Com. v. Wright, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARIANNE LARA WRIGHT :
:
Appellant : No. 801 MDA 2020
Appeal from the Judgment of Sentence Entered May 5, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000095-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 7, 2021
Marianne Lara Wright (Appellant) appeals from the judgment of
sentence imposed after she pled guilty to driving under the influence (DUI) of
alcohol.1 Additionally, Appellant’s counsel (Counsel) seeks to withdraw from
representation pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review,
we grant Counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
On November 19, 2019, Exeter Township Police Officer Daniel Fox
stopped Appellant for “traveling over the fog line with both front and rear right
tires” and “weaving back and forth.” Affidavit of Probable Cause, 11/20/19,
at 5. The officer immediately “observed Appellant’s speech to be slurred and
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1 75 Pa.C.S.A. § 3802(a)(1).
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also observed her eyes to be red and glassy.” Id. Appellant’s passenger “also
appeared under the influence and did later confirm that he was drinking
earlier.” Id. As the officer spoke to Appellant, “her speech continued to be
slurred and she continued to act in a lethargic manner . . . as [he] spoke to
her, she retrieved a piece of gum out of her purse and placed it into her
mouth.” Id. Nonetheless, Officer Fox “smelled a strong odor of alcoholic
beverage coming from her breath as she spoke.” Id. The officer arrested
Appellant and transported her to Berks County Central Processing, where she
refused to take a certified breath test. Id. at 6. Appellant was charged with
DUI and disregarding a traffic lane.2
On May 5, 2020, Appellant pled guilty to DUI and the trial court
sentenced her to 72 hours to 6 months of incarceration. The court also
ordered Appellant pay a mandatory $1,000 fine, as well as the costs of
prosecution.
Appellant filed a timely post-sentence motion which the trial court
denied on May 27, 2020. On June 2, 2020, Appellant filed this appeal. Both
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
On September 5, 2020, Counsel filed an Anders brief, in which Counsel
avers that Appellant’s appeal is frivolous and requests permission to withdraw
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2 75 Pa.C.S.A. § 3309(1); the trial court later dismissed the traffic charge.
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from representation. Appellant did not file a response to Counsel’s Anders
brief or raise any additional claims.
We begin with the mandates that counsel seeking to withdraw pursuant
to Anders must follow. These mandates and the protection they provide arise
because a criminal defendant has a constitutional right to a direct appeal and
to counsel on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898
(Pa. Super. 2007). We have summarized:
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).
Id. (citations omitted).
Additionally, there are requirements as to the content of an Anders
brief:
[T]he Anders brief that accompanies court-appointed counsel’s
petition to withdraw … 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
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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. When faced with a purported Anders brief, we
may not review the merits of the underlying issue without first deciding
whether counsel has properly requested permission to withdraw.
Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation
omitted). If counsel has satisfied the mandates of Anders, it is this Court’s
duty to review the trial court proceedings to determine whether there are any
non-frivolous issues that the appellant could raise on appeal.
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
Our review reveals that Counsel has complied with Anders. Counsel
filed a petition with this Court stating that after reviewing the record, she finds
the appeal to be wholly frivolous. Petition to Withdraw as Counsel, 9/5/20, ¶
6. In conformance with Santiago, Counsel’s brief includes a summary of the
relevant case history, and discusses the issues she believes might arguably
support Appellant’s appeal. See Anders Brief at 7-13. Counsel sets forth her
conclusion that the appeal is frivolous and includes citation to relevant
authority. Id. Finally, Counsel has attached to her petition to withdraw the
letter she sent to Appellant, which enclosed Counsel’s petition and Anders
brief. Counsel’s letter advised Appellant of her right to proceed pro se or with
private counsel, and raise any additional issues she deems worthy of this
Court’s consideration. Thus, we proceed to Appellant’s substantive issue:
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Whether the sentencing court erred in denying Appellant’s post-
sentence motion to modify sentence to waive all costs and fines
where the sentencing court did not determine Appellant’s ability
to pay fines and costs?
Anders Brief at 6.
Appellant argues that the trial court erred by ordering her to pay the
$1,000 fine and costs without conducting a hearing to determine her ability to
pay. See id. at 9-13. This argument challenges the legality of Appellant’s
sentence. See Commonwealth v. Garzone, 993 A.2d 306, 316 (Pa. Super.
2010). “Our standard of review over such questions is de novo and our scope
of review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.
Super. 2014) (citation omitted).
The Rules of Criminal Procedure provide that a court “shall not commit
[a] defendant to prison for failure to pay a fine or costs unless it appears after
hearing that the defendant is financially able to pay the fine or costs.”
Pa.R.Crim.P. 706(A). However, we have clarified:
[A] defendant is not entitled to a pre-sentencing hearing on his or
her ability to pay costs. While Rule 706 permits a defendant to
demonstrate financial inability either after a default hearing or
when costs are initially ordered to be paid in installments, the
Rule only requires such a hearing prior to any order
directing incarceration for failure to pay the ordered costs.
. . . [I]t is not constitutionally necessary to have a
determination of the defendant’s ability to pay prior to or
at the judgment of sentence. We [therefore] conclude that [a]
. . . trial court only [must] make a determination of an indigent
defendant’s ability to render payment before he/she is committed.
Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013) (citation
omitted, emphasis added).
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Moreover, a defendant’s ability to pay is not a factor when fines and
costs are mandatory. See Commonwealth v. Gipple, 613 A.2d 600, 601
n.1 (Pa. Super. 1992). Here, Appellant pled guilty to DUI, 75 Pa.C.S.A. §
3802(a)(1), and the trial court was required to impose the $1,000 fine and
costs of prosecution. See 75 Pa.C.S.A. § 3804(c)(1)(ii) (mandatory minimum
fine of $1,000 for a first-offense DUI where a breath test was refused); 42
Pa.C.S.A. § 9721(c.1) (mandatory imposition of costs).
Consistent with the forgoing, the trial court properly concluded that
“because [] Appellant was committed to serve seventy-two consecutive hours
of incarceration pursuant to Section 3804 of the Motor Vehicle Code and not
because she failed to pay any fines or costs, a hearing to determine her ability
to pay fines or costs was not required.” Trial Court Opinion, 7/14/20, at 4.
As there is no merit to Appellant’s argument, we agree with Counsel’s
conclusion that Appellant’s claim is frivolous. See Anders Brief at 12 (“In this
matter, it was mandatory for the court to both impose the $1,000.00 fine and
the court costs pursuant to the respective statutes. Appellant was not
required to have a hearing on her ability to pay as she was not going to be
incarcerated for [failure to] pay.”).
Finally, our independent review reveals no other non-frivolous issues
Appellant could raise on appeal. See Dempster, 187 A.3d at 272. For all of
the above reasons, we grant Counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/07/2021
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