J-S13016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JAMES BAILEY

                            Appellant                     No. 757 WDA 2014


             Appeal from the Judgment of Sentence April 17, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007997-2013


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                                   FILED JUNE 22, 2015

        Appellant, James Bailey, appeals from the April 17, 2014 aggregate

judgment of sentence of three to six days’ imprisonment, which amounted to

time served, plus 60 days’ intermediate punishment of house arrest, a

$500.00 fine, and $500.00 in restitution, imposed after pleading guilty to

accidents involving damage to attended vehicle or property and driving while

operating privilege is suspended.1             Contemporaneous with this appeal,

Appellant’s counsel has filed with this Court a petition to withdraw, together

with an Anders2 brief, averring the appeal is frivolous. After careful review,

____________________________________________


1
    75 Pa.C.S.A. §§ 3743(a) and 1543(b)(1), respectively.
2
    Anders v. California, 386 U.S. 738 (1967).
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we deny counsel’s petition to withdraw, vacate Appellant’s judgment of

sentence, and remand for further proceedings.3

        The trial court has recounted the brief procedural history of this case

as follows.

              On [April 17, 2014], [Appellant] pled guilty to an
              Accident with Unattended Vehicle charge and Driving
              While Operating Privileges Suspended or Revoked ….
              Th[e trial c]ourt sentenced [Appellant] at Count 1 to
              3-6 days[’] incarceration, with credit for time served
              between 1/10/14 and 1/13/14 and parole forthwith,
              and no further penalty. At Count 2, [Appellant] was
              sentenced to sixty (60) days of restrictive
              intermediate punishment, with releases for work,
              medical, education and religious purposes as may be
              applicable, and imposed the mandatory $500[.00]
              fine and summary court costs. It must be noted that
              there was a mandatory minimum period of
              incarceration of 60 days associated with Count 2.
              [No post-sentence motions were filed].

                     [Appellant] was to begin the house arrest
              portion of his sentence on May 12, 2014. On May 9,
              2014, defense counsel filed the within appeal, as well
              as an Application for Stay of Sentence, Fines, and
              Fees Pending Appeal. Th[e trial c]ourt granted the
              motion on May 14, 2014 and issued an Order
              directing [Appellant] to file a Concise Statement of
              Matters Complained of on Appeal by June 4, 2014.
              On June 4, 2014, defense counsel filed a Petition for
              Extension of Time to File Concise Statement of Errors
              Complained of on Appeal. That petition was granted
              by th[e trial c]ourt on June 11, 2014, and
              [Appellant] was granted an extension to file his
              Concise Statement by July 11, 2014.

Trial Court Opinion, 9/16/14, at 1-2.
____________________________________________


3
    The Commonwealth has elected not to file a brief in this matter.



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       On July 11, 2014, counsel filed a Statement of Intent to file an

Anders/McClendon brief in accordance with Pennsylvania Rule of Appellate

Procedure 1925(c)(4) which states, “[i]n a criminal case, counsel may file of

record   and    serve    on   the    judge     a   statement   of   intent   to   file   an

Anders/McClendon brief in lieu of filing a Statement.”                  Thereafter, on

September 16, 2014, the trial court filed its Rule 1925(a) opinion asserting

Appellant has waived all issues for failing to file a Rule 1925(b) statement.

However, as set forth above, counsel’s statement of intent to file an

Anders/McClendon brief satisfies the mandates of Rule 1925. Accordingly,

we may address the merits of the issues raised in counsel’s Anders brief.4

       On appeal, Appellant raises the following issue for our review.

              Whether the [trial] court imposed an illegal sentence
              at count 2 [75 Pa.C.S. § 1543(b)] in sentencing
              [Appellant] to 60 days’ intermediate punishment, a
              $500.00 fine, and $500.00 in restitution?

Anders Brief at 5.

       “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, we review counsel’s Anders brief for

____________________________________________


4
  Additionally, we note that on December 1, 2014, counsel filed a motion to
withdraw pursuant to Anders. On that same date, counsel sent a copy of
the Anders brief to Appellant along with a letter advising Appellant of his
right to retain new counsel or proceed pro se. Appellant did not file a reply.



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compliance with the requirements set forth by our Supreme Court in

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

                     [W]e hold that in the Anders brief that
              accompanies court-appointed 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.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005) and its progeny, counsel must comply with the following obligations to

his client.

              Counsel also must provide a copy of the Anders
              brief to his client. Attending the brief must be a
              letter that advises the client of his 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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).          “Once counsel has satisfied the

above 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


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whether the appeal is, in fact, wholly frivolous.”       Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

      Instantly, we are satisfied that counsel has complied with the technical

requirements of Anders and Santiago.          First, counsel has provided a

procedural and factual summary of the case with references to the record.

Anders Brief at 6-9.    Second, counsel advances relevant portions of the

record that arguably support Appellant’s claims on appeal.     Id. at 12-14.

Third, counsel concluded Appellant’s appeal is frivolous as “each aspect of

the [trial c]ourt’s sentence is legal and undersigned counsel is unable to

raise any non-frivolous arguments to the contrary.”       Id. at 14. Lastly,

counsel has complied with the requirements set forth in Millisock, supra.

As a result, we proceed with our independent review of the record and the

issues presented on Appellant’s behalf to ascertain if the appeal is wholly

frivolous.

      Instantly, Appellant’s counsel addresses the legality of Appellant’s

sentence noting that “Pennsylvania law makes clear that by entering a guilty

plea, the defendant waives his right to challenge on direct appeal all

nonjurisdictional defects except the legality of the sentence and the validity

of the plea.”   Anders Brief at 11, citing Commonwealth v. Lincoln, 72

A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d

319 (Pa. 2014). As Appellant failed to object to his guilty plea or to file a


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motion to withdraw it, any challenge to the validity of Appellant’s plea is

waived. Id.; see also generally Pa.R.A.P. 302(a). Accordingly, the only

issue Appellant can raise is the legality of his sentence. “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 n.8

(Pa. Super. 2011) (citation omitted). It is also well-established that “[i]f 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[.] … Our standard of review over such questions is de novo and our

scope of review is plenary.” Commonwealth v. Hawkins, 45 A.3d 1123,

1130 (Pa. Super. 2012) (citation omitted), appeal denied, 53 A.3d 756 (Pa.

2012).

      Appellant was sentenced to 60 days’ intermediate punishment of

house arrest, a $500.00 fine, and $500.00 in restitution after pleading guilty

to driving while operating privilege is suspended or revoked, in accordance

with the following statute.

            § 1543. Driving while operating privilege is
            suspended or revoked

                                      …

            (b) Certain offenses.--




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                     (1) A person who drives a motor vehicle on a
                     highway or trafficway of this Commonwealth at
                     a time when the person’s operating privilege is
                     suspended or revoked as a condition of
                     acceptance    of    Accelerated   Rehabilitative
                     Disposition for a violation of section 3802
                     (relating to driving under influence of alcohol
                     or controlled substance) or the former section
                     3731, because of a violation of section
                     1547(b)(1) (relating to suspension for refusal)
                     or 3802 or former section 3731 or is
                     suspended under section 1581 (relating to
                     Driver’s License Compact) for an offense
                     substantially similar to a violation of section
                     3802 or former section 3731 shall, upon
                     conviction, be guilty of a summary offense
                     and shall be sentenced to pay a fine of
                     $500 and to undergo imprisonment for a
                     period of not less than 60 days nor more
                     than 90 days.


75 Pa.C.S.A. § 1543(b)(1) (emphasis added). Accordingly, there is statutory

support for the length of Appellant’s sentence and the fine imposed.5

Further, the trial court did not err in ordering Appellant to pay $500.00 in

restitution to the victim for the damage to her vehicle. N.T., 4/17/14, at 9;

see also 42 Pa.C.S.A. § 9721(c) (stating that the trial court “shall order the

defendant to compensate the victim of his criminal conduct for the damage

or injury that he sustained[]”). However, our inquiry does not end here.

____________________________________________


5
 We note that although this is a mandatory minimum sentence, it is not one
based on judicial fact-finding, but rather is required by the fact of conviction.
Therefore, this statute is not affected by Alleyne v. United States, 133 S.
Ct. 2151 (2013) or Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc).



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      Generally, trial courts are prohibited from converting a sentence of

incarceration to intermediate punishment when a mandatory minimum

sentence is at issue.   42 Pa.C.S.A. § 9721(a.1).    However, a sentence of

intermediate punishment may be imposed in place of imprisonment only if

the appellant has undergone a drug and alcohol assessment pursuant to 75

Pa.C.S.A. § 3814.    See 42 Pa.C.S.A. § 9763(c)(1) (stating “[a]ny person

receiving a penalty imposed pursuant to 75 Pa.C.S. § 1543(b) … may only

be sentenced to county intermediate punishment after undergoing an

assessment under 75 Pa.C.S. § 3814[]”). Instantly, the record is devoid of

any evidence of Appellant being ordered to undergo such an assessment.

Accordingly, the trial court’s sentence of house arrest is an illegal sentence

which must be vacated. See Commonwealth v. Arest, 734 A.2d 910, 913

(Pa. Super. 1999) (en banc) (concluding, under a prior version of Section

9763, that the trial court imposed an illegal sentence of intermediate

punishment house arrest without ordering drug and alcohol treatment);

Rivera, supra.      Upon remand, the trial court shall either correct the

sentence in accordance with Section 1543(b) or order an assessment in

accordance with Section 9763(c)(1), in order to impose a sentence of

intermediate punishment.

      Therefore, for the reasons discussed above, our independent review of

the record leads us to conclude that Appellant’s appeal is not wholly

frivolous.   Accordingly, we deny counsel’s petition to withdraw, vacate


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Appellant’s judgment of sentence, and remand for proceedings, consistent

with this memorandum.

      Judgment of sentence vacated. Case remanded. Petition to withdraw

as counsel denied. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2015




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