J-S09017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    ANGELA MARLENE WINTERS                      :
                                                :
                       Appellant                :   No. 733 WDA 2018

              Appeal from the Judgment of Sentence April 4, 2018
     In the Court of Common Pleas of Crawford County Criminal Division at
                        No(s): CP-20-SA-0000048-2016


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                           FILED SEPTEMBER 27, 2019

        Angela Marlene Winters appeals from the judgment of sentence, entered

in the Court of Common Pleas of Crawford County, following her conviction for

driving while her operating privileges were suspended or revoked (driving

under suspension, DUI related).1               On appeal, Winters challenges the

discretionary aspects of her sentence. After careful review, we affirm.

        This case has a tortuous procedural history, complicated by Winters’ pro

se filings amid circumstances which made it unclear who, if anyone,

represented her. We previously summarized the factual background of this

case as follows:

        On March 10, 2007, Winters was cited for driving under the
        influence (DUI)—highest rate of alcohol. As a result, her license
        was suspended for one year, effective April 21, 2009. Winters
____________________________________________


1   75 Pa.C.S.A. § 1543(b)(1)(i).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09017-19


       became eligible to have her license restored on April 21, 2010, but
       never took the necessary steps to do so.

       On August 23, 2016, the Pennsylvania State Police cited Winters
       for the act underpinning the instant conviction—driving under
       suspension, DUI-related.      In a November 3, 2016 letter to
       Magisterial District Court, Winters contested the citation. Winters
       failed to appear for her December 6, 2016 hearing; consequently,
       Magisterial District Judge Lincoln S. Zilhaver sentenced her to the
       mandatory minimum sentence of 60 days’ incarceration. Winters
       petitioned for leave to appeal in forma pauperis on December 9,
       2016, which the court granted on December 12, 2016. On
       December 13, 2016, Winters filed a notice of appeal from her
       summary criminal conviction.

       Winter’s trial de novo was repeatedly rescheduled until April 4,
       2018,[2] on which date, while represented by Assistant Public
       Defender Gary A. Kern, Esquire, the Honorable Anthony J. Vardaro
       found Winters in violation of section 1543(b) of the Motor Vehicle
       Code and sentenced her to 60 days’ imprisonment, a $500 fine,
       and associated court costs[.]

       On April 25, 2018, Winters filed a pro se motion to modify
       sentence, requesting house arrest in lieu of incarceration owing to
       her physical ailments and the demands of caring for her five-year-
       old son. The court docketed the motion, scheduled a hearing for
       May 1, 2018, and provided notice to the public defender’s office
       of Winters’ pro se filing by email. On April 27, 2018, Winters filed
       a pro se petition under the Post Conviction Relief Act (PCRA), 42
       Pa.C.S.A. §§ 9541-9546, in which she alleged Attorney Kern had
       refused to file an appeal and requested the assistance of new
       counsel. That same day, Judge Vardaro dismissed Winters’ pro se
       motion to modify sentence without a hearing, stating the motion
       had been improperly filed in motions court and again notified the
       public defender’s office of Winters’ pro se legal activity. On April
____________________________________________


2 Previously, this Court interpreted the trial court’s Pa.R.A.P. 1925(a) opinion
as indicating that no transcript of Winters’ sentencing hearing existed. See
Pa.R.A.P. 1925(a) opinion, 6/6/18, at 1 (“This [c]ourt does not have the
transcript of this matter at this time for the Court[.]”). Following remand, the
trial court indicated, in fact, it had produced a record of the hearing, but
Winters failed to comply with Pa.R.A.P. 905(a), which, inter alia, requires
appellants to order transcripts. Pa.R.A.P. 1925(a) opinion, 5/6/19, at 2.

                                           -2-
J-S09017-19


     30, 2018, Judge Vardaro permitted Winters to proceed in forma
     pauperis on the PCRA petition, and appointed Edward J.
     Hatheway, Esquire, as PCRA counsel.           The court, however,
     continued to notify the public defender’s office of Winters’ activity,
     as Attorney Kern had not yet withdrawn as appellate counsel. On
     May 4, 2018, Winters filed a timely pro se notice of appeal from
     her April 4, 2018 judgment of sentence to the Superior Court.

     Though Winters’ notice of appeal should have divested the trial
     court of jurisdiction, on May 14, 2018, Attorney Hatheway, as
     PCRA counsel, filed a Turner/Finley “no merit” letter and a
     motion to withdraw, wherein he stated the following issues, raised
     by Winters in her pro se filing, lacked merit:

           1)    Whether the defendant’s trial attorney was
           ineffective in representing the defendant by failing to
           urge the [c]ourt to sentence the defendant to house
           arrest/electronic home monitoring as opposed to
           incarceration for her conviction of [driving under
           suspension]?

           2)     Whether the defendant’s trial attorney was
           ineffective in representing the defendant by failing to
           file an appeal to the Superior Court raising the issue
           that the trial court had abused its sentencing
           discretion by sentencing the defendant to 60 days of
           incarceration for [driving under suspension]?

     With respect to the first issue, Attorney Hatheway believed
     Attorney Kern made Winters’ desire for house arrest clear to Judge
     Vardaro at sentencing. Attorney Hatheway did not address the
     merits of Winters’ second issue, making no statement as to
     whether Attorney Kern failed to file an appeal. Instead, Attorney
     Hatheway concluded Winters’ sentence was legal, stating “[t]he
     Superior Court is not going to conclude that Judge Vardaro abused
     his sentencing discretion[.]”

     On May 15, 2018, Attorney Kern—who was still named on the
     docket as Winters’ counsel of record—filed a petition to withdraw
     as counsel. The following day, without holding a hearing or
     notifying Winters, the court granted Attorney Kern’s petition to
     withdraw as counsel. On May 18, 2018, Judge Vardaro granted
     Attorney Hatheway’s motion to withdraw as PCRA counsel,
     dismissed Winters’ PCRA petition, and construed Winters’ May 4,

                                     -3-
J-S09017-19


      2018 filing as a timely notice of appeal from her April 4, 2018
      judgment of sentence.

      Though the court found itself without jurisdiction to assess
      Winters’ PCRA claim, it nonetheless offered its opinion on the
      underlying issues. With respect to Attorney Kern’s failure to file
      an appeal, the court stated, “the issue with regard to defense
      counsel being ineffective in failing to file an appeal to the Superior
      Court has been resolved since the defendant filed her own timely
      notice of appeal[.]” With respect to Attorney Kern’s failure to
      pursue house arrest, the court stated, “while we do not have a
      transcript, our recollection is the Defendant’s attorney at the time
      of sentencing argued for [h]ouse [a]rrest . . . and we rejected that
      option.” Winters subsequently proceeded with her pro se direct
      appeal; both Winters and the court complied with Pa.R.A.P. 1925.

      On appeal, Winters challenges the discretionary aspects of her
      sentence, arguing Judge Vardaro abused his discretion in
      sentencing her to 60 days of incarceration rather than 60 days of
      house arrest.

Commonwealth v. Winters, 733 WDA 2018, 2–7 (Pa. Super. filed 4/1/19)

(unpublished memorandum) (citations, quotations, and footnotes omitted).

      We remanded this case to determine whether Winters preserved a claim

challenging the discretionary aspects of her sentence during her April 4, 2018

sentencing hearing. Id. at 10, 12. In the event Winters preserved her claim,

we instructed the court to determine whether Winters desired counsel, and if

so, to appoint counsel to proceed on her behalf. Id. at 12.

      On April 29, 2019, the court held the requested hearing, during which

the assistant district attorney stated Winters’ trial counsel had preserved her

claim at sentencing by arguing in favor of house arrest. See N.T. Hearing,

4/29/19, at 3 (“Attorney Kern argued for house arrest on her behalf.           I

distinctly remember that. So I think there’s no doubt the issue is preserved.”).

                                      -4-
J-S09017-19


The court concurred with the district attorney’s assessment. Id. On May 6,

2019, the court issued an order stating Winters had preserved her claim and

appointing Joseph Ferguson, Esquire to represent her on appeal.          Order,

5/6/19, at 1. Both Winters and the court timely complied with Pa.R.A.P. 1925.

       Winters raised the following claim on appeal:

       Was the sentence imposed by the [c]ourt an abuse of discretion
       because imposing a sentence of total confinement without
       adequately addressing the statutory framework behind the
       defendant’s specific request for a house arrest sentence was
       unreasonable and inconsistent with the fundamental norms
       underlying the sentencing process?

Brief of Appellant, at 5.

       Winters’ claim implicates the discretionary aspects of her sentence.

Such a challenge is not appealable as of right. Rather, an appellant must

petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.3

Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).

____________________________________________


3 Winters, while asserting her ability to challenge the discretionary aspects of
her sentence, candidly notes that 42 Pa.C.S.A. § 9781(b) contemplates
felonies and misdemeanors, not summary offenses. See Brief of Appellant,
at 13; see also 42 Pa.C.S.A. § 9781(b) (that “the defendant . . . may file a
petition for allowance of appeal of the discretionary aspects of a sentence for
a felony or a misdemeanor to the appellate court that has initial jurisdiction
for such appeals.”) (emphasis added).

We, nonetheless, consider Winters’ appeal under the above-mentioned,
framework for evaluating discretionary aspect claims. In Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987), our Supreme Court “examine[d] the
procedure by which [an appellant] obtained review[,]” and found it “significant
that Section 9781(b) specifies that allowance of appeal of the discretionary
aspects of sentence may be granted ‘where it appears that there is a



                                           -5-
J-S09017-19


       Before we reach the merits of this issue, we must engage in a
       four[-]part analysis to determine: (1) whether the appeal is
       timely; (2) whether Appellant preserved his issue; (3) whether
       Appellant’s brief includes a concise statement of the reasons relied
       upon for allowance of appeal with respect to the discretionary
       aspects of sentence; and (4) whether the concise statement raises
       a substantial question that the sentence is appropriate under the
       sentencing code. . . . [I]f the appeal satisfies each of these four
       requirements, we will then proceed to decide the substantive
       merits of the case.

Id. at 1042-43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.

Super. 2013).

       Here, Winters filed a post-sentence motion for reconsideration of her

sentence, followed by a timely notice of appeal. In addition, she has included

____________________________________________


substantial question that the sentence imposed is not appropriate under this
chapter.’ The chapter referred to is, of course, the entire sentencing code.”
Id. at 20 (quoting 42 Pa.C.S.A. § 9781(b)).

This Court has subsequently relied on Tuladziecki in applying the standard
framework for evaluating discretionary aspect of sentence claims to appeals
from summary convictions that implicate the Sentencing Code, including
sentences of incarceration for violations of driving while under suspension
under 75 Pa.C.S.A. § 1543. See Commonwealth v. Kraft, 737 A.2d 755,
757 (Pa. Super. 1999) (citing Tuladziecki, supra at 20) (finding driver
sentenced to 90 days’ incarceration for violating 75 Pa.C.S.A. § 1543 did not
raise a substantial question); see also Commonwealth v. Barzyk, 692 A.2d
211, 216 (Pa. Super. 1997) (citing Tuladziecki, supra at 20) (finding
Tuladziecki binding in context of summary offense where discretionary
aspect claim raised issue under sentencing code).

Winters has raised a claim implicating the court’s discretion under the
Sentencing Code. See Brief of Appellant, at 11–12 (asserting error under 42
Pa.C.S.A. § 9763(c)(1), a subsection of the Sentencing Code). We note the
incongruity inherent in analyzing a summary conviction under a framework
derived from 42 Pa.C.S.A. § 9781; we, however, feel obligated to do so under
the constraints of precedent, the factual circumstances before us, and in the
absence of objection to such analysis by either party. Kraft, supra at 757;
Barzyk, supra at 216.

                                           -6-
J-S09017-19



in her brief a concise statement of reasons relied upon for appeal pursuant to

Pa.R.A.P. 2119(f). Accordingly, we must now determine whether Winters has

raised a substantial question for our review.

       A substantial question requires a showing that “the sentence violates

either a specific provision of the sentencing scheme set forth in the Sentencing

Code or a particular fundamental norm underlying the sentencing process.”

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). We apply the

following standard:

       In determining whether a substantial question exists, this Court
       does not examine the merits of whether a sentence is actually
       excessive.    Rather, we look to whether the appellant has
       forwarded a plausible argument that the sentence, when it is
       within the guideline ranges, is clearly unreasonable.
       Concomitantly, the substantial question determination does not
       require the court to decide the merits of whether the sentence is
       clearly unreasonable.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).

       Winters “contends that she was not given the opportunity to undergo a

drug and alcohol assessment pursuant to 75 Pa.C.S.A. § 3814. The benefit of

having undergone such an assessment would afford the appellant to be

sentenced to home confinement as permitted by 42 Pa.C.S.A. 9763(c)(1).”

Brief of Appellant, at 12. Winters’ Rule 2119(f) statement does not point to

any provision of the Sentencing Code4 which would entitle her to a drug or

alcohol evaluation.       See Brief of Appellant, at 11–14.     Winters’ claim,

____________________________________________


4The provision governing drug and alcohol assessments cited by Winters, 75
Pa.C.S.A. § 3814, is under the Motor Vehicle Code, not the Sentencing Code.

                                           -7-
J-S09017-19



therefore, boils down to a complaint that she was not made eligible for a

discretionary, less restrictive sentence; consequently, she has failed to raise

a substantial question for our review.5 See Mouzon, supra at 627 (requiring

appellant highlight violation of Sentencing Code or fundamental norm).

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2019




____________________________________________


5  We note “[t]he grant or denial of a defendant’s request for [county
intermediate punishment] is largely within the sound discretion of the trial
court.” Commonwealth v. Hoffman, 123 A.3d 1065, 1070 (Pa. Super.
2015). The court’s ability to afford defendants the opportunity to serve their
time under county intermediate punishment is limited by certain restrictions,
including the following: “[a]ny person receiving a penalty imposed pursuant
to 75 Pa.C.S.[A.] § 1543(b) (relating to driving while operating privilege is
suspended or revoked) . . . may only be sentenced to county intermediate
punishment after undergoing an assessment under 75 Pa.C.S. § 3814
(relating to drug and alcohol assessments).” 42 Pa.C.S.A. § 9763(c)(1)
(emphasis added). The plain meaning of this language does not render drug
and alcohol assessments mandatory. See Commonwealth v. Torres-
Kuilan, 156 A.3d 1229, 1231 (Pa. Super. 2017) (“[W]hen ascertaining the
meaning of a statute, if the language is clear, we will give the words their plain
and ordinary meaning.”).

                                           -8-
