Word choice is important . . .

and so is a thorough review and timing.

Word choice is important . . . and so is a thorough review and timing.

Comm. v. Dempster, 2018 PA Super 121 (May 8, 2018)

This is an appeal before an en banc panel of the Superior Court, which arose out of Delaware County.  The issue on appeal concerns the scope of the appellate court’s independent review when an attorney files an Anders brief and seeks to withdraw from a case.  Different panels of the Superior Court have come to differing conclusions on this issue.  Thus this appeal was heard en banc to resolve the confusion.  And the Superior Court ultimately held as follows:

 [A]nders not only requires counsel to conduct an exhaustive examination of the record, but “also places the responsibility on the reviewing court to make an independent determination of the merits of the appeal.”

*       *       *

In light of the constitutional rights at issue, we must give Anders a most generous reading and review “the case” as presented in the entire record with consideration first of issues raised by counsel. . . . [T]his review does not require this Court to act as counsel or otherwise advocate on behalf of a party.  Rather, it requires us only to conduct a simple review of the record to ascertain if there appear on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated.

In sum, when appellate counsel believes there are no issues of merit to raise on appeal—i.e. the appeal is frivolous—and seeks leave to withdraw, the Superior Court’s obligation then becomes one of reviewing the entire record to satisfy itself that the appeal, in fact, is wholly frivolous.  It may not limit itself to reviewing only those issue raised in the Anders brief.

Comm. v. Baney, 2018 PA Super 131 (May 18, 2018)

Appeal out of Clinton County.  Back in 2003, Baney was sentenced as part of a negotiated plea to various drug offenses.  His sentence was 20-39 years’ imprisonment plus $50,000 in fines, and restitution in the amount of $12,621.93.  It’s the restitution order that was the cause of the instant appeal.

On March 3, 2017, Baney filed a Petition to Modify Restitution after the Pennsylvania Supreme Court held a year before that the Pennsylvania Department of Community and Economic Development was “neither a ‘direct victim’ nor a reimbursable compensating government agency” under the restitution statute of the Crimes Code.  Given this holding, the trial court requested that the parties brief the issue of whether Baney’s restitution order in favor of the Attorney General’s Office and the Pennsylvania State Police was proper.  Finding that it was not, the trial court vacated the restitution order.  But that was not enough for Baney; he then sought resentencing on all of his counts due to the modification of the sentence by the removal of the restitution.  That was denied.

In support of that ruling, the Superior Court said this:

The [trial] court did not disturb the overall sentencing scheme of not less than twenty nor more than thirty-nine years’ imprisonment by vacating restitution.  Therefore, the court was not required to resentence [Baney] on all counts, and it did not abuse its discretion in denying [Baney’s] motion requesting that it do so.

Before the Superior Court concluded its analysis, it did offer this point for future consideration.  It observed:

It appears . . . that the issued presented by this case would not have arisen if the trial court and counsel employed the precise use of the words, “restitution” and “costs of prosecution.”

It is well-established that the Commonwealth is not a victim entitled to restitution.  However, what the Commonwealth is statutorily authorized to receive are costs of prosecution.  These costs include, but are not limited to, the costs of convening an investigating grand jury, expert witness fees, clerk costs, “buy money,” and other expert witness costs to investigate these crimes.

Instantly, it appears from review of the case file that the trial court did not actually intend that Appellant pay true restitution, as defined by the Crimes Code, to the Commonwealth.  Instead, what was intended was that Appellant pay the costs of prosecution incurred by the OAG and PSP in investigating and prosecuting his case.  However, imprecisely using the word, “restitution,” resulted in these costs being vacated.  We caution courts and counsel in such cases of the necessity of the accurate use of the terms, “restitution” and “costs of prosecution” . . . .

Choice of words are important, and they often make a big difference when it comes to liberty and money.  

Comm. v. Moser, 2018 PA Super 132 (May 18, 2018)

Appeal out of Westmoreland County.  The trial court had granted Moser’s Motion to Suppress his BAC results, finding that he had only consented to a warrantless blood draw after being read the defective DL-26 form.  (This is yet another case in the long line of DUI cases to be impacted by the U.S. Supreme Court’s decision in Birchfield, which is the subject of many prior posts.)  Here, though the trial court’s explicit findings were to the contrary, the Majority of the Superior Court panel held that Moser consented to a blood draw before being read the defective PennDOT DL-26 form, so, therefore, Moser’s consent was good and his blood should not have been suppressed.

***This case had parallels to the Commonwealth v. Haines, 168 A.3d 231 (Pa. Super. 2017) case, which the Superior Court decided last year.  However, what is troubling about this case is what Judge Strassburger points out in his dissent: the Majority seems to misconstrue the trial court’s findings of fact to reach the result it did in this case.  The dissent is worth looking at.