Commonwealth v. Redmond

• Decision Date: 21 April 2022
• Docket Number: 1226 MDA 2021, No. 1227 MDA 2021
• Parties: COMMONWEALTH of Pennsylvania v. Todd Michael REDMOND, Appellant Commonwealth of Pennsylvania v. Todd Michael Redmond, Appellant
• Court: Pennsylvania Superior Court

273 A.3d 1247

COMMONWEALTH of Pennsylvania

v.Todd Michael REDMOND, Appellant

Commonwealth of Pennsylvania

v.Todd Michael Redmond, Appellant

No. 1226 MDA 2021

No. 1227 MDA 2021

Superior Court of Pennsylvania.

Submitted April 18, 2022

Filed April 21, 2022

Todd Michael Redmond, appellant, pro se.

David W. Sunday, District Attorney, York, for Commonwealth, appellee.

James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Todd Michael Redmond, appeals from the August 16, 2021, judgment of sentence entered in the Court of Common Pleas of York County following his open guilty plea at lower court docket number CP-67-CR-0004038-2018 ("4038-2018") to one count of DUI while BAC .02 or greater-third offense, one count of DUI-controlled substance, and one count of habitual offenders,¹ as well as at lower court docket number CP-67-CR-0003260-2020 ("3260-2020") to one count of DUI-general impairment-fourth or subsequent offense, possession of a controlled substance, and driving while operating privilege is suspended or revoked.²

Additionally, Appellant's counsel has filed a petition seeking to withdraw his representation, as well as a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter " Anders brief"). After a careful review, we grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.

The relevant facts and procedural history are as follows: On June 10, 2021, Appellant, who was represented by counsel, proceeded to a hearing at which he entered an open guilty plea to the charges at both docket numbers indicated supra . Appellant confirmed he could read, write, and understand the English language. N.T., 6/10/21, at 4. He also confirmed no one had threatened, coerced, or promised him anything in exchange for his pleas. Id. at 4-5. He acknowledged he had the right to a jury trial at which the Commonwealth would have the burden to prove, beyond a reasonable doubt, that he committed the charged offenses, and Appellant would have the opportunity to present evidence in his defense. Id. at 5. Appellant indicated it was his desire to waive his right to a trial and enter pleas of guilty. Id. Moreover, Appellant completed a written guilty plea colloquy as to both docket numbers.

With regard to the facts underlying the plea, at lower court docket number 4038-2018, Appellant indicated that, on May 28, 2018, he was driving with a suspended driver's license, DUI related, while under the influence of alcohol and marijuana. Id. at 6. He admitted the alcohol and marijuana impaired his ability to drive safely. Id. He acknowledged that he is a habitual offender. Id. at 7.

With regard to lower court docket number 3260-2020, Appellant indicated that, on June 10, 2020, he was driving while intoxicated with a suspended driver's license, DUI related. Id. He acknowledged he had in his possession liquid marijuana and crack cocaine when the police stopped his vehicle. Id. He admitted the alcohol he consumed prior to driving rendered him incapable of safe driving. Id. at 8.

The trial court determined Appellant knowingly, voluntarily, and intelligently waived his right to a trial, and the trial court accepted Appellant's guilty pleas. Id. at 11-12. The trial court ordered a pre-sentence investigation report.

On August 16, 2021, Appellant proceeded to a sentencing hearing at which he was represented by counsel. At the hearing, defense counsel informed the trial court that Appellant acknowledges he has a drinking problem. N.T., 8/16/21, at 4. Defense counsel admitted Appellant has a lengthy history of DUI; however, defense counsel suggested that, over the course of Appellant's latest incarceration, Appellant has learned that he needs to develop skills to stop drinking and driving. Id. at 4-5. Defense counsel informed the trial court that Appellant has been employed in the prison kitchen, he reads the Bible, and he completed Thinking for a Change. Id. at 5.

Appellant made a statement to the trial court. Specifically, he informed the trial court that, by reading books, he has gotten it through his "thick skull" that he has to stop drinking. Id. He admitted he has been drinking alcohol throughout his life, and it is time for him to make a change. Id. To this end, he has learned he is "triggered" to drink when he "hangs around with old friends[,]" and, thus he is going to "find new ones[.]" Id. at 6. Appellant admitted he puts other people's lives at risk when he drinks and drives, and he attributed it to "stupidity" on his part. Id. Appellant acknowledged the best approach is for him to stop drinking. Id. at 7.

In response, the Assistant District Attorney ("ADA") suggested that, given the many DUI offenses Appellant has had in ten years, and his driver's license is suspended until at least 2028, Appellant's indication he has learned his lesson is insincere. Id. at 8. Specifically, the ADA indicated "[i]f he did not understand the problems he had before [the latest offenses], the fact that it's taken him this long makes me very suspect if he has actually learned anything at all[.]" Id. The ADA asked for a lengthy state sentence on the DUI offenses. Id.

The trial court acknowledged it reviewed the pre-sentence investigation report. Id. at 9. The trial court indicated Appellant is a single male with one dependent, he has a history of DUI offenses, and he has an "abysmal record" of driving with a suspended license. Id. The trial court noted Appellant has an eighth-grade education and never obtained his GED. Id. At the time of his most recent arrest, Appellant was employed at Redmond's Construction, and he has been incarcerated since June 10, 2020. Id. at 9-10. Accordingly, the trial court determined Appellant was entitled to 433 days of credit for time served. Id. at 10.

The trial court indicated Appellant has a prior record score of five, and he has a history of substance abuse, as well as alcohol abuse. Id. The trial court acknowledged receiving a letter from Appellant wherein Appellant indicated he understands the seriousness of his alcohol abuse problem, and he desired leniency. Id. at 11. The trial court then imposed sentence "[b]ased on [Appellant's] history and all the factors we're required to consider[.]" Id.

Specifically, at lower court docket number 4028-2018, the trial court sentenced Appellant to six months to twelve months in prison for DUI while BAC .02 or greater, and one year to two years for DUI-controlled substance, the sentences to run consecutively. The trial court also imposed a concurrent sentence of six months to twelve months in prison for habitual offenders.

At lower court docket number 3260-2020, the trial court sentenced Appellant to two years to five years in prison for DUI-general impairment-fourth or subsequent offense, six months to twelve months in prison for possession of a controlled substance, and six months to twelve months in prison for driving while operating privilege is suspended or revoked. The sentences were imposed concurrently to each other but consecutively to the sentence imposed at docket number 4028-2018.

Appellant filed a timely counseled post-sentence motion at both docket numbers, and the trial court denied the motions on August 20, 2021. Appellant filed a separate counseled notice of appeal at each docket number on September 17, 2021.³ The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the trial court filed a responsive Rule 1925(a) opinion.

On February 18, 2022, counsel filed in this Court a petition seeking to withdraw his representation, as well as an Anders brief. Appellant filed no further submissions either pro se or through privately retained counsel.

Prior to addressing any issue raised on appeal, we must first resolve counsel's petition to withdraw. Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa.Super. 2007) (en banc ). There are procedural and briefing requirements imposed upon an attorney who seeks to withdraw on appeal pursuant to which counsel must:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.

Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa.Super. 2013) (en banc ) (citation omitted). In addition, our Supreme Court in Santiago stated that an Anders 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.

Santiago , 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide the appellant with a copy of the Anders brief, together with a letter that advises the appellant of his or her right to "(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court's attention in addition to the points raised by counsel in the Anders brief." Commonwealth v. Nischan , 928 A.2d 349, 353 (Pa.Super. 2007) (citation omitted). Substantial compliance with the Anders requirements is sufficient. See id.

Herein, counsel filed a petition to withdraw as counsel and an Anders brief. His brief and petition substantially comply with the technical requirements of Anders ...