Com. v. Youmans, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KAITLYN MICHELLE YOUMANS :
:
Appellant : No. 2748 EDA 2022
Appeal from the Judgment of Sentence Entered May 23, 2022
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000946-2020
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 27, 2023
Appellant, Kaitlyn Michelle Youmans, appeals from the May 23, 2022
Judgment of Sentence of 12 months of supervised probation and restitution
entered in the Carbon County Court of Common Pleas following her guilty plea
to Disorderly Conduct.1 Appellant’s counsel, Eric T. Wiltrout, Esquire, has filed
a Petition to Withdraw as Counsel and an Anders2 Brief. Upon review, we
conclude that one of the four issues raised in the Anders Brief has arguable
merit. Thus, we deny counsel’s Petition to Withdraw and direct counsel to file
an advocate’s brief limited to Appellant’s sentence of restitution.
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1 18 Pa.C.S. § 5503(a)(4).
2 Anders v. California, 386 U.S. 738 (1967).
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The relevant facts and procedural history are as follows. Appellant and
Deric Tomasovich are the parents of one child.3 Mr. Tomasovich has custody
of the child. On August 11, 2020, Appellant contacted the Pennsylvania State
Police in Lehighton, Carbon County, falsely asserting that she had a valid
custody order for the child and requesting that the police remove the child
from Mr. Tomasovich’s residence. Appellant also attempted to involuntarily
commit Mr. Tomasovich to a mental health facility in an effort to disrupt a
custody proceeding scheduled for the next day in the Carbon County Court of
Common Pleas. Following this incident, the Commonwealth charged Appellant
with Obstructing Administration of Law or Other Government Function,
Disorderly Conduct, and Harassment.
On May 23, 2022, Appellant appeared for a hearing to plead guilty to
Disorderly Conduct. At the hearing, the trial court confirmed that Appellant
had knowingly, intelligently, and voluntarily completed a guilty colloquy form.
The court also conducted an oral guilty plea colloquy and, satisfied that
Appellant was entering the plea knowingly, intelligently, and voluntarily, the
court accepted her plea. The Commonwealth informed the court that Mr.
Tomasovich sought $1,716 in restitution for lost wages. Appellant disputed
Mr. Tomasovich’s entitlement to restitution, stating as follows:
[N]ot for nothing I was married to Mr. Tomasovich for four years.
He didn’t work in that entire almost four years we were married.
He refused to pay child support when child was in my care because
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3At the time of the incident giving rise to the instant charges, the child was
20 months old.
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he claimed he was unemployed so now he is magically claiming
he was fired from a job because of my actions. He didn’t have a
steady work history to begin with. I was the sole financial
provider.
N.T. Guilty Plea Hr’g, 5/23/22, at 7-8.
Because Appellant did not agree to the Commonwealth’s request for
restitution,4 the court informed Appellant that it could either schedule a
restitution hearing for another day and defer imposing sentence until after the
restitution hearing or impose her custodial and restitution sentences that day,
and she could file a post-sentence motion challenging the award of restitution.
Appellant consulted with her counsel, informed the court that she wished to
be sentenced that day, and stated “[i]f you want to file a post-trial motion,
Mr. Wiltrout, I’d appreciate that.” Id. at 9.
The court then sentenced Appellant to serve 12 months of probation to
run concurrently to a Schuylkill County sentence that she was already serving
and to pay $1,716 in restitution to Mr. Tomasovich. Appellant did not file a
post-sentence motion.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
On January 4, 2023, Attorney Wiltrout filed an Anders Brief indicating
Appellant wished to challenge the trial court’s jurisdiction, the voluntariness
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4 The trial court later characterized Appellant’s objection as a challenge to the
amount of the restitution rather than to Mr. Tomasovich’s entitlement to it.
N.T. Guilty Plea Hr’g, 5/23/22, at 8. It is clear from our review of the notes
of testimony that Appellant’s initial objection was to the court’s authority to
impose restitution in light of Appellant’s belief that Mr. Tomasovich was not
entitled to it.
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of her plea, and the award of restitution. Appellant also claims that she is
immune from prosecution because she acted as Mr. Tomasovich’s power of
attorney and had the authority to commit Mr. Tomasovich to a mental health
facility. Attorney Wiltrout also filed a Petition to Withdraw as Counsel.5
A.
As a preliminary matter, we address appellate counsel’s request to
withdraw as counsel. “When presented with an Anders Brief, this Court may
not review the merits of the underlying issues without first passing on the
request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.
Super. 2010). In order 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that he sent Appellant a copy of the
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5Appellant did not file a response to counsel’s Anders Brief or petition to
withdraw.
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Anders Brief and petition to withdraw, as well as a letter explaining to
Appellant that he has the right to retain new counsel, proceed pro se, and to
raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748,
751 (Pa. Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we will review
the issues raised in the Anders Brief to determine if they have arguable merit.
Subsequently, we must conduct “a full examination of the proceedings and
make an independent judgment as to whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5 (citation omitted). See also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (noting Anders requires the reviewing court to “review ‘the case’ as
presented in the entire record with consideration first of issues raised by
counsel”).
B.
In her first issue, Appellant asserts that the trial court lacked jurisdiction
to sentence her because she committed the crime in Schuylkill County.
Anders Brief at 3. This issue is a challenge to venue, not jurisdiction. See
Commonwealth v. McPhail, 692 A.2d 139, 144 (Pa. 2007) (plurality)
(“[T]he place of trial, whether within or without the county where the alleged
crime occurred, is a matter of venue, not jurisdiction[.]”), superseded on other
grounds by 18 Pa.C.S. § 110(1)(ii).
Pennsylvania Rule of Criminal Procedure 130 sets forth the general rule
that all criminal proceedings shall be brought in the “magisterial district in
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which the offense is alleged to have occurred[.]” Pa.R.Crim.P. 130(A). A
defendant must raise a challenge to venue in an omnibus pre-trial motion, or
it is waived. See Pa.R.Crim.P. 578 (stating motion for change of venue should
be raised in omnibus pretrial motion at “earliest feasible” time); McPhail, 692
A.2d at 144 n.3 (explaining that a challenge to venue is waived if not properly
preserved). Because Appellant did not preserve this issue by raising it in an
omnibus pretrial motion it is waived. Accordingly, we agree with counsel that
it is frivolous. See Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super.
2016) (“An issue that is waived is frivolous.”); Commonwealth v. Kalichak,
943 A.2d 285, 291 (Pa. Super. 2008) (“Having been waived, pursuing this
matter on direct appeal is frivolous.”).
In her next issue, Appellant claims that she did not knowingly and
voluntarily plead guilty. Anders Brief at 4. The record belies her claim.
As described above, Appellant testified at the guilty plea hearing that
she reviewed her case with Attorney Wiltrout prior to the hearing, understood
and completed the guilty plea colloquy form of her own free will, and had an
opportunity to review the questions with Attorney Wiltrout. She also testified
that no one offered her anything in exchange for her plea or forced her to
enter into it. In addition, Appellant did not at any time file a motion to
withdraw her plea. 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
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a motion to withdraw the plea within ten days of sentencing. Failure to employ
either measure results in waiver.”) (citations omitted)).
In light of the foregoing, we agree with counsel that Appellant’s claim
that she did not knowingly and voluntarily plead guilty is frivolous.
Appellant next asserts that she was immune from criminal prosecution
because she acted as Mr. Tomasovich’s power of attorney and, thus, had the
authority to involuntarily commit him to a mental health facility. Anders Brief
at 5. The record does not contain any evidence to support this claim. We,
thus, agree with counsel that this issue is likewise frivolous.
In her final issue, Appellant asserts that she is “not responsible for the
restitution granted to Deric Tomasovich.” Id. at 5. In the Anders Brief,
Attorney Wiltrout characterizes this issue as a challenge to the discretionary
aspects of Appellant’s sentence. He represents that he attempted to consult
with Appellant via telephone at SCI-Muncy regarding filing a post-sentence
motion to preserve this issue for appeal but that she refused to come to the
phone to answer his call. Therefore, Attorney Wiltrout concludes that this
issue is frivolous because Appellant did not preserve it for appeal. We
disagree.
We have recognized that, “in the context of criminal proceedings, an
order of restitution is not simply an award of damages, but, rather, a
sentence.” Commonwealth v. Holmes, 155 A.3d 69, 78 (Pa. Super. 2017)
(citation omitted).
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“An appeal from an order of restitution based upon a claim that it is
unsupported by the record challenges the legality, rather than the
discretionary aspects of sentence; as such it is a non-waivable matter.”
Commonwealth v. Rotola,173 A.3d 831, 834 (Pa. Super. 2017). See also
In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that when a court’s
authority to impose restitution is challenged, it pertains to the legality of a
sentence and as such cannot be waived).
As explained above, at the guilty plea hearing Appellant disputed the
appropriateness of an award of restitution in light of Mr. Tomasovich’s alleged
inconsistent work history and the speciousness of his lost wages claim. Based
on the above case law, Appellant challenges the legality of her sentence.
Because an appellant cannot waive a timely-filed legality of sentence claim,
we disagree with counsel that Appellant has waived this issue. Moreover, we
conclude that her challenge has arguable merit, warranting counsel’s
advocacy.
Therefore, we direct counsel to conduct an appropriate review of the
record and file in this Court an advocate’s brief limited to this issue on
Appellant’s behalf within sixty days. The Commonwealth may respond within
thirty days of counsel’s brief.
C.
Petition to Withdraw denied. Anders Brief stricken. Panel jurisdiction
retained.
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