Sentence Motion preserving the issue. He has likewise failed
to present in his pro se Reply any issue of arguable merit. As a result, we
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* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
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affirm Appellant’s Judgment of Sentence and grant counsel’s Motion to
Withdraw.
On September 17, 2020, Appellant entered a hybrid negotiated plea
agreement with the Commonwealth whereby the Commonwealth agreed to
nolle pros three charges of Aggravated Assault in exchange for Appellant’s
pleading guilty to the above charges and a minimum term of six months’
imprisonment. The agreement did not specify the maximum term of
incarceration or place of incarceration. The trial court accepted Appellant’s
plea the same day.
On November 23, 2020, the trial court imposed the negotiated 6-month
minimum sentence, with a maximum term of 6 years’ incarceration, to be
served at a state correctional institute. Appellant untimely filed a Motion for
Reconsideration on December 4, 2020, which the court denied on December
18, 2020.
Appellant filed a Notice of Appeal on January 1, 2021, and both he and
the trial court complied with Pa.R.A.P. 1925. Appellant’s counsel filed an
Anders Brief and Petition to Withdraw as Counsel. Appellant filed a pro se
Reply to counsel’s Anders Brief.
Jurisdiction
Preliminarily, we must determine if we have jurisdiction to consider the
merits of this appeal. The timeliness of an appeal implicates this Court’s
jurisdiction. Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super.
2004) (en banc). A party must file an appeal within 30 days from the
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Judgment of Sentence, unless the defendant files a timely post-sentence
motion within 10 days of the imposition of sentence. Id. at 618; Pa.R.Crim.P.
720(A)(1)-(3). Where a defendant files a timely post-sentence motion, the
appealing party must file their notice of appeal within 30 days of the entry of
the order deciding the motion or the denial of the motion by operation of law.
Pa.R.Crim.P. 720(A)(2)(a), (b). An untimely post-sentence motion, however,
does not toll the 30-day appeal period. Commonwealth v. Patterson, 940
A.2d 493, 498 (Pa. Super. 2007).
Additionally, when ruling on a post-sentence motion, the court is
required to “include notice to the defendant of . . . the right to appeal and the
time limits within which the appeal must be filed[.]” Pa.R.Crim.P.
720(B)(4)(a).
In the instant case, the court imposed sentence on November 23, 2020,
and informed Appellant of his post-sentence and appellate rights. Eleven days
later, on December 4, 2020, Appellant untimely filed a Post-Sentence Motion
for Reconsideration. This untimely Motion did not toll the appeal period, which
expired on December 23, 2020. The court denied Appellant’s Post-Sentence
Motion on December 18, 2020, five days before the expiration of the appeal
period. In doing so, the court made no mention of Appellant’s right to appeal
and the time limits within which he must file his appeal. See N.T. Hearing,
12/18/20. Appellant then untimely filed his Notice of Appeal on January 1,
2021.
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The instant case presents a factually similar situation to the one this
Court faced in Patterson, supra. In that case, the appellant filed an untimely
post-sentence motion, which the court denied 15 days before the expiration
of the appeal period. Although the court informed the appellant of his post-
sentence and appellate rights when it imposed sentence, it failed to inform
him of his appellate rights when it denied his post-sentence motion within the
direct appeal period. This Court concluded that the failure to comply with the
mandatory language in Rule 720 and provide the required notice of the time
for taking an appeal constituted a breakdown that excused the filing of an
otherwise untimely notice of appeal. 940 A.2d at 499-500.
Patterson compels the same result here. The trial court failed to comply
with Pa.R.Crim.P. 720(B)(4)(a)’s mandate that it reinform Appellant of his
appellate rights when it denied his Post-Sentence Motion within the direct
appeal period. This constitutes an administrative breakdown in the court
system that excuses Appellant’s untimely filing of his Notice of Appeal.
Patterson, 940 A.2d at 499. This Court, thus, has jurisdiction to review the
merits of this appeal.
Counsel’s Anders Brief and Petition to Withdraw
When counsel files an Anders Brief, and the appellant files a pro se or
counseled response, this Court will first determine whether counsel has
complied with the dictates of Anders and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). See Commonwealth v. Bennett, 124 A.3d 327, 333
(Pa. Super. 2015) (outlining the proper procedure where counsel files an
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Anders Brief and the appellant files a pro se response). If counsel has
complied with Anders and Santiago, we address the issues raised in the
Anders Brief. See Bennett, 124 A.3d at 333. If we determine that those
issues are without merit, we examine the allegations Appellant raised in his
pro se Reply. See id. We treat this filing as an advocate’s brief and review it
“as we do any advocate's brief.” Id. We are mindful that “[this] Court is limited
to examining only those issues raised and developed in the [pro se Reply; w]e
do not act as, and are forbidden from acting as, appellant's counsel.” Id.For counsel to withdraw from an appeal pursuant to Anders, our
Supreme Court has determined that counsel must meet 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.
Counsel here has complied with the mandated procedure for
withdrawing as counsel. Additionally, counsel confirms that she sent Appellant
a copy of the Anders Brief and Petition to Withdraw, as well as a letter
explaining to Appellant that he has the right to retain new counsel, proceed
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pro se, or raise any additional points. See Commonwealth v. Millisock, 873
A.2d 748, 751 (Pa. Super. 2005) (describing notice requirements).
Having confirmed counsel’s compliance with the above requirements,
we turn to the issue counsel raised in her Anders Brief. We will then address
Appellant’s Reply to counsel’s Anders Brief.
Discretionary Aspects of Sentence
In her Anders Brief, counsel raises a challenge to the discretionary
aspects of Appellant’s sentence. She posits that the trial court failed to state,
on the record, the reasons for Appellant’s sentence pursuant to 42 Pa.C.S. §
9721(b) (the trial court shall impose punishment consistent with “the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.”).
Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015). To invoke this Court’s jurisdiction to review an appellant’s challenge to
the sentencing court’s discretion, the appellant must, inter alia, properly
preserve the issue at sentencing or in a motion to reconsider and modify the
sentence. Id.Appellant did not challenge the sentencing court’s exercise of discretion
at sentencing. Likewise, as stated above, Appellant untimely filed his Post-
Sentence Motion for Reconsideration. “An untimely post-sentence motion does
not preserve issues for appeal.” Commonwealth v. Wrecks, 931 A.2d 717,
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719-20 (Pa. Super. 2007). As a result, Appellant waived his challenge to the
discretionary aspects of his sentence.
Appellant’s Pro se Reply
Appellant filed a pro se Reply to counsel’s Anders Brief.2 As stated
above, our case law dictates that we treat this Reply as an advocate’s brief.
Bennett, 124 A.3d at 333. Appellant’s Reply presents only one discernable
argument. He seems to challenge the voluntariness of his guilty plea, asserting
that he “only” entered the plea agreement because he believed his sentence
“could prob[ably] be a county sentence due to the nature of the crimes[.]” Pro
se Reply, filed 5/19/21, at 1-2.
Appellant’s plea agreement did not contain any guarantees about where
he would serve his term of incarceration. See Plea Agreement, filed 9/18/20.
In fact, it explicitly stated: “Maximum [sentence] to the Court. Fines, Cost,
Restitution, all other terms [except minimum sentence] to the Court.” Id.
at 2. Moreover, in his written plea colloquy, Appellant indicated that he
understood that “the place of incarceration, either county jail or state
prison, is solely within the discretion of the Sentencing Judge and that
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2 Although this Court would typically conduct an independent review of the
record for arguably meritorious issues that counsel missed or misstated,
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc), as stated above, when a defendant files a response to an Anders
Brief, “[this] Court is limited to examining only those issues raised and
developed in the [response; w]e do not act as, and are forbidden from acting
as, appellant's counsel.” Bennett, 124 A.3d at 333.
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you are given no guarantees as to the place of incarceration[.]” Written
Plea Colloquy, filed 9/18/20, at 4.
As noted above, the written negotiated plea agreement distinctly left
Appellant’s place of incarceration to the discretion of the trial judge.3 In his
Reply, Appellant does not assert that he misapprehended this fact; rather, he
states only that he believed that the court would “probably” sentence him to
incarceration in county jail. “Disappointed expectations as to the sentence
imposed do not vitiate guilty pleas.” Commonwealth v. Edwards, 612 A.2d
1077, 1079 (Pa. Super. 1992). Appellant’s disappointment in the sentencing
court’s exercise of discretion does not provide grounds to withdraw his plea or
make the plea involuntary.
Conclusion
Following our review, we conclude that Appellant waived his challenge
to the discretionary aspects of his sentence and failed to present any issues
of merit in his Reply to counsel’s Petition to Withdraw and Anders Brief.
Accordingly, we grant counsel’s Petition to Withdraw and affirm Appellant’s
Judgment of Sentence.
Petition to Withdraw as Counsel granted; Judgment of Sentence
affirmed.
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3 Additionally, Appellant’s six-year maximum sentence compelled the trial
court to impose state incarceration. 42 Pa.C.S. § 9762(b)(1).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2021
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