Com. v. McCracken, T. (memorandum)

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J-S61018-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. THEODORE AARON MCCRACKEN Appellant No. 3295 EDA 2012 Appeal from the Judgment of Sentence September 26, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-0004322-2011 BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.* MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 25, 2013 Appellant, Theodore Aaron McCracken, appeals from the September 26, 2012 aggregate judgment of sentence of two and one-half to five years imprisonment, to be followed by two years probation, imposed after a jury found him guilty of access device fraud, identity theft, and theft by unlawful taking or disposition.1 Contemporaneously with this appeal, counsel has requested leave to withdraw in accordance with Anders v. California, 386 U.S. 738 (1967), and its progeny. After careful review, we grant counsel s ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 4106, 4120, and 3921, respectively. J-S61018-13 petition to withdraw and affirm the judgment of sentence on the basis of the well-reasoned trial court opinion.2 The lengthy facts of this case were accurately summarized by the trial court in its July 12, 2013 opinion, and we need not reiterate them here. See Trial Court Opinion, 7/12/13, at 1-5. The procedural history of this case was summarized by the trial court as follows. The Commonwealth ultimately charged [Appellant] with the following on Bill of Information 4322-2011: Count One - Access Device Fraud/Unauthorized Use, Counts Two and Three Identity Theft, and Count Four - Theft By Unlawful Taking or Disposition. After hearing and argument on [Appellant] s Motion to Suppress, the [trial court] denied [Appellant] s Motion and issued Findings of Fact and Conclusions of law from the bench. Before trial, [Appellant] decided to proceed pro se. As a result, the [trial c]ourt conducted the required Grazier hearing and appointed Public Defender, Seth Grant, Esquire, as stand-by counsel. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). At the conclusion of [Appellant] s three-day jury trial, the Commonwealth withdrew Count Three - Identity Theft, and the jury found [Appellant] guilty on the remaining three Counts: Access Device Fraud/Unauthorized Use, Identity Theft, and Theft By Unlawful Taking or Disposition. The [trial c]ourt ordered a Pre-Sentence Investigation (PSI) and after a thorough review of that report, the [trial c]ourt conducted a sentencing hearing on September 26, 2012.12 ____________________________________________ 2 On August 30, 2013, the Commonwealth filed a letter indicating that it believes that Appellant s claims are devoid of merit and that it will not be filing a formal appellate brief in this matter. -2- J-S61018-13 The Court ultimately sentenced [Appellant] to the following: Count One imprisonment for not less than two and a half nor more than five years; and, Count Two imprisonment for not less than two and a half nor more than five years, concurrent with Count One, with probation to run consecutive to the prison term.13[,] 14 12 In advance of sentencing, Commonwealth informed the [trial] court that, based on the jury s findings on the verdict sheet with regard to the specific amount of money taken by [Appellant], Counts III and IV required downgrading amendments be made to the previously submitted guidelines. 13 Based on the jury s finding as memorialized by its verdict, the Commonwealth agreed to downgrade Count Two from an F-2 to and F-3, and Count Four from an F-3 to an M-1, respectively. 14 The [trial c]ourt informed [Appellant] of his appellate rights. Id. at 5-6 (citations to notes of testimony and some footnotes omitted). On October 3, 2012, Appellant filed a timely pro se post-sentence motion. See Pa.R.Crim.P. 720(A)(1) (stating, [e]xcept as provided in paragraphs (C) and (D), a written post-sentence motion shall be filed no later than 10 days after imposition of sentence[] ). Thereafter, on October 9 and 16, 2012, Appellant filed pro se motions to amend his post-sentence motion. The trial court denied Appellant s post-sentence motion and motions to amend post-sentence motion on October 16, 2012. On October 18, 2012, Appellant filed yet another pro se post-sentence motion purporting to correct typographical errors in his prior, 37-page filing. On November 14, -3- J-S61018-13 2012, the trial court again denied Appellant s post-sentence motion. On December 3, 2012, Appellant filed both a pro se notice of appeal, and a request that counsel be appointed. In accordance with Appellant s request, on December 10, 2012, the trial court appointed counsel from the Montgomery County Public Defender s Office to represent Appellant. By order entered January 17, 2013, this Court directed Appellant to show cause why his appeal should not be quashed as untimely. Counsel filed a timely response on Appellant s behalf on January 28, 2013, and this matter was deferred until appellate review.3 Thereafter, on August 20, 2013, Appellant s counsel filed a motion and brief to withdraw from representation in accordance with Anders, supra and its progeny. On October 7, 2013, Appellant responded to counsel s motion by filing a pro se motion for change of appointed counsel. In said motion, Appellant argues there is an irreconcilable personality conflict between [counsel] and [A]ppellant which has caused [counsel] to be disloyal to [A]pellant s cause and ¦ file[] an Anders brief in retaliation ¦. Motion for Change of Appointed Counsel, 10/7/13, at ¶ 6. Appellant further avers he should be appointed a new attorney given that counsel is purportedly of []Jewish descent[]. Id. at ¶¶ 8-9. On October 24, 2013, Appellant filed an amended motion for change of appointed counsel, reiterating similar claims. ____________________________________________ 3 We note that both Appellant and the trial court have complied with Pa.R.A.P. 1925. -4- J-S61018-13 In his Anders brief, counsel raises the following issues on Appellant s behalf. [1.] Did the Court of Common Pleas of Montgomery County enjoy subject matter jurisdiction to adjudicate the prosecution of the offense against Appellant that originated in the Republic of Camaroon? [2.] Did the trial court abuse its discretion when it denied Appellant s motion to suppress statements that he had provided to police? [3.] Are Appellant s convictions for access device fraud, identity theft, and theft supported by legally sufficient evidence of record? [4.] Did the trial court abuse its discretion when it denied Appellant s motion for a new trial on the basis that the guilty verdicts were against the weight of the evidence? [5.] Was Appellant denied his right to a fair trial as a result of prosecutorial misconduct and the refusal of the trial court to provide the jury with the requested jury instructions? Anders Brief at 5. Prior to addressing both counsel s request to withdraw and the merits of Appellant s arguments, we must first determine whether this Court has proper jurisdiction to hear this appeal. Pursuant to Pennsylvania Rule of Appellate Procedure 903, the notice of appeal required by Rule 902 ¦ shall be filed within 30 days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903(a). Generally, where a timely post-sentence motion -5- J-S61018-13 has been filed, as is the case here, an appeal may be filed within 30 days of the order denying said post-sentence motion. Pa.R.Crim.P. 720(A). Additionally, this Court can raise jurisdictional issues sua sponte. ¦ This Court may not enlarge the time for filing a notice of appeal.... Pa.R.A.P. 105(b). Absent a breakdown in the operations of the court, [t]ime limitations on the taking of appeals are strictly construed and cannot be extended as a matter of grace. Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007) (some citations and internal quotation marks omitted; emphasis added). Instantly, Appellant was sentenced on September 26, 2012, and his timely post-sentence motion was denied by the trial court on October 16, 2012. Thus, Appellant s pro se notice of appeal, deposited in prison mail on November 30, 2012, and docketed with the Clerk of Courts on December 3, 2012, is patently untimely.4 However, the trial court acknowledged that it inadvertently omitted certain caveats, required by Pa.R.Crim.P. 720(B)(4),[5] in its October 16, 2012 order, and thus, deemed Appellant s ____________________________________________ 4 We note that Appellant s appeal is untimely, even with the application of the prisoner s mailbox rule. See Commonwealth v. Feliciano, 69 A.3d 1270, 1274 (Pa. Super. 2013) (stating, pursuant to the prisoner mailbox rule, direct appeals filed by pro se appellants are deemed filed on the date that the prisoner deposits the appeal with prison authorities or places it in a prison mailbox[] ) (citation and internal quotation marks omitted). 5 Rule 720(B)(4) provides, in relevant part, that, [a]n order denying a postsentence motion, whether issued by the judge ... or entered by the clerk of courts ..., shall include notice to the defendant of[,] inter alia, the right to appeal and the time limits in which the appeal must be filed. Pa.R.Crim.P. (Footnote Continued Next Page) -6- J-S61018-13 appeal timely filed. See Trial Court Opinion, 7/12/13, at 6, n.15; Trial Court Order, 10/16/12. In light of this administrative breakdown in the court system, we agree. See Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa. Super. 2002) (holding that this Court may reach the merits of an untimely appeal in instances where untimeliness is caused by a breakdown in the court process), appeal denied, 818 A.2d 503 (Pa. 2003); Commonwealth v. Patterson, 940 A.2d 493, 498-499 (Pa. Super. 2007) (stating that, the trial court s failure to comply with Rule 720[(B)(4)] constitutes a breakdown that excuses the untimely filing of Appellant s notice of appeal[] ) (citations omitted), appeal denied, 960 A.2d 838 (Pa. 2008). Accordingly, we now turn to counsel s request to withdraw. 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. Titus, 816 A.2d 251, 254 (Pa. Super. 2003) (citation omitted). For cases where the briefing notice was issued after August 25, 2009, as is the case here, an Anders brief shall comply with the requirements set forth by our Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). (Footnote Continued) _______________________ 720(B)(4)(a) (emphasis added). This requirement ensures adequate notice to the ... [appellant], which is important given the potential time lapse between the notice provided at sentencing and the resolution of the postsentence motion. Id., Comment. -7- J-S61018-13 [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. Additionally, counsel must furnish the appellant with a copy of the brief, advise him in writing of his right to retain new counsel or proceed pro se, and attach to the Anders petition a copy of the letter sent to appellant as required under Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (holding that, [w]hile the Supreme Court in Santiago set forth the new requirements for an Anders brief, ¦ the holding did not abrogate the notice requirements set forth in Millisock that remain binding legal precedent ) (footnote omitted). After counsel has satisfied these requirements, we must conduct our own review of the trial court proceedings and independently determine whether the appeal is wholly frivolous. Titus, supra at 254 (citation omitted). In the instant matter, we conclude that counsel s extensive Anders brief complies with the requirements of Santiago, supra. First, counsel has provided a procedural and factual summary of the case with references to -8- J-S61018-13 the record. Second, counsel advances relevant portions of the record that arguably support Appellant s five distinct claims on appeal. Third, counsel states his conclusion that there are no other issues of arguable merit that [he] could raise on [Appellant s] behalf[,] and that the appeal is frivolous. See Anders Brief at 66-67. Lastly, counsel has complied with the requirements set forth in Millisock, supra. As a result, we proceed to conduct an independent review to ascertain if the appeal is indeed wholly frivolous. Instantly, counsel raises five distinct claims of trial court error on Appellant s behalf. See Anders Brief at 12-67. The trial court, in turn, has authored a comprehensive, 31-page opinion that sets forth its reasoning for rejecting each of the aforementioned claims. Specifically, the trial court first found that, contrary to Appellant s contentions that jurisdiction in this case properly lies in the Republic of Cameroon, Africa, [it] had jurisdiction to adjudicate [Appellant s] charges. Trial Court Opinion, 7/12/13, at 10-11. The trial court next concluded that Appellant s motion to suppress various incriminating statements he made to police was properly denied, as Appellant essentially acknowledged during the suppression hearing that he made the unsolicited statements at issue, and [t]he record aptly supports the [trial court s] factual findings and credibility determinations ¦. 13-15, citing N.T., 5/21/12, 38-40, 48-52, 55-56. Id. at Additionally, the trial court concluded that, based on the credible testimony of both the victim, -9- J-S61018-13 Eunice Jean McCracken, and Detective Raymond T. Royds, Jr., the Commonwealth produced sufficient evidence to support Appellant s convictions, and the jury s verdict does not, in any way, shock one s sense of justice. Id. at 15-21, 23-25. Lastly, the trial court concluded that Appellant s contentions he was denied a fair trial because of prosecutorial misconduct and adverse evidentiary rulings that prevented him from introducing evidence to support his affirmative defenses are entirely devoid of merit. See id. at 25-29. We have reviewed the record in its entirety and have considered the merit of Appellant s claims. Upon careful review of the certified record, including the applicable law, counsel s Anders brief, and Appellant s response thereto, and in light of this Court s scope and standard of review, we conclude that the trial court s conclusions were entirely proper. The wellreasoned opinion of the trial court provides a detailed analysis of the wellsettled law of this Commonwealth as related to the facts of this case. The trial court then wholly refutes each of Appellant s arguments. Based on the forgoing, we adopt the trial court s July 12, 2013 opinion as our own for purposes of this appellate review, and consequently, agree with counsel that Appellant s appeal is wholly frivolous. - 10 - Titus, supra at J-S61018-13 254. Accordingly, we grant counsel s petition to withdraw and affirm the trial court s September 26, 2012 judgment of sentence.6 Judgment of sentence affirmed. Petition to withdraw granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/25/2013 ____________________________________________ 6 In light of our disposition, we deny Appellant s October 7, 2013 pro se motion for change of appointed counsel, and his October 24, 2013 pro se amended motion for change of appointed counsel. - 11 -

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