Com. v. Weikel, A.

J-S30022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMELIA WEIKEL :
:
Appellant : No. 2301 EDA 2021
Appeal from the Judgment of Sentence Entered September 30, 2021
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000059-2021
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED APRIL 26, 2023
Amelia Weikel (Appellant) appeals from the judgment of sentence
entered in the Wayne County Court of Common Pleas, following her guilty plea
to receiving stolen property.1 Appellant’s attorney, John Martin, II, Esquire
(Counsel), has filed an Anders2 brief and petition to withdraw from
representation. He raises the issue of whether Appellant was improperly
denied sentencing credit, where the trial court found the credit should instead
be applied to a prior matter in which Appellant was serving parole. As neither
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3925(a).
2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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the trial court nor the parties have cited relevant legal authority on this issue,
and the record does not provide sufficient information, we deny Counsel’s
petition to withdraw and remand for the trial court to prepare a supplemental
opinion.
Throughout this matter, Appellant has been represented by Counsel. On
June 24, 2021, she pleaded guilty to receiving stolen property, as part of an
alleged conspiracy to burglarize a home. The certified record does not include
the plea transcript, and the trial docket does not indicate that Counsel
requested the plea transcript. Thus, we are unable to review the
Commonwealth’s factual basis for the plea. We remind Counsel that the
appellant bears the burden “to ensure that the record contains what is
necessary to effectuate appellate review[.]” Commonwealth v. Spotti, 94
A.3d 367, 381 (Pa. Super. 2014) (en banc) (citation omitted). This is true
even when an attorney seeks to withdraw under Anders, as “counsel cannot
fulfill the mandates of Anders unless he has reviewed the entire record.”
Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2006). “[I]t
would be prudent, if not mandatory, for counsel to have ordered all the notes
of testimony.” Id. See also Commonwealth v. Flowers, 113 A.3d 1246,
1250 (Pa. Super. 2015) (“Without [the guilty plea hearing] notes of testimony,
Counsel could not have fulfilled his duty to review the entire record for any
non-frivolous issues.”).
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Nevertheless, we note the affidavit of probable cause, attached to the
application for an arrest warrant, averred Appellant conspired with two
others — her wife, Jessica Weikel, and Jehovah Maldonado3 — to commit a
September 6, 2020, burglary and theft of a home in Paupack Township, Wayne
County.4 Affidavit of Probable Cause, 10/15/20, at 1.
According to the trial court’s opinion, two days before the burglary, on
September 4, 2020, Appellant “absconded from supervision” for a prior case,
apparently out of Lackawanna County. See Trial Ct. Op., 12/14/21, at 2
(citing “Lackawanna County Information Numbers 359, 365, and 294-2009
Criminal”). The certified record before us does not include information about
this prior case, but the trial court’s opinion explained the following:
On September 10, 2020, [four days after the burglary, Appellant]
was arrested [for absconding from the Lackawanna County
supervision] and detained at SCI Muncy. At that time, [Appellant]
waived her parole violation hearing and was found in violation.
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3 The two alleged conspirators were also charged. Maldonado’s charges
proceeded to a jury trial, and he was found guilty of burglary, trespassing,
and theft by unlawful taking. His judgment of sentence on direct appeal was
recently affirmed by this same panel at Commonwealth v. Maldonado, 217
EDA 2022 (unpub. memo.) (Pa. Super. Apr. 18, 2023).
Meanwhile, Jessica pleaded guilty to theft, and as a part of her plea deal,
she testified against Maldonado at his trial. See Maldonado, 217 EDA 2022
(unpub. memo. at 6).
4 The home belonged to a husband and wife couple and, as stated above,
Appellant is married to Jessica. Nevertheless, the affidavit of probable cause
identified Appellant as the “girlfriend” of the male homeowner victim. Affidavit
of Probable Cause at 1.
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She was ordered to serve six . . . months of incarceration for
absconding (expiring March 10, 2021). . . .
Id. It is not apparent whether or when Appellant was released from custody
following this arrest and violation finding.
Meanwhile, in the instant case, the trial docket includes an October 22,
2020, entry that bail was set. Trial Docket at 5. A document, entitled “Bail
Release Conditions,” seems to indicate Appellant was released on bail the
following day, October 23rd. According to the trial court’s opinion, a detainer
was subsequently issued in the Lackawanna County matter by state parole on
November 4th, “because of her arrest for this case’s offense.” Trial Ct. Op. at
2.
As stated above, Appellant pleaded guilty to receiving stolen property
on June 24, 2021. On September 30th, the trial court conducted a sentencing
hearing.5 The court noted Appellant was “on state parole at the time [she]
committed this crime, and [thus it was] up to the state system what they do
following the resolution of this case.” N.T., 9/30/21, at 9. The court imposed
a sentence of 10 to 30 months’ imprisonment, and granted 204 days’
sentencing credit from March 10, 2021 (when Appellant’s six-month parole
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5 In the interim, Appellant had filed a motion to withdraw her guilty plea. At
the beginning of the hearing, however, she orally withdrew that motion. N.T.,
9/30/21, at 4.
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violation sentence purportedly ended), through September 30, 2021 (date of
the sentencing hearing).6 Id. at 11.
Appellant filed a timely post-sentence motion. She sought additional
sentencing credit, starting from November 4, 2020, the date the detainer in
the Lackawanna County case was lodged against her. The trial court denied
relief, reasoning:
Credit time from November [4,] 2020 to [March 10,] 2021 is not
valid for [Appellant] as she was serving time for a separate matter
of parole violation expiring [on March 10,] 2021. Therefore, the
correct credit time would be from March [10,] 2021 to September
[30,] 2021, which is what this Court credited [Appellant] with.
Trial Ct. Op. at 2. We infer from this statement that Appellant has been
continuously in custody since she was detained on November 4, 2020, for the
parole violation.
Appellant took this timely appeal, and Counsel filed a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal, raising the
instant same sentencing credit claim. Counsel has now filed, however, with
this Court an Anders brief and petition to withdraw. Appellant has not filed
any pro se or counseled response.
“This Court must first pass upon counsel’s petition to withdraw before
reviewing the merits of the underlying issues[.]” Commonwealth v.
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6 The trial court also ordered Appellant to pay, jointly and severally with
Jessica and Maldonado, total restitution of $14,484.86. See N.T., 9/30/21,
at 10.
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Orellana, 86 A.3d 877, 879 (Pa. Super. 2014). 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 and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. . . .
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted). In addition, pursuant to Santiago, counsel’s brief 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 record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Commonwealth v. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017),
quoting Santiago, 978 A.2d at 361. If this Court determines that counsel has
satisfied the technical requirements of Anders and Santiago, we then
conduct an independent review of the record to discern if there are non-
frivolous issues. Schmidt, 165 A.3d at 1006 (citation omitted).
Here, Counsel’s petition to withdraw averred he: (1) “made a
conscientious review of the entire case and the issues” Appellant wished to
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raise on appeal, and has determined an appeal would be “wholly frivolous;”
and (2) provided a copy of the Anders brief to Appellant, and advised her she
may answer or object to the Anders brief. Counsel’s Motion for Leave to
Withdraw as Counsel, 5/18/22, at 1-2. Counsel attached a copy of the letter
sent to Appellant, which advised of his conclusion that Appellant’s issues are
frivolous, and that Appellant had a right to retain private counsel or proceed
pro se.
In the Anders brief, Counsel presents one issue: whether the trial court
should have awarded sentencing credit from November 4, 2020, when the
detainer in the Lackawanna County matter was lodged against Appellant for a
parole violation. Anders Brief at 18. Counsel’s entire review of this issue
spans five sentences and is generally a verbatim reproduction of the trial
court’s opinion:
On or about September 10, 2020, a warrant was issued for
[Appellant’s] arrest because she absconded from supervision on
September 4, 2020 (Lackawanna County Information Numbers
359,365, and 294-2009-Criminal). [Appellant] was detained on
the warrant on or about September 10, 2020. At that time
[Appellant] waived her right to a Parole Violation Hearing and was
ordered to serve six . . . months of incarceration for the violation.
This period of incarceration expired on March 10, 2021, and
therefore [Appellant] was given credit time from March 10, 2021,
to the date of sentencing. The fact that the detainer was lodged
on November 4, 2020, is not relevant to the order in which the
sentences are served because [Appellant] was serving a separate
period [of] incarceration due to the parole violation.
See Anders Brief at 18-19; compare with Trial Ct. Op. at 2.
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We reiterate that neither the trial court’s opinion nor Anders review
includes any discussion of legal authority. The Commonwealth’s four-
paragraph argument, meanwhile, cites an irrelevant statement of law: “[A]
trial judge [cannot] impose a sentence on a parole violator for a crime
committed while on parole to run concurrently with the time remaining on his
original sentence.” See Commonwealth’s Brief at 4, quoting Commonwealth
v. Dorian, 468 A.2d 1091, 1092 (Pa. 1983) (parole violator who is sentenced
for another offense must serve their back time and the new sentence in
consecutive, not concurrent, order).7
Nevertheless, we consider the relevant standard of review:
A claim asserting that the trial court failed to award credit for time
served implicates the legality of the sentence. Issues relating to
the legality of a sentence are questions of law. Our standard of
review over such questions is de novo and the scope of review is
plenary.
Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa. Super. 2018) (citations
omitted).
With respect to a defendant detained for both a parole violation and a
new arrest, this Court has explained:
[A]ll time served by a parole violator while awaiting disposition on
new charges must be credited to the original sentence if the
inmate remains in custody solely on a Board detainer.
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7 Here, the trial court did not impose Appellant’s instant sentence to run
concurrently with her Lackawanna County parole-violation sentence. In any
event, the issue concerns sentencing credit, not the consecutive or concurrent
nature of her sentence.
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If the inmate is incarcerated prior to disposition and has both a
detainer and has failed for any reason to satisfy bail, the
credit must be applied to the new sentence by the sentencing
court. If the new sentence is shorter than the time served, the
balance can be applied to the original sentence, but the sentencing
court must specify “time served[”] in the sentencing order for the
new offense, so that the Board will be able to apply the credit.
Gibbs, 181 A.3d at 1167 (paragraph break & emphases added, other
emphases omitted), quoting Commonwealth v. Mann, 957 A.2d 746, 751
(Pa. Super. 2008).
Pursuant to Gibbs, if Appellant were in custody “solely on a Board
detainer[,]” her sentencing credit must be applied to the original sentence.
See Gibbs, 181 A.3d at 1167. On the other hand, if Appellant were detained
on both the parole violation detainer and the instant charges, and failed to
satisfy bail on the instant charges, then sentencing credit “must be applied to
the new sentence.” See id.Neither the trial court nor Counsel explain, however, whether Appellant
satisfied bail. As stated above, a “Bail Release Conditions” form was signed
on October 23, 2020 — before the November 4, 2020, detainer issued in this
case. Meanwhile, as noted above, the trial court’s discussion implies that
Appellant has been incarcerated since that November 4 date, in stating
Appellant is entitled to sentencing credit — however applied — from November
4, 2020, through the date of sentencing, September 30, 2021.
In sum, the certified record, the sentencing transcript, the trial court’s
opinion, and the parties’ briefs do not include sufficient information for this
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Court to review whether the trial court properly denied sentencing credit, in
this case, for the period between November 4 2020, and the sentencing
hearing. We reiterate neither the trial court nor Counsel has cited the legal
authority they relied upon.
Accordingly, we determine Counsel has not complied with the
requirements of Santiago and deny his petition to withdraw from
representation. See Schmidt, 165 A.3d at 1006 (Anders brief shall set forth
controlling case law or statutes that have led to the conclusion that the appeal
is frivolous). We remand this appeal and direct the trial court to file, within
30 days of this memorandum, a supplemental opinion addressing the issues
we have identified above. Within 20 days of the filing of the supplemental
trial court opinion, Counsel shall file either: (1) an advocate’s brief; or (2) new
Anders petition along with an amended Anders brief. The Commonwealth
shall then have 20 days to file an amended brief, if it so desires.
Counsel’s petition to withdraw from representation denied. Case
remanded with instructions. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2023
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