Opinion
J. S45017/16 No. 1464 WDA 2015
10-06-2016
COMMONWEALTH OF PENNSYLVANIA v. NICHOLAS ALAN MYERS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 1, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000810-2015 BEFORE: OLSON, DUBOW AND PLATT, JJ. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge Assigned to the Superior Court.
Appellant, Nicholas Alan Myers, appeals from the trial court's Judgment of Sentence entered on September 1, 2015, in the Court of Common Pleas of Cambria County following Appellant's conviction for Illegally Operating a Motor Vehicle Not Equipped with Ignition Interlock and Driving While Operating Privilege is Suspended or Revoked, Second Offense. Appellant's counsel, John R. Kalenish, Esquire (Attorney Kalenish), has filed an Application to Withdraw as Counsel (Petition to Withdraw) and an Anders Brief stating that the appeal is wholly frivolous. After careful review, we affirm the Judgement of Sentence and grant counsel's Petition to Withdraw.
75 Pa.C.S. §§ 3808(a)(1) and 1543(b)(1), respectively.
Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).
On December 22, 2014, Police Officer Corey Hicks initiated a traffic stop on Appellant's vehicle, a red Chevrolet, after observing the vehicle drive the wrong direction down Laurel Avenue, a one-way street. Officer Hicks observed that Appellant's license had an ignition interlock label in the bottom right-hand corner and was a restricted license. Officer Hicks contacted Cambria County 911, which confirmed that Appellant's license was an "interlock license" and that Appellant's license had been suspended for one year effective July 8, 2014. (N.T. 9/1/15, at 9.) Appellant was charged with, inter alia, Illegally Operating a Motor Vehicle Not Equipped with Ignition Interlock and Driving While Operating Privilege is Suspended or Revoked, Second Offense.
On September 1, 2015, following a non-jury trial, the trial court found Appellant guilty of both offenses. On the same day, the trial court sentenced Appellant to an aggregate term of 45 to 90 days' incarceration and fines totaling $500.00.
Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On 8/11/16, Attorney Kalenish filed a Petition to Withdraw and an Anders Brief.
On July 14, 2016, court-appointed counsel Gregory J. Neugebauer, Esquire (Attorney Neugebauer), filed a Motion to Withdraw as Counsel due to a professional conflict. On July 25, 2016, this Court granted Attorney Neugebauer's Motion, appointed Attorney Kalenish to represent Appellant, and ordered Attorney Kalenish to file an advocate's Brief or Anders Brief within thirty days.
As a preliminary matter, we address Attorney Kalenish's Petition 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. Daniels , 999 A.2d 590, 593 (Pa. Super. 2010) (citation omitted).
In order for counsel to withdraw from an appeal pursuant to Anders , our Supreme Court has determined that counsel must meet certain requirements, including:
(1) provide a summary of the procedural history and facts, with citations to the record;Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009).
(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.
We note that Attorney Kalenish has complied with all of the requirements of Anders as articulated in Santiago. Additionally, Attorney Kalenish confirms that he sent Appellant a copy of the Anders Brief, as well as a letter explaining to Appellant that he has the right to proceed pro se or the right to retain new counsel. See Commonwealth v. Millisock , 873 A.2d 748, 751 (Pa. Super 2005) (describing notice requirements). Attorney Kalenish appended a copy of the letter to his Petition to Withdraw.
Once "counsel has met these obligations, it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous." Commonwealth v. Flowers , 113 A.3d 1246, 1248 (Pa. Super. 2015) (citation and internal quotation marks omitted). Further "this Court must conduct an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel." Id. at 1250 (footnote and citation omitted).
Appellant raises the following issue on appeal: "Did the [t]rial court err in not acquitting [Appellant] because the underlying statute violates [Appellant]'s constitutional right to operate a vehicle upon public highways?" Appellant's Brief at 2.
The Honorable Norman A. Krumenacker, III, sitting as the trial court, has authored a comprehensive and well-reasoned Opinion, citing to relevant statutes and case law in addressing Appellant's claim on appeal. After a careful review of Appellant's arguments and the record, we affirm on the basis of the trial court's Opinion which concluded that: (1) neither the United States Constitution nor the Pennsylvania Constitution recognizes a right to operate a motor vehicle; (2) the operation of a motor vehicle is a privilege afforded by the state and subject to regulation by the state; and (3) the underlying statutes, 75 Pa.C.S. §§ 3808(a)(1) and 1543(b)(1), do not infringe on Appellant's constitutional right to operate a motor vehicle where no such right exists. See Trial Court Opinion, filed 11/23/15, at 2-4.
Accordingly, we agree with counsel and conclude that the issue raised in the Anders Brief is wholly frivolous. Furthermore, our independent review of the record confirms counsel's assertion that Appellant cannot raise any non-frivolous issues in this appeal. See Flowers , supra at 1250. Thus, we grant Attorney Kalenish's Petition to Withdraw and affirm Appellant's Judgment of Sentence.
The parties are instructed to attach a copy of the trial court's Opinion, filed 11/23/15, to all future filings.
Judgment of Sentence affirmed. Petition to Withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/6/2016
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