Opinion
J-S27021-18 No. 1792 EDA 2017
11-08-2018
COMMONWEALTH OF PENNSYLVANIA v. GENNARO RAUSO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order April 24, 2017
In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001821-2010 BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J. MEMORANDUM BY SHOGAN, J.:
Appellant, Gennaro Rauso, appeals from the April 24, 2017 order denying his June 9, 2016 motion to vacate the August 10, 2011 order of restitution. In addition, Appellant's counsel has filed a petition to withdraw as counsel and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We permit counsel to withdraw and affirm.
The trial court summarized the extensive history of this case as follows:
A criminal complaint was filed on September 23, 2009, by Corporal Christopher Kennedy, Norwood Police Department, charging Gennaro Rauso (hereinafter referred to as "Rauso" and/or ["Appellant"]) with, inter alia, theft by deception1 and deceptive business practices.2 On this same date (September 23, 2009), the magisterial district judge issued for [Appellant] a bench warrant. . . .
1 18 Pa.C.S. § 3922.
2 18 Pa.C.S. § 4107.
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On August 10, 2011, [Appellant] entered a counseled, negotiated guilty plea to Information B-Theft by Deception, a felony of the third degree, and Information E-Deceptive Business Practices, also a third degree felony. N.T. 8/10/11, pp. 11-13. The prosecution consistent with the plea agreement's terms orally motioned, of-record, to amend its past filed criminal informations to recognize [K]arla Murray as an additional victimized owner of property, who incurred a financial loss, and that Information E (deceptive business practices) also be amended to reflect an amount at issue over two-thousand ($2,000.00) dollars, as well as a resultant third degree felony gradation. These
Commonwealth amendment applications were allowed, absent defense objection. N.T. 8/10/11, pp. 5-7. . . .
Immediately subsequent to his entering this plea of guilty and his attorney waiving such an investigation, [Appellant] was sentenced wholly consistent with the lawyers' plea negotiations as follows: Information B (Theft by Deception)-A term of eighteen (18) through thirty-six (36) months incarceration at a state correctional facility; and Information E (Deceptive Business Practices)-A fifteen (15) through thirty-six (36) month period of imprisonment at a state correctional institution. [Appellant] . . . was not entitled to any time served credit and was deemed for recidivism risk reduction incentive consideration13 ineligible, without defense opposition. N.T. 8/10/11, pp. 8, 22. Additionally, per the plea understanding, these sentences were directed to run consecutively to each other (Informations B and E), but the entirety of [Appellant's] sentence at bar was ordered to be served concurrently with his June 20, 2011, sentence past imposed by the District Court of the Eastern District of Pennsylvania under docket, United States v. Rauso, No. DPAE 2: 10 CR 000406-001, an aggregate period of incarceration of one hundred sixty (160) months followed by three (3) years supervised release. See Certificate of Imposition of Judgment of Sentence. N.T. 8/10/11, pp. 20-22. . . .
13 61 Pa.C.S. §§ 4501 et seq.
No timely or post-sentence motions otherwise were lodged, including any pleading advancing a challenge to the sentence's legality and/or a request to withdraw [Appellant's] previously entered negotiated guilty plea. No direct appeal to the Superior Court of Pennsylvania was filed.
In the course of his ongoing collateral litigation before this court,14 [Appellant] on June 9, 2016, lodged a Motion to Vacate August 10, 2011 Restitution Order [etc. and for the Return of Said Restitution], as well as a Brief in Support. . . .
14 [Appellant] on July 16, 2012, lodged a self-represented Petition for Post Conviction Collateral Relief [("PCRA")]. See [Appellant's] PCRA Petition dated July 16, 2012. This petition being his first such collateral pleading [Appellant] was entitled to counsel's assistance. . . .
[Appellant] was previously court designated two (2) lawyers material to the PCRA proceedings. Following the respective breakdowns of attorney-client relations between [Appellant] and these lawyers, he per such an application was permitted to proceed pro se with . . . "standby counsel." . . . N.T. 8/28/15; Order dated September 1, 2015. See also Commonwealth v. Grazier, 552 Pa. 9, 12-13, 713 A.2d 81, 82 (1998). See generally Pa.R.Crim.P. 121.
Following the filing of his initial collateral petition, [Appellant] lodged a plethora of various self-represented and a significantly lesser number of counseled pleadings during his PCRA litigation. . . .
At the listing of June 14, 2017, inter alia, [Appellant] orally advanced, of-record, an application for the re-appointment of Post Conviction Relief Act counsel. N.T. 6/14/17.
Via an order dated June 15, 2017, this court designated William P. Wismer, Esquire as [Appellant's] collateral attorney and directed he file an amended PCRA pleading. . . . This court through another order also of June 15, 2017, relatedly allowed that Mr. VanRensler was relieved of his past appointment as [Appellant's] "standby counsel." . . .
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[Appellant] on July 17, 2017, lodged his Amended, Counseled Petition for Post Conviction Relief. . . .
An evidentiary hearing as then scheduled in the above-captioned matter regarding [Appellant's]
counseled, amended PCRA filing commenced and concluded on August 8, 2017. . . .
At the beginning of this proceeding . . . [Appellant] opted to appear and participate at this hearing (August 8, 2017) via telephone, an election consistent with his stated and preferred such practices. . . . N.T. 8/8/17, p. 5-6. . . .
Per an order dated August 9, 2017, this court denied [Appellant's] Amended, Counseled Petition for Post Conviction Relief. . . . [Appellant] did not lodge an appeal from this court's denial of his amended, counseled PCRA petition.
The court on February 10, 2017, entered a hearing notice for February 24, 2017, relevant to, inter alia, [Appellant's] Motion to Vacate August 10, 2011 Restitution Order . . . .
[Appellant] on February 22, 2017, filed a Supplemental Brief in Support of Motion to Vacate August 10, 2011 Restitution Order. . . .
As past listed, a hearing regarding, inter alia, [Appellant's] motion to vacate the restitution order commenced and concluded on February 24, 2017, before this court. N.T. 2/24/17.
By an order dated February 27, 2017, the court denied [Appellant's] Motion to Vacate August 10, 2011 Restitution Order. . . .
On March 22, 2017, [Appellant] filed a Motion to Vacate, Rescind . . . [t]his [c]ourt's February 27, 2017 Order Denying [Appellant's] Motion to Vacate August 10, 2011 Restitution Order . . . .
In an effort to timely resolve this then most recent lodging (March 22, 2017) and recognizing the same was a defense filing, as well as the logistical challenges of scheduling at bar electronic proceedings,15 the court set this reconsideration motion to also be addressed at a hearing already in place for March 30, 2017. . . .
15 [Appellant] throughout the collateral litigation and restitution payment challenge before this court was
incarcerated at FCI Schuylkill resulting from his June 20, 2011, sentence past imposed by . . . United States v. Rauso, No. DPAE 2: 10 CR 000406-001. . . .
As the order denying the challenge to his restitution payment obligation [Appellant] sought to have revisited was entered on February 27, 2017, this court only retained its jurisdiction requisite to reconsider this motion pursuant to 42 Pa.C.S. §5505 (Modification of Orders) through March 29, 2017. This court to preserve the jurisdictional authority necessary to that which it believed stemming from the then listed reconsideration hearing to be a next proper course of action was thus constrained to vacate the original order of denial (February 27, 2017), address any such concerns at the upcoming hearing (March 30, 2017), and again review its February 27, 2017, order in light of the same following of this scheduling's (March 30, 2017) conclusion. . . .
A hearing regarding, inter alia, the Motion to Vacate, Rescind . . . [t]his [c]ourt's February 27, 2017 Order Denying [Appellant's] Motion to Vacate August 10, 2011 Restitution Order . . . began and ended on March 30, 2017, before this court. N.T. 3/30/17.
Resulting from the March 30, 2017, listing, the court through an order of April 24, 2017, reinstated its February 27, 2017, order denying [Appellant's] Motion to Vacate August 10, 2011 Restitution Order . . . . N.T. 2/24/17; and N.T. 3/30/17.
The then self-represented [Appellant] lodged on May 4, 2017, a notice of appeal16 from this court denying the motion to vacate his restitution sentencing payment obligation, as well as his vacating of restitution reconsideration's subsequent denial.17
16 [Appellant] on May 4, 2017, contemporaneously lodged a second appeal notice stemming from this court denying his application for the amendment of
Trial Court Opinion, 12/29/17, at 1-5 (some footnotes and internal citations omitted).the certificate of imposition of judgment of sentence and his sentencing certificate amendment reconsideration's refusal. See Notice of Appeal dated May 4, 2017, and Superior Court No. 1460 EDA 2017 . . . . (This appeal . . . was withdrawn by [Appellant] through his lodging of such a Praecipe for Discontinuance on August 25, 2017. . . .
By an order of June 9, 2017, the Superior Court recognized that [Appellant] had past filed (2) notices of appeal, but for whatever the reasons its prothonotary's office was only in receipt of one (1) appeal notice. See Superior Court No. 1460 EDA 2017, Order dated June 9, 2017. The appellate court via its order (June 9, 2017) thus directed the trial court to forward "... any other notice of appeal in its possession filed by Appellant." See Superior Court No. 1460 EDA 2017, Order dated June 9, 2017. This court per an order of June 13, 2017, instructed "... that the Delaware County Office of Judicial Support SHALL IMMEDIATELY send to the Pennsylvania Superior Court's Prothonotary [Appellant's] Notice of Appeal dated May 4, 2017, relevant to this court denying [Appellant's] motion to vacate his restitution sentencing payment obligation, as well as his vacating of restitution reconsideration's denial. . . .
17 Although the relevant Pennsylvania rule of appellate procedure provides a trial court may instruct a defendant to lodge a statement of error assignments, it is not required to take such action. See Pa.R.A.P. 1925(b) . . . .
Requiring on the salient record no such additional clarification, . . . this court has elected not to direct [Appellant] to lodge an appellate complaints statement. . . .
Ms. Murray's given name is misspelled throughout the record and appellate briefs. N.T., 3/10/10, at 4. Also, for purposes of clarity, at the guilty plea hearing, the Commonwealth stated as follows:
There is restitution owed to [Karla] Murray in this matter, Your Honor, in the amount of $6,500. So the [c]ourt's aware, that restitution was pre-paid by [Appellant] during the course of this proceeding, as been—being held in escrow by Court Financial Services. I do have a stipulation that's signed by [defense counsel] and myself, and I would ask the [c]ourt to enter the stipulation as an Order of the [c]ourt, releasing that $6,500 funds to Ms. [Karla] Murray, who's present in the courtroom here, Your Honor, along with the other victim in this matter, Ms. Brandy Murray. . . .N.T. (Guilty Plea), 8/10/11, at 5-6.
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Your Honor, I need the record to be clear, I would need to make a Motion to amend the Informations that [Appellant] is pleading to. The victim's name was in the Information list, Ms. Brandy Murray only. Property, the money put up for the rental of the house was actually both Ms. Brandy and [Karla] Murray's property, so I would make a Motion to amend that Information as well.
The trial court listed forty-seven filings by Appellant dated from July 16, 2012, through July 17, 2017.
The PCRA court thus appointed three different counsel to represent Appellant during the PCRA proceedings.
To recap, following the February 24, 2017 hearing, the trial court denied Appellant's motion for return of restitution on February 27, 2017. On March 24, 2017, the trial court vacated the February 27, 2017 order and held another hearing on March 30, 2017. On April 24, 2017, the trial court reinstated the February 27, 2017 order, and Appellant filed the instant notice of appeal to this Court.
On June 28, 2017, Appellant, pro se, filed an application to consolidate his two appeals, the instant appeal and the appeal at Superior Court Docket Number 1460 EDA 2017. We denied the request to consolidate on August 1, 2017. Present counsel, appointed by the common pleas court on June 15, 2017, entered his appearance in this Court on August 11, 2017. On August 25, 2017, counsel filed a praecipe to withdraw the appeal docketed at 1460 EDA 2017, and we discontinued the appeal that day.
As noted supra, on March 6, 2018, Appellant's counsel filed an application to withdraw and an Anders brief. On April 2, 2018, pro se Appellant filed a "Letter of Intent to Oppose Anders," which our Prothonotary filed as Appellant's "Answer to Application to Withdraw as Counsel." Thus, when this Court received Appellant's request for an extension of time to file his response to counsel's request to withdraw, or "Answer," we denied the request as moot by order dated May 18, 2018. Appellant filed a second application for relief requesting an extension to file his response to counsel's petition to withdraw, explaining that his April 2, 2018 filing was merely an intent to file a response, not the actual response. On June 22, 2018, we granted Appellant a thirty-day extension of time to file his response, which he filed on July 26, 2018. On August 8, 2018, counsel filed a second motion to withdraw as counsel. On September 7, 2018, the Commonwealth filed a responsive brief to Appellant's "Response in Opposition to Appellate Counsel's Anders Brief and Motion to Withdraw as Counsel," as ordered by this Court on June 22, 2018. The matter is now ripe for review.
In light of our decision herein to grant counsel's application to withdraw as counsel filed on April 18, 2018, the second application to withdraw filed on August 8, 2018, is denied as moot.
The underlying facts of the crimes, as set forth in the affidavit of probable cause, are as follows:
Appellant stipulated at the guilty plea hearing that the affidavit of probable cause established an adequate factual basis for the guilty plea. N.T. (Guilty Plea), 8/10/11, at 12.
On Friday, September 4th, 2009, I received a complaint from Brandi Murray who resides at 113 Harrison Avenue, Norwood, Pa. 19074. Murray states she rents a house known as 113 Harrison Avenue, in Norwood, stating she entered into a residential lease agreement with [Appellant] of D and B Property Investors Corporation in June of 2009. The lease became effective June 1st, 2009 and was to continue [until] May 30th and then become month to month from there.
The lease states that Lessee agrees to pay a sum of one-thousand three hundred one dollar[s] and three cents per month by depositing the funds into TD Bank, Account #368366662 in Cash or Money order only. Murray states that [Appellant] was given first, last and a security deposit totaling $3,900.00 and subsequently has given $2,600.00 to [Appellant] in rent.
Murray came to police headquarters today because she received a notice to vacate the property, by the Sheriff's Department. Murray stated that the Veterans' Administration actually owns the house after the prior owners Alexandrowicz defaulted on their mortgage. Murray stated that [Appellant] in an e-mail stated "whenever you get anything legal coming in, all u have to do is fax it to me. The Sheriff may be there to serve
papers. I will explain the whole process to you when I get back from vacation."Affidavit of Probable Cause, 9/23/09, at unnumbered 1-2.
I then called the Veterans' Administration Housing Division who told me that Bank of America deals with all of their foreclosures. I then contacted Bank of America Fraud Division and was told that the house was owned by the Veteran's Administration and that at no time was [Appellant] or D and B property Investors Corporation given permission to rent out the property located at 113 Harrison Avenue in Norwood, Pa. 19074. Bank of America representatives did tell me that the prior owner was given an opportunity to hand over the keys in December of 2008 for a sum of two-thousand dollars but the owner Donna Alexandrowicz declined. Bank of America stated that it was standard practice to offer homeowners money to vacate a foreclosed property so that the Sheriffs Department doesn't have to get involved.
I was then able to find the prior owner[]s of 113 Harrison Avenue, and spoke with Donna Alexandrowicz. Alexandrowicz did tell me that in April of 2009, she was offered $700 by [Appellant] of D and B Property Investors Corporation to sell him the keys to 113 Harrison Avenue, Norwood. Alexandrowicz stated to me that she accepted the offer because she was walking away from the house and wanted nothing more to do with it. Alexandrowicz stated she believed it was an accepted practice due to the initial offer she received in December of 2008. At no time did Alexandrowicz authorize [Appellant] or D and B Property Investors Corporation to use her name in a Residential Lease agreement which was signed by [Appellant], President of D and B Property Investors Corporation.
It is this officer's opinion that [Appellant] did enter into a Residential Lease Agreement on a property in which he held no legal entitlement. [Appellant] also authored and signed a rental agreement which held a prior owner's name [of] which the owner had no knowledge. [Appellant] did have deposited into his TD Bank Account #368366662 a total of six-thousand five hundred two dollars and six cents, which he had no authority to collect.
In the Anders brief, counsel describes the issues "that arguably support the appeal," as follows:
The issues that support the within appeal, culled from the various pleadings, supporting briefs and hearings, can be divided into three categories: the first category are questions pertaining to the specific terms of the plea agreement. Appellant contends that the record does not support the conclusion that Appellant agreed to pay restitution to [K]arla Murray as a specific term of the plea agreement. He also contends that the Assistant District Attorney failed to state the terms of the agreement, that he failed to state that Appellant agreed to pay restitution to [K]arla Murray, neither Appellant nor his counsel ever stated an agreement to pay restitution; Appellant also posits that the trial court never established the terms of the plea agreement, never asked Appellant if he agreed to the terms of the plea agreement and never asked Appellant if he agreed to pay restitution to [K]arla Murray as part of the plea agreement. Appellant faults the trial court's finding that he agreed to pay restitution to [K]arla Murray as lacking support in the record. Appellant alleges a violation of Pa.R.Crim.P. . . . 590. The second category are questions pertaining to [K]arla Murray's status in [the] matter. Appellant contends that [K]arla Murray did not suffer loss of earnings and cannot be considered a victim, as that term is defined by 18 Pa.C.S.A. Section 1106. He also alleges that the trial court is powerless to order restitution to [K]arla Murray because she was not named as a victim in the Information and no adequate motion to amend to include her as a victim was made by the Commonwealth or granted by the court. He also contends that [K]arla Murray and Brandi Murray were complicit in the crimes he committed because they were on constructive notice that Appellant did not have title to the property he purported to lease to them. As "unindicted co-conspirators," [K]arla Murray and Brandi Murray cannot be victims of Appellant's crimes. Appellant also claims that even if he did agree to pay restitution to [K]arla Murray, the Commonwealth was nonetheless required to present evidence at the plea hearing that would show she is a victim. None having been offered, the court cannot order restitution to her. (3) The third category are Appellant's contentions that the sentence imposed by the court cannot run concurrently with his Federal sentence because of the "primary jurisdiction rule." Appellant contends that concurrent sentences were indeed part of the negotiated plea and because the sentences cannot run
concurrent, he has not gotten his benefit of the bargain and is therefore entitled to have restitution monies returned to him.Appellant's Brief at 21-23.
The statement of the issues in the Anders brief does not comply with Pa.R.A.P. 2116(a). See Commonwealth v. Sanford , 445 A.2d 149, 150 (Pa. Super. 1982) ("When issues are not properly raised and developed in briefs, and when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof.") (citations omitted). While the statement of the issues fails to comport with our appellate rules, "in the interest of justice we address the arguments that can reasonably be discerned . . . ." Commonwealth v. Lyons , 833 A.2d 245, 252 (Pa. Super. 2003).
We may not review the merits of any underlying issues without first examining counsel's petition to withdraw as counsel. Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Moreover, there are procedural and briefing requirements imposed upon an attorney who seeks to withdraw on appeal. The procedural mandates are that 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 [his client]; and 3) advise [his client] that he or she has the right to retain private counsel or raise additional arguments that the [client] 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;Santiago , 978 A.2d at 361.
(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.
Appellant's counsel has complied with the first prong of Santiago by providing a summary of the procedural history in the Anders brief. He has satisfied the second prong by referring to any evidence in the record that he believes arguably supports the appeal. Counsel also set forth his conclusion that the appeal is frivolous, and he stated his reasons for that conclusion, with appropriate support. Moreover, counsel filed a separate motion to withdraw as counsel, wherein he stated that he examined the record and concluded that the appeal is wholly frivolous. Further, counsel has attempted to identify and develop any issues in support of Appellant's appeal. Additionally, counsel sent a letter to Appellant, and he attached a copy of the letter to his Anders Brief. In the letter counsel stated that he informed Appellant that he has filed an Anders brief, and he apprised Appellant of his rights in light of the motion to withdraw as counsel. Appellant has filed a response to counsel's request to withdraw.
While counsel has not included an averment that the trial court did not order the filing of a Pa.R.A.P. 1925(b) statement, as required by Pa.R.A.P. 2111(d), we will not quash the Anders brief for this reason. The trial court opinion makes clear that the trial court did not order the filing of a Rule 1925(b) statement. Trial Court Opinion, 12/29/17, at 5 n.17.
Based on the foregoing, we conclude that the procedural and briefing requirements of Anders and Santiago for withdrawal have been met. Therefore, we now have the responsibility to make an independent judgment regarding whether the appeal is, in fact, wholly frivolous. Commonwealth v. Tukhi , 149 A.3d 881, 886 (Pa. Super. 2016). First, however, we must address the basis for our jurisdiction to consider the merits of Appellant's claims. Commonwealth v. Gentry , 101 A.3d 813, 816 (Pa. Super. 2014). We may raise issues concerning jurisdiction sua sponte. Commonwealth v . Andre , 17 A.3d 951, 957-958 (Pa. Super. 2011).
The instant appeal is from the trial court's order refusing to vacate the order of restitution. In Gentry , we explained as follows:
[T]his Court has held that the restitution statute, Section 1106 of the Crimes Code, "permit[s] a defendant to seek a modification or amendment of the restitution order at any time directly from the trial court." Commonwealth v. Stradley , 50 A.3d 769, 772 (Pa. Super. 2012), citing Commonwealth v . Mitsdarfer , 837 A.2d 1203, 1205 (Pa. Super. 2003). Our case law in this Commonwealth establishes that the statute creates an independent cause of action for a defendant to seek a modification of an existing restitution order. Id.; see also 18 Pa.C.S.A. § 1106(c)(3) (stating, "[T]he court may, at any time or upon the recommendation of the district attorney . . . alter or amend any order of restitution made pursuant to paragraph (2), provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order[.]") (emphases added). . . .Gentry , 101 A.3d at 816 (emphases in original). We have interpreted this provision to permit a defendant to seek modification of a restitution order at any time from the trial court pursuant to 18 Pa.C.S. § 1106, and not through PCRA. See Commonwealth v. Mitsdarfer , 837 A.2d 1203 (Pa. Super. 2003) (holding that proper remedy when defendant requests a reduction in the amount of restitution is through trial court pursuant to 18 Pa.C.S. § 1106, and not through PCRA); Stradley , 50 A.3d at 772 (same). Thus, there is no impediment to our review on the merits.
We note our well-settled standard of review. In the context of criminal proceedings, an order of "restitution is not simply an award of damages, but, rather, a sentence." Commonwealth v. Atanasio , 997 A.2d 1181, 1182-1183 (Pa. Super. 2010) (citing Commonwealth v. C.L., 963 A.2d 489, 494 (Pa. Super. 2008)). An appeal from an order of restitution based upon a claim that a restitution order is unsupported by the record "challenges the legality, rather than the discretionary aspects, of sentencing." Stradley , 50 A.3d 771-772.
"A challenge to the legality of a sentence . . . may be entertained as long as the reviewing court has jurisdiction." Commonwealth v. Borovichka , 18 A.3d 1242, 1254 (Pa. Super. 2011) (citation omitted). It is also well-established that "if no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction." Commonwealth v. Rivera , 95 A.3d 913, 915 (Pa. Super. 2014) (citation omitted). "An illegal sentence must be vacated." Id. "Issues relating to the legality of a sentence are questions of law; as a result, 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).Gentry , 101 A.3d at 816-817.
Examining the issues we can identify in the Anders brief, we agree with counsel that the appeal is frivolous. Appellant attempts to challenge the legal validity of his counseled, negotiated guilty plea, whether he received the benefit of his bargain, and whether the record supports the court's restitution order. We cite with approval the following passage in the Anders brief, which explains the frivolous nature of Appellant's allegations in his Motion to Vacate August 10, 2011 Restitution Order:
The Assistant District Attorney stated the crimes Appellant would plead to, the grading of the offenses and the recommended sentence. He then stated that "There is restitution owed to Karla Murray . . . in the amount of $6,500.00." He advised the court ". . . that restitution was pre-paid by [Appellant] during the course of this proceeding, as been—being held in escrow by Court Financial Services". Counsel alluded to ". . . a stipulation that's signed here by [Appellant's plea counsel] and myself, and I would ask the [c]ourt to enter the stipulation as an [o]rder of the [c]ourt, releasing the $6,500.00 funds to Ms. Murray, who's present in the courtroom here. . . ." Appellant claims, on the other hand, that the Assistant District Attorney never said that restitution was part of the agreement, and that a motion was never made or granted to amend the Informations to name Karla Murray as a victim. The transcript shows, however, that counsel did in fact make such a motion and alluded to a stipulation for payment of restitution to Karla Murray. While Appellant may establish a technical violation of Rule 590, he is nonetheless not entitled to relief. In order to obtain relief from a violation of the Rules of Criminal Procedure, Appellant must show prejudice. . . .Anders Brief, 9/17/18, at 27 (citing Commonwealth v . Bowman , 840 A.2d 311 (Pa. Super. 2003). Moreover, in affirming this case, we rely on the thorough, detailed, and insightful opinion filed on December 29, 2017, by the Honorable Kevin F. Kelly, who has presided over this case since its inception in 2011.
The parties are directed to attach a copy of the opinion in the event of future proceedings.
We also have considered Appellant's "Response in Opposition to Appellate Counsel's Anders Brief and Motion to Withdraw as Counsel . . .," ("Response") filed on July 26, 2018. In his Response, Appellant asks this Court to disqualify counsel and suggests that counsel's appointment applied only to representation during the PCRA proceedings. Response, 7/26/18, at 1-2, 6, 11, and Exhibit D. Appellant also avers that counsel rendered ineffective assistance in failing to file a praecipe in the common pleas court pursuant to Pa.R.A.P. 301(d) and a notice of appeal from the judgment of sentence because counsel did not send Appellant copies of case law. Id. at 3-5, 9, 12.
In his August 8, 2018 Second Application to Withdraw as Counsel, counsel explains as follows:
That Appellant has at times demanded that the undersigned . . . file with the lower court a praecipe to enter the August 10, 2011 sentencing order into the lower court docket, followed by a Notice of Appeal of that now-entered order to this Court. Appellant is of a mind that such filings will finalize the judgment of sentence so that it is now ripe for direct appeal. To the contrary, as no post sentence motions were filed, Appellant had 30 days after sentence was imposed in open court, to take a direct appeal to this Court, Commonwealth vs. Millsock, 873 A2d 748 (Pa. Super. 2008); Commonwealth vs. Gaines, 127 A3d 15 (Pa. Super. 2015); see also, Pa.R.A.P. Rules 108(d)(2),301(a)(1), (2) and 903. By way of letter dated and sent to Appellant on
January 29, 2018, the undersigned advised Appellant that such filings would not revive a direct appeal of his sentence, citing the above authorities. Appellant does not accept that this Court does not now have jurisdiction to entertain a new direct appeal of a sentence announced and imposed on August 10, 2011. To that end, Appellant has insisted that the undersigned file the above mentioned praecipe and notice of appeal, under threat of referral to the Pennsylvania Supreme Court Disciplinary Board as well as a federal civil rights action for monetary damages. Appellant has made these threats by way of electronic mail and has made them public by including them in his filings with this Court, see, Answer, "Exhibit B[.]"Second Application to Withdraw as Counsel, 8/8/18, at 4-5.
It is well settled that an indigent defendant does not have "a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Commonwealth v. Morrison , 173 A.3d 286, 292 (Pa. Super. 2017) (citing Jones v. Barnes , 463 U.S. 745, 751, (1983)). Further, regarding Appellant's contention that the amendment of the information to include Karla Murray as an additional person from whom Appellant had unlawfully obtained United States currency, the claim has no merit. Pa.R.Crim.P. 564 ("The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense.").
Pa.R.Crim.P. 564 stated as above in 2011, the time of Appellant's guilty plea and sentencing. The rule was amended on December 21, 2016, effective December 21, 2017, to read:
The court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice.
Appellant also filed an application for relief on October 1, 2018, in which he asks this Court to "issue an order upon the Director of the Office of Judicial Support . . . to transmit the documents [Appellant] filed with said Director . . . to the Prothonotary of this Court . . . so this [C]ourt will have appellate jurisdiction to review . . . the decisions the trial court rendered in its August 10, 2011 order . . ." Application for Relief, 10/1/18, at 1. We concluded supra that we have jurisdiction in this matter. Thus, we deny the Application as moot.
For all of these reasons, we grant counsel's petition to withdraw as counsel. Furthermore, we affirm the trial court's April 24, 2017 order denying Appellant's Motion to Vacate August 10, 2011 Restitution Order.
March 6, 2018 petition to withdraw as counsel granted. April 24, 2017 order affirmed. August 8, 2018 petition to withdraw as counsel denied as moot. October 1, 2018 application for relief denied as moot.
Judge Lazarus did not participate in the consideration or decision of this case. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/8/18
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