Com. v. Chandler, M. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MALINDA CHANDLER :
:
Appellant : No. 1639 MDA 2023
Appeal from the Judgment of Sentence Entered August 24, 2023
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003522-2022
BEFORE: DUBOW, J., BECK, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: NOVEMBER 25, 2024
Appellant, Malinda Chandler, appeals the judgment of sentence imposed
by the Luzerne County Court of Common Pleas after she tendered a guilty plea
to one count of making a materially false written statement in connection with
the purchase, delivery, or transfer of a firearm.1 Her counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), along with a petition
to withdraw as counsel. Upon review, we affirm and grant counsel’s request
to withdraw from representation.
On April 17, 2023, Appellant entered her plea without any stated
negotiation for a sentencing recommendation. N.T. 4/17/23, 3-5. She
stipulated to the facts underlying her plea. Id. at 4. The affidavit of probable
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6111(g)(4)(ii).
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cause attached to Appellant’s criminal complaint describes the relevant facts
as follows:
On March 17, 2021[, Appellant] attempted to purchase a SCCY
model: CPX2 9mm pistol bearing serial number: C105389 from
Gippy’s Gun Shop located at 726 Wilkes Barre Township Boulevard
in Wilkes Barre Township. While attempting to purchase the
pistol[, Appellant] filled out [a] U.S. Department of Justice ATF
form 4473. [Appellant] marked “No” to blocks 21c and 21d of said
form. Block 21c of ATF form 4473 asks the prospective buyer if
they have ever been convicted in any court of a felony or any
other crime for which the judge could have sentenced her to a
term of imprisonment of greater than one year even if the actual
sentence she received was less to include [sic] probation. Block
21d of ATF form 4473 asks the prospective buyer if they are a
fugitive from justice.
An agent of Gippy’s Gun Shop conducted a mandatory background
investigation through the Pennsylvania Instant Check System
(PICS). The PICS check revealed [Appellant] was convicted in
2020 of Section 4106(a)(1)[(ii)] of Title 18 [for] Access Device
Issued to Another who Did Not Authorize Use[,] a misdemeanor
one offense punishable by a prison sentence of up to five years.
This conviction caused [Appellant] to be denied in her attempt to
purchase a pistol.
Further investigation revealed [Appellant] had three open
warrants for Title 18 offenses [for] Retail Theft, Public
Drunken[n]ess, and Harassment. These open valid warrants
caused her to be a fugitive from justice.
It is obvious from the 2020 conviction for Section 4106(a)[(ii)] of
Title 18 and the three open warrants for her arrest [Appellant]
knowingly and falsely marked “No” to blocks 21c and 21d of ATF
form 4473 in an attempt to illegally purchase a firearm.
Affidavit of Probable Cause, 8/23/22, 1. Sentencing was deferred for, inter
alia, the preparation of a presentence investigation report. N.T. 4/17/23, 5-
6.
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Appellant failed to appear for a sentencing hearing initially scheduled for
June 13, 2023, and a warrant was issued for her. N.T. 4/17/23, 5-6; Plea
Court Opinion, 1/18/24, 2. On August 24, 2023, Appellant appeared for a
rescheduled hearing and the court sentenced her to nine to eighteen months’
imprisonment with immediate eligibility for parole upon serving half of the
minimum term, along with a no contact order and an order to submit a DNA
sample. N.T. 8/24/23, 6. On September 7, 2023, Appellant filed a motion for
reconsideration of her sentence in which she requested a house arrest
sentence with electronic monitoring to allow her to undergo a drug and alcohol
assessment for the purposes of applying for participation in an intermediate
punishment program. Motion to Modify Sentence, 9/7/23, ¶¶ 2, 4-5. On
September 26, 2023, the plea court denied the post-sentence motion as
untimely filed.2 Order, 9/26/23, 1.
Appellant did not file a timely notice of appeal. On November 3, 2023,
she filed a counseled motion for reinstatement of her direct appeal rights nunc
pro tunc, which effectively served as a petition for relief pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541. See Commonwealth v.
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2 The ten-day deadline for filing a timely post-sentence motion, pursuant to
Pa.R.Crim.P. 720(a), would have mechanically fell on Sunday, September 3,
2023. Because the next day was an observed court holiday for Labor Day,
Appellant’s deadline for filing a timely post-sentence motion would have been
Tuesday, September 5, 2023. See Pa.R.Crim.P. 101(c) (incorporating by
reference the rules of construction in the Pennsylvania Rules of Judicial
Administration including Pa.R.J.A. 107(a)-(b), relating to computation of time
for the rule of construction relating to the exclusion of the first day and
inclusion of the last day of a time period and the omission of the last day of a
time period which falls on Saturday, Sunday, or a legal holiday).
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Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002) (holding that, generally,
“requests for reinstatement of appellate rights, including PCRA appellate
rights,” are PCRA petitions that “must meet the timeliness requirements of the
PCRA”). The plea court granted the motion and Appellant thereafter timely
filed a notice of appeal nunc pro tunc.3 Order, 11/6/23, 1; Notice of Appeal,
11/27/23, 1. Appellant’s counsel and the plea court thereafter complied with
their obligations under Pa.R.A.P. 1925. Pa.R.A.P. 1925(a) Order, 11/30/23,
1; Motion for Extension of Time, 1/10/24, 1-3; Pa.R.A.P. 1925(c)(4)
Statement, 1/10/24, 1-3; Order, 1/10/24, 1; Plea Court Opinion, 1/18/24, 1-
3.
Counsel’s Anders brief presents the following questions for our review:
1. Did the trial court abuse its discretion in refusing to grant a
continuance of the sentencing hearing?
2. Did the trial court abuse its discretion by failing to impose a
sentence that provided the Appellant with house
arrest/electronic monitoring?
Anders Brief at 3.
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3 Because the twenty-day deadline for filing the notice of appeal nunc pro tunc
fell on Sunday, November 26, 2023, the notice of appeal was timely filed on
the next day. See Pa.R.A.P. 107 (incorporating by reference the rules of
construction in the Pennsylvania Rules of Judicial Administration including
Pa.R.J.A. 107(a)-(b), relating to computation of time for the rule of
construction relating to the exclusion of the first day and inclusion of the last
day of a time period and the omission of the last day of a time period which
falls on Saturday, Sunday, or a legal holiday).
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As a preliminary matter, we must address counsel’s request to
withdraw. See Commonwealth v. Watts, 283 A.3d 1252, 1254 (Pa. Super.
2022 (“Before we may consider the issues raised in the Anders brief, we must
first consider counsel’s petition to withdraw from representation.”). Counsel
who believes an appeal is frivolous and seeks to withdraw from representation
under Anders must:
[(]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 frivolous; [(]2) furnish a
copy of the brief to the [appellant]; and [(]3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Redwood, 273 A.3d 1247, 1252 (Pa. Super. 2022)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009), our Supreme Court addressed the second point of the Anders
standard, i.e., the contents of the Anders brief, requiring 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, this Court has a duty to conduct its own review of the lower
court’s proceedings and make an independent determination whether the
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appeal is wholly frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197
(Pa. Super. 2018) (en banc).
Upon our review, we conclude that counsel has complied with the
Anders standard for withdrawal. Counsel has filed a comprehensive brief
examining the factual and procedural history of the case with citations to the
record. The brief cogently addresses two legal issues, concerning the denial
of a request for a continuance of the sentencing hearing and a challenge to
the discretionary aspects of the sentence imposed, and explains, with citations
to the record and supporting law, why neither of those claims would establish
an abuse of discretion necessary for a grant of relief. Anders Brief at 9-21.
Counsel, in passing, also addresses why hypothetical claims concerning the
voluntariness of Appellant’s guilty plea and the legality of her sentence would
fail. Id. at 17. Moreover, counsel has filed a petition to withdraw as counsel
with an appended letter to Appellant, enclosing a copy of the Anders brief to
Appellant and advising her, inter alia, of her right to file a response to the
brief, either acting pro se or with the assistance of newly retained counsel.
Our docket does reveal any subsequent response filed by Appellant. As
counsel has fully complied with the mandated procedures for withdrawing
from representation, we may proceed with substantive review.
In the first issue identified in the Anders brief, counsel addresses a
continuance request that the plea court denied at the start of the sentencing
hearing. For context, Appellant’s sentencing hearing was originally scheduled
for June 13, 2023. N.T. 4/17/23, 5-6. The reasons for deferring sentencing
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to another date from the guilty plea hearing were two-fold. On the one hand,
it was necessary because Appellant requested the preparation of a
presentence investigation report. Id. at 5. On the other hand, Appellant
wanted additional time to “apply for restrictive probation” or participation in
an intermediate punishment program. Id. While we have no notes of
testimony for the proceedings between the guilty plea hearing and the
sentencing hearing that took place on August 24, 2023, the plea court’s
opinion and the Anders brief shed light on the intervening events. The court’s
opinion notes that Appellant failed to appear on June 13, 2023, and a warrant
was issued for her. Plea Court Opinion, 1/18/24, 2. In the Anders brief,
counsel informs that Appellant appeared for sentencing on July 13, 2023, but
requested a continuance “which was granted for [her] to reapply for
[intermediate punishment] or house arrest eligibility.” Anders Brief at 4.
The sentencing hearing notes of testimony reflect that Appellant failed
to complete a drug and alcohol evaluation in her pursuit of a non-custodial
punishment and the trial court then denied her second request for a
continuance:
[DEFENSE COUNSEL:] Judge, she was supposed to have a drug
and alcohol evaluation today. I was on the phone with --
THE DEFENDANT: Yeah --
[DEFENSE COUNSEL:] -- the Robinson Center. The earliest they
can give her an evaluation, is next Thursday on the 31st at 2:00.
I was talking to them on the phone today. So, we just request
sentencing be postponed to another date so she can get that done.
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THE COURT: I’m going to deny any request for a continuance.
The Defendant has failed to show up for sentencing in the past.
This has been continued previously.
THE DEFENDANT: They said I didn’t have anything --
THE COURT: We are going to move forward.
THE DEFENDANT: -- until September. If I didn’t do the 31st, they
said September. So, I took the 31st.
THE COURT: Well, the plea was entered back in April. So, there
has been ample time to get these things taken care of. Okay?
I’m concerned given the nature of the offense involved, I have
concerns with even imposing any time of house arrest for this
Defendant. This Defendant does have some priors on her record.
So, I wish to move forward with sentencing.
N.T. 8/24/23, 2-3.
“The trial court has discretion to grant or deny a continuance request,
and its decision will not be reversed absent a showing [of] an abuse of that
discretion.” Commonwealth v. Matthews, 227 A.3d 1, 9-10 (Pa. Super.
2020) (citation omitted). Additionally, we have noted, “The grant of a
continuance is discretionary and a refusal to grant is reversible error only if
prejudice or a palpable and manifest abuse of discretion is demonstrated.”
Commonwealth v. Griffin, 804 A.2d 1, 12 (Pa. Super. 2002) (citation
omitted). “Abuse of discretion is not merely an error of judgment, but rather
is a manifestly unreasonable judgment, a result of prejudice, bias or ill-will,
or a misapplication of law.” Commonwealth v. Thomas, 879 A.2d 246, 261
(Pa. Super. 2005) (citation omitted).
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In the Anders brief, counsel concedes that he could not reasonably
argue that the request for a second sentencing continuance was “compelling”
because more than four months had passed from the date of the guilty plea
hearing to the date of the sentencing hearing and “Appellant had not only
failed to appear on one occasion but was previously granted a continuance for
th[e] very reason” for which she sought the second continuance request.
Anders Brief at 16. Moreover, counsel notes, “it cannot be established that
the [plea] court acted unreasonably and arbitrarily in declining the second
continuance request where the trial court also indicated that it was not likely
inclined to impose house arrest.” Id. at 16-17. We agree with counsel’s
assessment that Appellant was not prejudiced by the lack of a second
continuance or that the denial of a second continuance would have been an
abuse of discretion where Appellant had previously delayed sentencing by
failing to appear for prior sentencing listing. Appellant had ample time to seek
the evaluations necessary to bolster her request for a non-custodial sentence
and, in these circumstances, there were no reasons of record reflecting why
the evaluations could not have been conducted within the prior four months.
Given Appellant’s prior record and the seriousness of her offense sub judice,
she also lacked any reasonable grounds for arguing for prejudice where the
court stated its plain disinclination to impose a house arrest sentence.
As for the discretionary sentencing issue, counsel notes: “Appellant
maintains that because the [plea] court did not meaningfully consider [her]
proffer of mitigating factors, in other words, her acceptance of responsibility
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by pleading guilty, her background and her willingness to complete a drug and
alcohol evaluation, the sentence [of] incarceration was manifestly harsh and
excessive.” Anders Brief at 10. Counsel ultimately concludes that Appellant
could not prove that the sentence resulted from an abuse of discretion where
the plea court possessed a presentence investigation report, considered the
relevant statutory sentencing factors, and imposed a term at the bottom of
the standard range recommended by the Sentencing Guidelines. Anders Brief
at 20-21.
While we agree that counsel properly assesses Appellant’s inability to
prevail on the merits of a discretionary sentencing claim, our ability to engage
in substantive review of the claim itself is halted at the start due to a lack of
issue preservation. A defendant must preserve a discretionary sentencing
claim either at sentencing or in a timely filed post-sentence motion, otherwise
the claim is waived on direct review. See Pa.R.A.P. 302(a) (“Issues not raised
in the trial court are waived and cannot be raised for the first time on
appeal.”); see, e.g., Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (noting that objections to the discretionary aspects of a sentence
are generally waived if they are not raised at sentencing or preserved in a
post-sentence motion).
Here, Appellant did not raise any issue concerning the discretionary
aspects of her sentence at the conclusion of her sentencing hearing after the
imposition of the judgment of sentence. N.T. 8/24/23, 6. While she filed a
post-sentence motion for modification of sentence, she did not file it until two
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days after her ten-day deadline for filing a timely post-sentence motion
elapsed pursuant to Pa.R.Crim.P. 720(a)(1). See supra note 2. Even
assuming arguendo that the discretionary sentencing claim that Appellant
would wish to raise on appeal was included in the post-sentence motion, it
would be waived for our purposes where the post-sentence motion was not
timely filed. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (“Absent [a challenge raised in a post-sentence
motion or by presenting it to the trial court during the sentencing
proceedings], an objection to a discretionary aspect of a sentence is
waived.”); see also Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa.
Super. 2020) (explaining that precedent does not permit “this Court to
address issues that were not properly preserved in the trial court” and “the
mere filing of an Anders brief and petition to withdraw will not serve to
resuscitate claims that were already waived upon the filing of the notice of
appeal”); Commonwealth v. Wrecks, 931 A.2d 717, 719 (Pa. Super. 2007)
(observing that “[a]n untimely post-sentence motion does not preserve issues
for appeal”) (citation omitted).
Appellant’s stated issues concerning the continuance denial and the
discretionary aspects of her sentence fail, in turn, for lack of arguable merit
and issue preservation waiver. As part of our duty to conduct an independent
judgment as to whether this appeal is wholly frivolous, we note that the only
other hypothetical issues that Appellant could have addressed herein would
have been challenges to the validity of her plea, the jurisdiction of the plea
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court, and the legality of her sentence. See Commonwealth v. Brown, 240
A.3d 970, 972 (Pa. Super. 2006) (“A defendant [who pleads guilty] may
generally only appeal matters concerning the jurisdiction of the court, the
validity of the guilty plea, and the legality of the sentence. Additionally, when
a defendant pleads guilty without an agreement as to the sentence, he may
challenge the discretionary aspects of the sentence imposed.”) (citations
omitted).
There is no apparent issue with the validity or voluntariness of
Appellant’s guilty plea but, even if there was any apparent issue, any claim of
that nature would be waived because Appellant never preserved any challenge
to the plea before the lower court. See Commonwealth v. Lincoln, 72 A.3d
606, 609-10 (Pa. Super. 2013) (“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 employ either measure results in waiver.”) (citations
omitted).
There is also no apparent issue to be raised concerning the legality of
the sentence where Appellant’s nine-to-eighteen-month imprisonment term
was within the seven-year maximum that could have been imposed for a
felony of the third degree such as Appellant’s conviction in this case. See 18
Pa.C.S. § 1103(3) (setting the maximum imprisonment limit for felonies of
the third degree).
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Lastly, we do not discern any claim of arguable merit that could have
been raised concerning the plea court’s jurisdiction. The record demonstrates
that Appellant’s crime took place within Wilkes Barre Township in Luzerne
County, Appellant had adequate notice of her criminal charge, and the plea
court, as a judge sitting for the Luzerne County Court of Common Pleas, was
competent to accept Appellant’s plea to an offense under the Crimes Code.
See Commonwealth v. Jones, 929 A.2d 205, 210 (Pa. 2007) (noting that
“courts of common pleas have statewide jurisdiction in all cases arising under
the Crimes Code”); Commonwealth v. Goldblum, 447 A.2d 234, 244 (Pa.
1982) (“Subject matter jurisdiction in the trial court exists by virtue of the
presentation of prima facie evidence that a criminal act occurred within the
jurisdiction of the court.”); Commonwealth v. McNeil, 665 A.2d 1247, 1251
(Pa. Super. 1995) (“Personal jurisdiction in a criminal matter is secured
through the defendant’s presence within the territorial jurisdiction of the
court.”).
Our independent review of the record confirms that this appeal is wholly
frivolous.
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Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/25/2024
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