Com. v. Ukasik, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
CURTIS UKASIK
Appellant : No. 401 WDA 2018
Appeal from the Judgment of Sentence January 25, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007410-2016
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JUNE 24, 2019
Curtis Ukasik appeals from the judgment of sentence entered after he
pleaded nolo contendre to 13 counts of Theft by Failure to Make Required
Disposition of Funds, 5 counts of Theft by Deception, 1 count of Theft by
Unlawful Taking - Movable Property, and 1 count of Deceptive Business
Practices.! Ukasik’s appointed counsel seeks to withdraw pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981). We affirm the judgment of sentence and grant
counsel's petition to withdraw.
Ukasik operated an automotive restoration, customization, and repair
business. As summarized by the trial court:
118 Pa.C.S.A. § 3927, 18 Pa.C.S.A. § 3922, 18 Pa.C.S.A. § 3921(a), and 18
Pa.C.S.A. §§ 4107(a)(2), (a)(4)(i), respectively.
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the Commonwealth’s summary of the evidence established that
[Ukasik] was the owner and operator of Redline Performance
Sports which performed restoration and customization on high
end autos. The Commonwealth established that the victims sent
their vehicles and various payments to [Ukasik] for customization
and repair work and that [Ukasik] took the money but little or no
work was ever performed. . . . The amounts taken by [Ukasik]
ranged from as high as $167,505.00 from one victim to as low as
$836.00. . . . [Ukasik] acknowledged that the summary of the
evidence was correct.
Trial Court Opinion, 7/16/18, at 2-3 (citations omitted, alterations added).
Ukasik pleaded nolo contendre to these charges. Ukasik “was sentenced
at three of the theft counts to consecutive periods of confinement of 12 to 24
months, 10 to 20 months and 10 to 20 months.” Id., at 1. Ukasik “was also
sentenced to four consecutive periods of five years’ probation and concurrent
terms of five years’ probation at the remaining counts.” Id. “Therefore,
[Ukasik] was sentenced to a total aggregate sentence of 32 to 64 months
incarceration and 20 years’ probation.” Id.
Ukasik filed a timely post-sentence motion, which the trial court denied.
This timely appealed followed. Thereafter, the trial court directed Ukasik to
file a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b). In response, Ukasik’s counsel filed a statement of
intention to file an Anders/McClendon brief in lieu of a concise statement.
As a threshold matter, we recognize that Ukasik’s counsel has filed a
brief pursuant to Anders and its Pennsylvania counterpart, McClendon. See
Anders, 386 U.S. 783; McClendon, 434 A.2d 1185. Pursuant to the Rules
of Appellate Procedure,
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[i]n a criminal case, counsel may file of record and serve on the
judge a statement of intent to file an Anders/McClendon brief
in lieu of filing a Statement. If, upon review of the
Anders/ McClendon 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).
To be permitted to withdraw pursuant to Anders, counsel must:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record it has been
determined that the appeal would be frivolous; (2) file a brief
referring to anything that might arguably support the appeal, but
which does not resemble a “no merit” letter or amicus curiae brief;
and (3) furnish a copy of the brief to the defendant and advise
him of his right to retain new counsel or raise any additional points
that he deems worthy of the court's attention.
Commonwealth v. McBride, 957 A.2d 752, 756 (Pa. Super. 2008)(citation
omitted). Moreover, counsel is required to submit to this Court “a copy of any
letter used by counsel to advise the appellant of the rights associated with the
Anders process.” Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.
Super. 2007). Our Supreme Court has further expounded on the
requirements necessary for an Anders brief, by requiring counsel to:
1) provide a procedural history of the case;
2) refer to anything of record that could support the appeal;
3) identify counsel’s conclusion that the appeal is frivolous; and
4) state counsel’s rationale for his or her conclusion, which is
inclusive of applicable facts of record, controlling case law, and
statutes.
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See Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If all of
these requirements have been met, we may then review the record to
determine the frivolity of the appeal. See id., at 355 n. 5.
Here, Ukasik’s counsel filed an appropriate petition seeking leave to
withdraw, which included all of the essential elements outlined in Santiago.
Furthermore, counsel sent Ukasik a copy of the underlying Anders brief,
identified the extensive review performed on Ukasik’s case, informed Ukasik
of his right to proceed with his appeal with or without retained counsel, and
conveyed that Ukasik has the ability to file a brief raising any additional points
that Ukasik deems worthy of review. Ukasik has not filed a response.
We are Satisfied that counsel has adhered to the technical requirements
set forth in Anders and McClendon. Thus, we must address the substantive
issue raised in the Anders brief.
Ukasik argues that the trial court erred by not combining all of his
charges into one charge of theft. Ukasik predicates this argument by asserting
that, pursuant to 18 Pa.C.S.A. § 3903(c)(3), the amounts of all of his theft
charges should be aggregated to the sum total of $448,381. Accordingly,
through the aggregation of these charges, he would only have faced one
sentence, thereby reducing his confinement period.
In its entirety, 18 Pa.C.S.A. § 3903(c)(3) states that:
When the value of property cannot be_ satisfactorily
ascertained pursuant to the standards set forth in paragraphs
(1) and (2) of this subsection its value shall be deemed to be an
amount less than $50. Amounts involved in thefts committed
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pursuant to one scheme or course of conduct, whether from the
same person or several persons, may be aggregated in
determining the grade of the offense.
(emphases added). In interpreting a statute that is “clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). In other words, absent an
ambiguity, we are to give meaning to the plain text of a statute.
Through a perusal of § 3903(c)(3), several items are worth discussing.
To start, it is unclear whether the latter half of § 3903(c)(3) only applies to
situations where “the value of property cannot be satisfactory ascertained.”
18 Pa.C.S.A. § 3903(c)(3). If it is limited to those “unsatisfactory valuation”
situations, then that subsection is wholly inapplicable, as the amounts in this
case were able to be satisfactorily ascertained. See, e.g., N.T., 9/26/17, 7-
16 (including discussion on the various and specific amounts owed to the
victims of Ukasik’s crimes).
Even if the subsection is not limited to unascertainable property values,
Ukasik is still without recourse. First, § 3903(c)(3) clearly utilizes the word
uu “a
may”. “May” indicates that such an action is permissive, rather than the
mandatory “shall.” See, e.g., Commonwealth v. Garland, 142 A.2d 14, 17
(Pa. 1958). Accordingly, there is nothing making it compulsory for the trial
court to have aggregated the amounts involved in thefts committed pursuant
to one scheme or course of conduct. Second, and more importantly, §
3903(c)(3) merely indicates that stolen property valuations may be
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aggregated for grading purposes; that subsection notably does not alter the
number of charges that can be brought against an individual, nor does it
invoke the merger of charges for sentencing purposes. Simply put, the
language of § 3903(c)(3) contains no express, or even implicit, language that
would allow for the aggregation of individual theft charges committed against
multiple people into one omnibus theft charge. We agree with counsel that
this issue is frivolous.
Further, upon a full and independent review of the record, as is required
by Anders and McClendon, we find no other non-frivolous issues for review.
Therefore, we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Es@é
Prothonotary
Date: 6/24/2019