Com. v. Burnitskie, J.

J-S01013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JADE BURNITSKIE :
:
Appellant : No. 482 MDA 2021
Appeal from the Judgment of Sentence Entered March 23, 2021
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000419-2020
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: JANUARY 13, 2022
Jade Burnitskie appeals from the judgment of sentence of one year of
probation imposed after she pled guilty to one count of neglect of animals. In
this Court, Donna M. De Vita, Esquire, has filed an application to withdraw as
Appellant’s counsel and brief pursuant to Anders v. California, 386 U.S. 738(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
deny counsel’s application to withdraw and order additional briefing.
The trial court offered the following summary of the case’s history.
On March 9, 2020, through criminal information, the
Commonwealth charged Appellant with the following offenses:
aggravated cruelty to animals—torture, neglect of animals,
vaccination against rabies required - proof of vaccination, and
application dog license fees/penalties, stemming from a witness
report of a neglected dog in an abandoned residence. Based upon
the witness report, Officer Gullone of Scranton Animal Control
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01013-22
responded to the residence and interviewed the witness. The
witness held an interest in purchasing and fixing the property and
through his observations saw a female dog run away from the
vacant residence and across the street. The witness recovered
the dog. Upon recovery, the dog displayed obvious signs of
prolonged neglect, undernourishment, hair loss, large adult flea
infestation, severe weight loss, skin sores, and dried blood on her
paws requiring veterinarian intervention. The witness also
overheard the presence of another dog within the unhabitable
residence. Upon investigation, Officer Gullone discovered garbage
and feces covering the floor of the residence. He saw that the
residence lacked utilities, especially heat, and identified a bucket
being used as a toilet. He noted a large hole within the residence
caused by apparent animal scratching. Later, a neighbor
identified Appellant as a person inhabiting the residence. The
neighbor noted that Appellant held a business “watching dogs,”
wherein Appellant would house the dogs within the unsanitary
vacant residence for several hours unattended and neglected,
without access to food, water or heat.
To that end, Officer Gullone interviewed Appellant, who
denied any mistreatment of the female dog. Appellant claimed
that the dog had been missing for two weeks, but never reported
the dog missing. Afterwards, Appellant became accusatory of the
Officer and uncooperative. Within nine days of receiving
veterinary treatment and access to food and water, the female
dog gained approximately ten pounds.
Subsequently, on September 9, 2020, Appellant pled guilty
to one count of neglect of animals, graded as a misdemeanor of
the third degree. Pursuant to the guilty plea, Appellant agreed to
surrender all dogs within her possession as well as relinquish any
contact with animals during her period of supervision and
reimburse any veterinary expenses incurred. Accordingly, th[e
trial] court requested completion of a presentence investigation
report. [Appellant filed a presentence motion to withdraw her
guilty plea, which the trial court denied after a hearing.] Upon
thorough review of the presentence investigation report, as well
as consideration of the Sentencing Guidelines, including the
characteristics and history of Appellant, th[e trial] sentenced
Appellant to one year probation on March 23, 2021. Appellant did
not file any post-sentence motions, however on April 14, 2021,
Appellant filed a timely notice of appeal to the Pennsylvania
Superior Court.
-2-
J-S01013-22
Trial Court Opinion, 9/22/21, at 1-3 (cleaned up). Thereafter, both Appellant
and the trial court complied with Pa.R.A.P. 1925.
In this Court, rather than file a brief advocating on Appellant’s behalf,
counsel filed both an Anders brief and a petition seeking leave to withdraw
as counsel. Consequently, the following legal principles guide our review:
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof . . . .
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any additional
points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has further detailed counsel’s duties
as follows:
[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
-3-
J-S01013-22
record, controlling case law, and/or statutes on point that have
led to the conclusion that the appeal is frivolous.
Santiago, supra at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above.1 As required by Santiago, counsel
set forth the case history with citations to the record, referred to an issue that
arguably supports the appeal, stated her conclusion that the appeal is
frivolous, and cited case law which supports that conclusion. See Anders
brief at 5-11. Therefore, we now proceed “‘to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246,
1249 (Pa.Super. 2015) (quoting Santiago, supra at 354 n.5).
The issue arguably supporting an appeal cited by Appellant’s counsel is
whether the trial court imposed a harsh and unreasonable sentence. Anders
brief at 4. In reviewing the question, we bear in mind the following:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
____________________________________________
1 Appellant did not file a response to counsel’s petition.
-4-
J-S01013-22
defect [pursuant to] Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code.
Commonwealth v. Lucky, 229 A.3d 657, 663–64 (Pa.Super. 2020) (cleaned
up).
Here, Appellant timely filed a notice of appeal, but, as noted by the trial
court and counsel, she did not preserve the issue by raising it at the
sentencing proceeding or filing a motion to modify sentence.2 See Trial Court
Opinion, 9/22/21, at 4; Anders brief at 6. Therefore, we agree with counsel
that a challenge to the discretionary aspects of Appellant’s sentence is
frivolous. See Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa.Super.
2016) (“Appellant did not raise the issue at his sentencing hearing, nor did he
file a motion to modify the sentence imposed. Therefore, he has waived this
issue for failing to preserve it. An issue that is waived is frivolous.”).
We next 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). We do so mindful of the fact
that “[a] plea of guilty constitutes a waiver of all nonjurisdictional defects and
____________________________________________
2 We observe that Appellant was represented by a different attorney from the
Lackawanna County Public Defender’s Office for the guilty plea and
sentencing. Attorney De Vita’s first appearance in this case was through the
filing of Appellant’s Pa.R.A.P. 1925(b) statement.
-5-
J-S01013-22
defenses and waives the right to challenge anything but the legality of the
sentence and the validity of the plea.” Commonwealth v. Luciani, 201 A.3d
802, 806-07 (Pa.Super. 2018).
As noted by counsel in her brief, Appellant challenged the validity of her
plea through a pre-sentence motion to withdraw the guilty plea. Therein,
Appellant asserted that her plea was involuntary, “as it was made under
duress based on time constraints and insufficient access to discuss the case
with . . . counsel due to COVID-19 restrictions.” Motion to Withdraw Guilty
Plea, 11/30/20, at ¶ 17. Appellant further contended that she was innocent
of the offense. Id. at ¶ 16. The trial court denied the motion after a hearing,
finding that she had failed to offer a sufficient reason to withdraw the plea.
See Order, 3/17/21 at 1 n.1.
The decision to grant or deny a motion to withdraw a plea is within the
discretion of the trial court and will not be overturned absent an abuse of that
discretion. See Commonwealth v. Norton, 201 A.3d 112, 120 (Pa. 2019).
Such discretion “is not unfettered,” and “must be informed by the law, which,
for example, requires courts to grant these motions liberally, and to make
credibility determinations that are supported by the record.” Id. at 121
(cleaned up). While a bare, implausible assertion of innocence does not per
se mandate allowance to withdraw a plea, “any demonstration by a defendant
of a fair-and-just reason will suffice to support a grant, unless withdrawal
-6-
J-S01013-22
would work substantial prejudice to the Commonwealth.” Commonwealth
v. Carrasquillo, 115 A.3d 1284, 1285, 1292 (Pa. 2015).
Given the limited nature of the issues available to Appellant in this
appeal, we conclude that counsel has failed to comply with her duties under
Anders in failing to explain why an appeal challenging the denial of her
presentence motion to withdraw the plea would be wholly frivolous. The issue
certainly stands out as one susceptible to a good-faith argument far more than
the waived challenge to Appellant’s sentence that counsel chose to address.
We are not, at this stage, of a mind that Appellant is entitled to relief on this
claim. However, we conclude that it is one that counsel missed and must be
addressed to ensure that Appellant’s constitutional right to counsel has been
fully respected.
Consequently, we deny Attorney De Vita’s application to withdraw and
instruct counsel to, within thirty days, file either (1) another application to
withdraw and a new Anders brief explaining why an appeal challenging the
denial of Appellant’s presentence motion to withdraw her guilty plea would be
wholly frivolous, or (2) an advocate’s brief arguing that the trial court abused
its discretion in denying the withdrawal motion. The Commonwealth shall
have thirty days thereafter to file a response.
Application of Donna M. De Vita, Esquire, to withdraw as counsel is
denied. New briefs are ordered. Panel jurisdiction is retained.
Judge Colins joins this Memorandum.
-7-
J-S01013-22
Judge Nichols concurs in the result.
-8-