Commonwealth v. Stoneroad

• Decision Date: 12 May 2015
• Docket Number: No. 1607 MDA 2014,J-S26020-15,1607 MDA 2014
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. DANIEL C. STONEROAD Appellant

COMMONWEALTH OF PENNSYLVANIA Appellee v. DANIEL C. STONEROAD Appellant

J-S26020-15

No. 1607 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MAY 12, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence of August 25, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-SA-0000145-2014

BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:

Daniel C. Stoneroad appeals from the judgment of sentence that was imposed by the trial court following his summary conviction of driving while operating privilege is suspended or revoked (DUI-related).¹ Counsel for Stoneroad has petitioned for leave to withdraw as counsel on the ground that Stoneroad's issues on direct appeal are wholly frivolous. We grant the petition for leave to withdraw as counsel, and we affirm the judgment of sentence.

The trial court set forth the underlying history of this case as follows:

On April 8, 2013, Trooper Michael Trotta, employed by the Pennsylvania State Police for approximately the last four (4) years, while on patrol conducted a traffic stop at the intersection of [Route] 225 and Rakers Mill Road. While Trooper Trotta was pulling out from Rakers Mill Road onto Route 225, Trooper Trotta observed a blue compact car. The driver of this blue compact car was the defendant, Daniel Stoneroad. Trooper Trotta testified that he was familiar with [Stoneroad] from previous incidents, domestics, or other traffic incidents and knew him to have a suspended driver's license. A Pennsylvania Department of Transportation Bureau of Driver Licensing Certified Driving History was entered into evidence indicating [Stoneroad] to indeed have a suspended driver's license. The Certified Driving History indicated that [Stoneroad] was convicted of numerous violations of 75 Pa.C.S.A. § 1543(b)(1) (DUI related) and also a violation [of] 75 Pa.C.S.A. § 3802(c) (DUI related).

On cross-examination, Trooper Trotta testified that he was familiar with [Stoneroad] because he had stopped [Stoneroad] "a bunch of times for driving under suspension." Trooper Trotta testified that he was able to see [Stoneroad] sitting in [Stoneroad's] car. The road [Stoneroad] was pulling out of was perpendicular to the road that Trooper Trotta was traveling on. Trooper Trotta indicated that it could not have been more than ten (10) to . . . twenty (20) feet from him to [Stoneroad].

Following cross-examination of Trooper Trotta, [Stoneroad's] counsel attempted to have [Stoneroad] testify. [Stoneroad] was being unduly [un]cooperative and no questions were asked of him. [Stoneroad] had attempted to discuss three issues that he wanted to preserve on [appeal]. [Stoneroad] was informed that his appellate rights were going to attach regardless of what the decision was.¹⁴

¹⁴ It is also noted that [Stoneroad's] counsel indicated that he had explained to [Stoneroad] that his appellate rights were going to attach regardless.

Trial Court Opinion ("T.C.O."), 12/4/2014, at 2-3 (record citations and most footnotes omitted).

On August 25, 2014, following a summary appeal hearing, the trial court found Stoneroad guilty, assessed a $500 fine, and awarded Stoneroad credit for time served to discharge a sentence of sixty to ninety days'incarceration. Stoneroad timely appealed. On November 4, 2014, counsel for Stoneroad filed a statement of intent to file an Anders/McClendon² brief in lieu of a statement of errors pursuant to Pa.R.A.P. 1925(b). The trial court entered its Pa.R.A.P. 1925(a) opinion on December 4, 2014.

On December 29, 2014, counsel for Stoneroad filed with this Court an Anders brief in which he presented issues that might arguably support an appeal. Counsel filed a petition for leave to withdraw as counsel on the same day, in which he stated that, after a conscientious examination of the record, he determined that the appeal would be frivolous. See Petition for Leave to Withdraw as Counsel, 12/29/2014, at unnumbered page 1 ¶ 3. Attached to the petition is a copy of a letter that counsel sent to Stoneroad advising him of counsel's intent to seek withdrawal as his counsel and of Stoneroad's right to retain new counsel or to proceed with his appeal pro se, and providing him with a copy of the Anders brief filed with this Court. See id. at Exhibit C. Stoneroad has not responded to counsel's petition for leave to withdraw.

[I]n the Anders brief that accompanies . . . counsel's petition to withdraw, counsel 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. Santiago, 978 A.2d 349, 361 (Pa. 2009).

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). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.

Commonwealth v. O'Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008) (citations omitted).

In the instant case, counsel has complied substantially with the Anders and Santiago requirements. Counsel has submitted a brief that summarizes the case and cites to the record, see Anders Brief at 6-7; refers to anything that might arguably support the appeal, id. at 8; and sets forth his reasoning and conclusion that the appeal is frivolous, id. at 9-13. See Santiago, 978 A.2d at 361. Counsel has filed a petition for leave to withdraw as counsel, sent Stoneroad a letter advising him that counsel foundno non-frivolous issues, provided Stoneroad with a copy of the Anders brief, and notified Stoneroad of his right to retain new counsel or proceed pro se. Stoneroad has not responded.

"Once counsel has satisfied the [Anders] requirements, it is then this Court's duty to conduct its own review of the trial court's proceedings and render an independent judgment as to whether the appeal is, in fact, wholly frivolous." Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citation omitted).

In the Anders brief, counsel identified three potential questions for our review:

1. Whether the trial court illegally sentenced [Stoneroad] to the mandatory minimum sentence of sixty (60) days' incarceration pursuant to 75 Pa.C.S.A. [§] 1543(b)(1) as the statute at issue is unconstitutional as a whole since it violates [Stoneroad's] right to a jury trial under Article I, Section IX of the Pennsylvania Constitution and the Sixth Amendment to the United States Constitution?

2. Whether the Commonwealth failed to present sufficient evidence to sustain [Stoneroad's] conviction for driving while his operating privileges were suspended or revoked where [Stoneroad's] suspension related to his initial conviction for driving under the influence of alcohol had concluded?

3. Whether 75 Pa.C.S.A. [§] 1543 is unconstitutional as a whole where it violates [Stoneroad's] right of interstate movement under the Privileges and Immunities Clause to [sic] the United States Constitution, Article IV, Section 2, Clause 1?

Anders Brief at 5.

In his first issue, Stoneroad asserts that his mandatory minimum sentence of sixty days' incarceration is illegal because the statute is"unconstitutional as a whole since it violates [Stoneroad's] right to a jury trial[.]" Id. at 9. We disagree.

"Issues relating to the legality of a sentence are questions of law. . . . Our standard of review over such questions is de novo and our scope of review is plenary." Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citations omitted).

A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction. The phrase "illegal sentence" is a term of art in Pennsylvania Courts that is applied to three narrow categories of cases. Those categories are: (1) claims that the sentence fell outside of the legal parameters prescribed by the applicable statute; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The instant case falls into the latter category.

In Apprendi, the Supreme Court of the United States held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Stated another way, it "is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." Id. (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S. Ct. 1215, 143 L. Ed. 2d 311, (1999) (Stevens, J. concurring)).

Commonwealth v. Munday, 78 A.3d 661, 664-65 (Pa. Super. 2013) (some citations and quotation marks omitted).

Here, Stoneroad argues that,...