J-S04036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MICHAEL JOSEPH LAWLER                   :
                                         :
                    Appellant            :   No. 1700 EDA 2019

     Appeal from the Judgment of Sentence Entered January 24, 2019
    In the Court of Common Pleas of Wayne County Criminal Division at
                      No(s): CP-64-CR-0000220-2017


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

MEMORANDUM BY MURRAY, J.:                          FILED MARCH 27, 2020

      Michael Joseph Lawler (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to three counts of criminal trespass, 18

Pa.C.S.A. § 3503.     Additionally, Appellant’s counsel (Counsel), seeks to

withdraw from representation pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).   Upon review, we grant Counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

      On January 11, 2018, Appellant entered an open guilty plea to three

counts of criminal trespass.    On February 21, 2018, upon motion by the

Commonwealth, the Department of Corrections (the Department) took

Appellant into custody to determine his eligibility for a State Intermediate

Punishment (SIP) program.       On September 28, 2018, the Department

determined that Appellant was ineligible for entry into SIP. On January 24,
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2019, Appellant appeared for sentencing before the trial court. At sentencing,

Appellant orally requested to withdraw his guilty plea based on the

Department’s determination that he was ineligible for participation in an SIP

program. The trial court denied Appellant’s request and sentenced him to 78

to 188 months of incarceration, with credit for time served.

      On March 26, 2019, Appellant, although still represented by counsel,

filed an untimely pro se notice of appeal. Thereafter, Counsel filed a motion

seeking to reinstate Appellant’s appeal rights nunc pro tunc, which the trial

court granted on June 3, 2019. On June 11, 2019, Counsel filed a timely

notice of appeal. On December 4, 2019, this Court dismissed Appellant’s pro

se   appeal   as   duplicative   of   Appellant’s   counselled   appeal.    See

Commonwealth v. Lawler, 1130 EDA 2019. Both Appellant and the trial

court complied with Pennsylvania Rule of Appellate Procedure 1925.

      On December 5, 2019, Counsel filed an Anders brief, in which he argues

that Appellant’s appeal is frivolous and requests permission from this Court to

withdraw as counsel. Appellant filed a pro se response to Counsel’s Anders

brief, seeking the appointment of new counsel or ordering Counsel’s continued

representation on appeal; Appellant did not raise any additional claims. See

Appellant’s Pro Se Response to Anders Brief, 12/17/19, at 2.

      At the outset, we note there are particular mandates that counsel

seeking to withdraw pursuant to Anders must follow. These mandates and

the significant protection they provide to an Anders appellant arise because

a criminal defendant has a constitutional right to a direct appeal and to counsel

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on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.

2007). We have summarized the requirements as follows:

         Direct appeal counsel seeking to withdraw under Anders must file
         a petition averring that, after a conscientious examination of the
         record, counsel finds the appeal to be wholly frivolous. Counsel
         must also file an Anders brief setting forth issues that might
         arguably support the appeal along with any other issues necessary
         for the effective appellate presentation thereof.

         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).

Id. (citations omitted).

         Additionally, there are requirements as to the content of an Anders

brief:

         [T]he Anders brief that accompanies court-appointed counsel’s
         petition to withdraw … 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.

Santiago, 978 A.2d at 361. When faced with a purported Anders brief, we

may not review the merits of the underlying issues without first deciding

whether      counsel    has   properly    requested    permission    to   withdraw.


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Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation

omitted).   If counsel has satisfied the above requirements, it is then this

Court’s duty to conduct review of the trial court proceedings to determine

whether there are any other non-frivolous issues that the appellant could raise

on appeal. Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.

2018) (en banc).

      Instantly, we conclude that Counsel has complied with the requirements

outlined above.    Counsel filed a petition with this Court stating that after

reviewing the record, he finds this appeal to be wholly frivolous. Motion for

Leave to Withdraw as Counsel, 12/5/19, at ¶ 3.           In conformance with

Santiago, Counsel’s brief includes summaries of the facts and procedural

history of the case, and discusses the issues he believes might arguably

support Appellant’s appeal. See Anders Brief at 6-8, 11-16. Counsel’s brief

sets forth his conclusion that the appeal is frivolous and includes citation to

relevant authority.    Id.   Finally, Counsel has attached to his petition to

withdraw the letter that he sent to Appellant, which enclosed Counsel’s

petition and Anders brief. Motion for Leave to Withdraw as Counsel, 12/5/19,

Ex. A. Counsel’s letter advised Appellant of his right to proceed pro se or with

private counsel and to raise any additional issues that he deems worthy of this

Court’s consideration. Id. We thus proceed to review the merits of the claims

raised.

      Counsel’s Anders brief raises four issues for our review (reordered for

ease of discussion):

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     1. Did the trial court err in denying Appellant’s Motion to Withdraw
        Guilty Plea?

     2. Did the trial court err in ordering an excessive sentence, given
        the background of the Appellant in this matter?

     3. Did the trial court err in failing to find the Department of
        Corrections wrongfully denied the Appellant’s entry into the
        State Intermediate Punishment Program?

     4. Did the trial court err in failing to dismiss the case based upon
        the Department of Corrections’ determination of entry into the
        State Intermediate Punishment Program not being completed
        within prescribed time limits?

Anders Brief at 5 (suggested answers omitted).

     In his first issue, Appellant challenges the trial court’s denial of his pre-

sentence motion to withdraw guilty plea. We review a trial court’s ruling on a

pre-sentence motion to withdraw a guilty plea for an abuse of discretion.

Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017).

     Pre-sentence withdrawal of a guilty plea is governed by Pennsylvania

Rule of Criminal Procedure 591(A), which states:

     (A) At any time before the imposition of sentence, the court may,
     in its discretion, permit, upon motion of the defendant, or direct,
     sua sponte, the withdrawal of a plea of guilty or nolo contendere
     and the substitution of a plea of not guilty.

Pa.R.Crim.P. 591(A). The official comment to Rule 591 provides that “[a]fter

the attorney for the Commonwealth has had an opportunity to respond, a

request to withdraw a plea made before sentencing should be liberally

allowed.” Id., Cmt.

     [I]n determining whether to grant a pre-sentence motion for
     withdrawal of a guilty plea, the test to be applied by the trial courts

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      is fairness and justice. If the trial court finds “any fair and just
      reason,” withdrawal of the plea before sentence should be freely
      permitted, unless the prosecution has been “substantially
      prejudiced.”

Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (citations

omitted).

      In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our

Supreme Court provided additional guidance as to the proper exercise of a

court’s discretion in ruling on pre-sentence motions to withdraw a plea. While

reaffirming the “liberal allowance” standard, the Court acknowledged that its

previous application of that standard had “lent the [false] impression that

[the] Court had required acceptance of a bare assertion of innocence as a fair-

and-just-reason” for withdrawal and led to a “legitimate perception of a per

se rule” arising from the Court’s prior decisions. Id. at 1292. In clarifying

the standard, the Carrasquillo Court held that “a bare assertion of innocence

is not, in and of itself, a sufficient reason to require a court to grant” a pre-

sentence motion to withdraw. Id. at 1285. Rather, the Court concluded:

      [A] defendant’s innocence claim must be at least plausible to
      demonstrate, in and of itself, a fair and just reason for
      presentence withdrawal of a plea. More broadly, the proper
      inquiry on consideration of such a withdrawal motion is whether
      the accused has made some colorable demonstration, under the
      circumstances, such that permitting withdrawal of the plea would
      promote fairness and justice. The policy of liberality remains
      extant but has its limits, consistent with the affordance of a degree
      of discretion to the common pleas courts.

Id. at 1292. The Carrasquillo Court established that trial courts possess

discretion to assess the plausibility of a defendant’s claim of innocence; in



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doing so, “both the timing and the nature of the innocence claim, along with

the relationship of that claim to the strength of the government’s evidence,

are relevant.” See Islas, 156 A.3d at 1191.

      Consistent with the well-established standards governing trial
      court discretion, it is important that appellate courts honor trial
      courts’ discretion in these matters, as trial courts are in the unique
      position to assess the credibility of claims of innocence and
      measure, under the circumstances, whether defendants have
      made sincere and colorable claims that permitting withdrawal of
      their pleas would promote fairness and justice.

Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019).

      Instantly, Appellant expressed his desire to withdraw his plea as follows:

      . . . I wish to withdraw my plea because I’m looking for the chance
      to help myself, not, I don’t even know how to say it. I want to do
      better in life, Your Honor. I don’t want to sit here for the next ten
      years of my life incarcerated and get out and be a violent felon
      and I have learned absolutely nothing because they don’t offer the
      type of programs that you need to rehabilitate yourself. The
      [State Intermediate Punishment (SIP)] was the only chance that
      I had for rehabilitation purposes and that’s why I took the plea
      that I did was for the S.I.P. Program so I could better myself and
      perhaps be an asset to the community instead of being a liability
      and it just didn’t work out that way, Your Honor.

N.T., 1/24/19, at 5.

      In denying Appellant’s request, the trial court specifically found that

Appellant did not offer a fair and just reason for withdrawal of his plea. Rather,

the trial court noted that Appellant “stated on the record that his reasons for

wishing to withdraw his guilty plea were to ‘do better in life,’ and that the state

correctional institutions ‘do not offer programs to rehabilitate,’ and that he

‘took the plea for SIP.’” Trial Court Opinion, 7/17/19, at 5. Appellant made



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no assertion of innocence and did not contend that his guilty plea was

unknowing, involuntary, or unintelligent. Thus, the trial court denied relief.

      Based upon our review of the certified record, we agree with the trial

court’s determination that Appellant’s reasons for wanting to withdraw his

guilty plea did not satisfy the standard articulated in Carrasquillo.

Appellant’s desire to withdraw his guilty plea because he was denied

admittance into an SIP program does not constitute a fair and just reason for

withdrawal. Accordingly, the trial court did not abuse its discretion.

      In his second issue, Appellant challenges the discretionary aspects of

his sentence. “The right to appellate review of the discretionary aspects of a

sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.

2014).   “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence.” Id.

We conduct this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”


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Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

       Our review reveals that Appellant failed to raise his discretionary

sentencing issue in a post-sentence motion or at sentencing. Accordingly,

Appellant’s objection to the discretionary aspects of his sentence is waived.

Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011) (failure to

raise discretionary aspects of sentence claim in post-sentence motion or by

presenting the claim during sentencing proceedings is waived).

       In his third issue, Appellant asserts that he was wrongfully denied

admittance into the State Intermediate Punishment program.1 Appellant was

denied Appellant admittance into the SIP program due to an outstanding

warrant from a magisterial district judge; however, Appellant avers that his

guilty plea made him an eligible offender, see 61 Pa.C.S.A. § 4103, and thus

the Department erred in denying his participation.

       The SIP Drug Offender Treatment Program (DOTP) is a two-year

program designed to rehabilitate inmates convicted of drug-related offenses,

____________________________________________


1  “State intermediate punishment” is a statutorily authorized sentencing
alternative. 42 Pa.C.S.A. § 9721(a)(7). The General Assembly has directed
the Department to “establish and administer a drug offender treatment
program as a State intermediate punishment.” 61 Pa.C.S.A. § 4105(a). The
Department established its Drug Offender Treatment Program (DOTP) by
regulation as a form of State Intermediate Punishment to provide a sentencing
alternative for individuals who commit drug-related offenses. 61 Pa. Code §
97.101.




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who have an addiction to drugs or alcohol. 61 Pa.C.S.A. §§ 4102-4108. The

program addresses “the individually assessed drug and alcohol abuse and

addiction needs of a participant” and “other issues essential to the

participant’s successful reintegration into the community.”     61 Pa.C.S.A. §

4105(a). An individual is eligible for State Intermediate Punishment if he or

she has been convicted of a drug-related offense,2 and:

       (1) Has undergone an assessment performed by the Department
       of Corrections, which assessment has concluded that the
       defendant is in need of drug and alcohol addiction treatment and
       would benefit from commitment to a drug offender treatment
       program3 and that placement in a drug offender treatment
       program would be appropriate.

       (2) Does not demonstrate a history of present or past violent
       behavior.

       (3) Would be placed in the custody of the department if not
       sentenced to State intermediate punishment.
____________________________________________


2 A “drug-related offense” is “[a] criminal offense for which a defendant is
convicted and that the court determines was motivated by the defendant’s
consumption of or addiction to alcohol or a controlled substance, counterfeit,
designer drug, drug, immediate precursor or marijuana, as those terms are
defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act.” 61 Pa.C.S.A. § 4103. Here,
Appellant broke into cabins across northern Wayne County and stole $35,000
in goods. Appellant testified that he sold the goods and “purchased around
$500 for food, and the remaining amount went towards buying
Methamphetamine and Heroin.”           N.T., 1/24/19, at 8.     The trial court
determined that “the addiction is what drives [Appellant] to commit crimes.”
Id.

3 “Drug offender treatment program” (DOTP) is “[a]n individualized treatment
program established by the Department consisting primarily of drug and
alcohol addiction treatment that satisfies the terms and conditions in section
9905 of the act [at 42 Pa.C.S.A. Chapter 99] (relating to drug offender
treatment program).” 37 Pa. Code § 97.102.

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       (4) Provides written consent permitting release of information
       pertaining to the defendant's participation in a drug offender
       treatment program.

61 Pa.C.S.A. § 4103 (emphasis added). A defendant is ineligible for State

Intermediate Punishment if he or she is subject to a sentence which includes

an enhancement for use of a deadly weapon; has been convicted or

adjudicated delinquent of a crime requiring registration as a sexual offender;

or has a current or prior conviction for specified offenses, none of which are

applicable to Appellant. 61 Pa.C.S.A. § 4103.

       Placement in State Intermediate Punishment requires several steps.

First, the sentencing court must determine whether an individual qualifies for

placement. If so, the sentencing court refers the matter for an evaluation by

the Department. 61 Pa.C.S.A. § 4104(a)(1). Second, “[t]he Department will

conduct a risk assessment and assess the addiction and other treatment needs

of” the individual.      37 Pa. Code § 97.104(a).     The Department, in its

evaluation, considers the following criteria:

       (1) Information furnished to the Department by the sentencing
       court.4

       (2) The results of the assessment of addiction and other treatment
       needs conducted by the Department.



____________________________________________


4  The sentencing court provides the Department with a summary of the
criminal defendant’s offense; information relating to the criminal defendant’s
history of criminality and drug or alcohol abuse or addiction; the presentence
investigation report; and any other information the sentencing court believes
is relevant. 61 Pa.C.S.A. § 4104(a)(2).

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     (3) The length of the sentence that would be typically imposed
     under the standard range of the sentencing guidelines
     promulgated by the Pennsylvania Commission on Sentencing.

     (4) The eligible offender’s motivation to participate meaningfully
     in a DOTP.

     (5) Whether the eligible offender has provided to the Department
     written consent permitting the release of information pertaining
     to the eligible offender's participation in a DOTP.

     (6) The eligible offender’s criminal history.

     (7) The eligible offender’s escape or parole absconder history.

     (8) The eligible offender’s institutional adjustment during current
     and prior incarcerations.

     (9) The availability of the Department’s programming resources.

37 Pa. Code § 97.106(a). Where the Department, “in its discretion,” believes

the criminal defendant’s placement in these programs is appropriate, it

prepares a drug treatment program plan for the individual and provides it to

the sentencing court. 61 Pa.C.S.A. § 4104(c); 37 Pa. Code § 97.104(b). Upon

receipt of a drug treatment program plan, the court may sentence an

individual to State Intermediate Punishment. 61 Pa.C.S.A. § 4104(d). Where

the Department determines that the criminal defendant will not benefit from

a drug treatment program or that placement in a drug treatment program is

not appropriate, it provides a report setting forth the reasons for its

determination to the sentencing court. 37 Pa. Code § 97.104(b).

     Whether an individual would benefit from a drug offender treatment

program and whether his or her placement in a drug treatment plan would be




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appropriate are matters committed to the Department’s discretion. Section

4104(c) of the Prisons and Parole Code states:

      If the department in its discretion believes a defendant would
      benefit from a drug offender treatment program and placement in
      the drug offender treatment program is appropriate, the
      department shall provide the court, the defendant, the attorney
      for the Commonwealth and the commission with a proposed drug
      offender treatment program detailing the type of treatment
      proposed.

61 Pa.C.S.A. § 4104(c) (emphasis added).       Likewise, the statute does not

“[c]onfer any legal right upon any individual ... to ... participate in a drug

offender treatment program[.]” 61 Pa.C.S.A. § 4108(1)(i); see also 37 Pa.

Code § 97.106(b) (“An eligible offender does not have a right to placement in

a DOTP.”).

      As outlined above, Appellant does not have a statutory right to

participation in an SIP program. See 61 Pa.C.S.A. § 4108(1)(i); 37 Pa. Code

§ 97.106(b). The Department possesses the discretion to admit an inmate,

regardless of their eligibility and offender status. Accordingly, the Department

did not abuse its discretion in denying Appellant admission into an SIP

program based on an outstanding warrant from a magisterial district judge.

      In his fourth and final issue, Appellant challenges the Department’s

failure to provide the trial court with its assessment report within 60 days of

Appellant’s commitment to the Department, as prescribed by statute. See 37

Pa. Code § 97.104 (b) (“The Department will provide a report of its

assessment to the court, the defendant, the attorney for the Commonwealth



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and the Sentencing Commission within 60 days of the commitment of the

defendant to the Department for purposes of evaluation.”).           “Appellant

believes that his case should have been dismissed due to the failure of [the

Department] to render a report within 60 days of his commitment to the state

system.” Anders Brief at 15.

      Appellant fails to cite any authority, and our research does not reveal

any authority, to support a dismissal of charges when the Department fails to

provide a report of its assessment within the statutorily defined 60 days.

While we do not condone the delay, Chapter 97 does not provide for a remedy.

See Benson ex rel. Patterson v. Patterson, 830 A.2d 966, 968 (Pa. 2003)

(“[I]t is not the role of the judiciary to legislate changes the legislature has

declined to adopt.”). Appellant’s fourth issue is without merit.

      Finally, our independent review reveals no other non-frivolous issues

that Appellant could raise on appeal. See Dempster, 187 A.3d at 272. We

therefore grant Counsel’s petition to withdraw and affirm Appellant’s judgment

of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




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