J

- S04036

- 20

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

v.

MICHAEL JOSEPH LAWLER

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 M ARCH 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. Ad ditionally, 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 judgm ent of sentence.
On Janu ary 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 determi ne his eligibility for a State Intermediate Punishment (SIP) program. On September 28, 201 8 , the Department determined that Appellant was ineligible for entry into SIP. On January 24 ,J

- S04036

- 20

- 2

-

2019, Appellant appeared for sentencing before the trial court. At se ntencing, 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 incarc eration , with credit for time served

. On March 26, 2019, Appellant, although still represented by counsel, filed an untimely pro se notice of appeal. T hereafter , Counsel filed a motion seeking to reinstate Appellant’s appeal rights nunc pro tunc , which t he 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

w ithdraw 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 Respon se to Anders Brief, 12/17/19, at 2. At the outset, we note t here 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 cri minal defendant has a constitutional right to a direct appeal and to counselJ

- S04036

- 20

- 3

-

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 And ers 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 oth er 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 additio nal 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 com ply 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 ... mu st: (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) st ate 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 36 1 . 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.J

- S04036

- 20

- 4

-

Commonwealth v. Wimbush , 951 A.2d 379, 382 (Pa. Super. 2008) (citatio n 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. Commonwealt h 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 appea l 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
raise d. Counsel’s Anders brief raises four issue s for our review (reordered for ease of discussion) :J

- S04036

- 20

- 5

-

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 base d 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 de n i al 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 courtsJ

- S04036

- 20

- 6

-

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

cou rt’ s discretion in ruling on pre

- sentence motions to withdraw a plea. While reaffirming the “liberal allowance” standard, the Cour t 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 clarify ing 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 t o 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 consider ation 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 li mits, consistent with the affordance of a degree of discretion to the common pleas courts. Id. at 1292. T he Carrasquillo Court established that trial courts possess discretion to assess the plausibility of a defendant’s claim of innocence ; i nJ

- S04036

- 20

- 7

-

doing so, “b oth 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 I slas , 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 ma de 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 follow s:
. . . 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 deny ing 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,’ an d 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 madeJ

- S04036

- 20

- 8

-

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

un knowing, in voluntary, or un intelligent. 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. Buterba ugh , 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 appel lant 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 pu rsuant 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 sent encing process.”J

- S04036

- 20

- 9

-

Commonwealth v. Dodge , 77 A.3d 1263, 1268 (Pa. Su per. 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 o bjection 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 pr oceedings is waived). In his third issue , Appellant asserts that he was wrongfully denied admittance into the State Intermediate Punishment program

. 1 Appellan t 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 pro gram 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 regu lation as a form of State Intermediate P unishment to provide a sentencing alternative for individuals who commit drug

- related offenses. 61 Pa. Code § 97.101.J

- S04036

- 20

- 10

-

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 u ndergone 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 program 3 and that placeme nt 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. 2 33, 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 aro und $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 “D rug offender treatment program” (DOTP ) i s “[a]n individualized treatment program established by the Department consisting primarily of drug and alcohol addiction treatment that satisfies the terms and conditions in sec tion 9905 of the act [at 42 Pa. C.S. A. Chapter 99] (relating to drug offende r treatment program).” 37 Pa. Code § 97.102.J

- S04036

- 20

- 11

-

(4) Provides wr itten 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 defenda nt is ineligible for State Intermediate P unishment 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 applica ble to Appellant

. 61 Pa. C.S. A. § 4103. Placement in State Intermediate P unishment 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 evalu ation 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 th e 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).J

- S04036

- 20

- 12

-

(3) The length of the sentence that would be typically impo sed 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 e ligible offender’ s escape or parole absconder history. (8) The eligibl e 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 s entenc e an individual to State Intermediate P unishment. 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 prov ides 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 beJ

- S04036

- 20

- 13

-

a ppropriate are matt ers 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 doe s not have a right to placement in a DOTP.”). As outlined above, Appellant does not have a statutory right to participation in a n 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 inm ate , regardless of their eligibility and offender status. Accordingly, the Department did not abuse its discretion in denying Appellant admi ssion into an SIP program based on an outstanding warrant from a magisterial district judge. In his fourth and final issue , Appellant challenges the D epartment’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 provi de a report of its assessment to the court, the defendant, the attorney for the CommonwealthJ

- S04036

- 20

- 14

-

and the Sentencing Commission within 60 days of the commitment of the defendant to the Depart ment 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.
A ppellant fails to cite any authority, and our research does not reveal
any authority , to su pport 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 , 8 30 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 Appell ant 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.J

- S04036

- 20

- 15

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/27/2020