J-S26020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DANIEL C. STONEROAD

                            Appellant                  No. 1607 MDA 2014


          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.:                                  FILED MAY 12, 2015

       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
____________________________________________


1
       75 Pa.C.S.A. § 1543(b)(1).
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     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’


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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
____________________________________________


2
      See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009); see also
Pa.R.A.P. 1925(a)(4).




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      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 found



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no 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


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“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, pursuant to Apprendi, supra, “since the

penalties are higher where an individual is convicted of driving during a DUI-

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related suspension than during a non-DUI related suspension the existence

of a predicate DUI must be found by a jury beyond a reasonable doubt.”

Anders Brief at 10. However, by its own language, Apprendi excludes “the

fact of a prior conviction” from findings which require jury deliberation.

Apprendi, 530 U.S. at 490; see also Commonwealth v. Watley, 81 A.3d

108, 117 (Pa. Super. 2013).       Thus, the fact of Stoneroad’s prior DUI

conviction did not need to be found by a jury for the trial court to increase

Stoneroad’s sentence for conviction of DUI-related driving under suspension,

75 Pa.C.S.A. § 1543(b)(1). Stoneroad’s first issue is frivolous and would not

merit relief.

      Second, Stoneroad contends that the Commonwealth failed to present

sufficient evidence to support a conviction of driving under suspension

because the “suspension related to his initial conviction for driving under the

influence of alcohol had concluded.” Anders Brief at 10. We disagree.

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.   In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and


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      all evidence actually received must be considered. Finally, the
      [finder] of fact while passing upon the credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014) (citations

omitted; bracketed material in original). Further, “[w]hen reviewing a

sufficiency claim the court is required to view the evidence in the light most

favorable to the verdict winner giving the prosecution the benefit of all

reasonable inferences to be drawn from the evidence.” Commonwealth v.

Widmer, 744 A.2d 745, 751 (Pa. 2000).

      Stoneroad was convicted of driving while his operating privileges were

suspended or revoked, which is defined as follows:

      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).

      Stoneroad contends that his driver’s license was suspended for one

year because of a DUI, beginning on August 1, 2008, and that the

suspension had expired long before his instant conviction.       However, at


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Stoneroad’s summary appeal hearing, the Commonwealth entered, via

Stoneroad’s driving record, the status of Stoneroad’s license as of the date

of the incident. The record shows that, on April 8, 2013, Stoneroad’s license

was still suspended due to repeated violations of driving under suspension.

See Notes of Testimony, 8/25/2014, at 6.              Thus, although the original

suspension term of one year had expired, Stoneroad’s intervening violations

had extended that period of suspension.         Accordingly, the admission of

Stoneroad’s certified driving record demonstrating that his license was

suspended at the time of the incident was sufficient evidence to support his

conviction under 75 Pa.C.S.A. § 1543(b)(1). See Phillips, 93 A.3d at 856.

This issue is frivolous and would not merit relief.

      Third, Stoneroad asserts that 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 12.    We

disagree.

      “Appellate review of constitutional challenges to statutes, disputes

over the legality of a sentence, a court’s application of a statute, and general

questions of law involve a plenary scope of review. As with all questions of

law, the appellate standard of review is de novo[.]”         Commonwealth v.

Shawver, 18 A.3d 1190, 1194 (Pa. Super. 2011).

      Here, Stoneroad asserts that 75 Pa.C.S.A. § 1543 is unconstitutional

because suspending his driver’s license is a violation of his right to interstate

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movement.      However, “the Privileges and Immunities Clause of Article IV

prevents a state government from discriminating against a transient

defendant by denying him the protections of its law or the right of access to

its courts.”    Burnham v. Superior Court of Cal., 495 U.S. 604, 638

(1990).    It does not contemplate a right to drive from state to state, as

Stoneroad would have us find. Instead, it is long-settled that “driving is a

privilege, not a fundamental right.” Commonwealth v. Jenner, 681 A.2d

1266, 1273 (Pa. 1996).

        The permission to operate a motor vehicle upon the highways of
        the Commonwealth is not embraced within the term civil rights,
        nor is a license to do so a contract or a right of property in any
        legal or constitutional sense. Although the privilege may be a
        valuable one, it is no more than a permit granted by the state,
        its enjoyment depending upon compliance with the conditions
        prescribed by it, and subject always to such regulation and
        control as the state may see fit to impose.

Commonwealth v. Funk, 186 A. 65, 67-68 (Pa. 1936).               Therefore, the

“right to interstate movement” under the Privileges and Immunities Clause is

not implicated by 75 Pa.C.S.A. § 1543.         See Shawver, 18 A.3d at 1194.

Stoneroad’s constitutional challenge is frivolous and does not merit relief.

        We have reviewed the trial court’s disposition of Stoneroad’s issues

and conclude that the trial court did not abuse its discretion where the issues

he raised are frivolous and without merit. Furthermore, upon independent

review, we find no other non-frivolous basis for appeal.         Therefore, we

conclude that Stoneroad’s appeal is wholly frivolous. O’Malley, 957 A.2d at

1266.

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     Judgment of sentence affirmed.     Petition for leave to withdraw as

counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




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