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Commonwealth v. Mitchell

IN THE SUPERIOR COURT OF PENNSYLVANIA


December 18, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
LONNIE MITCHELL, APPELLANT

Appeal from the Judgment of Sentence Entered July 15, 2008, Court of Common Pleas, Philadelphia County, Criminal Division, at No. MC-51-CR-0022285-2008.

The opinion of the court was delivered by: Shogan, J.

BEFORE: ORIE MELVIN, SHOGAN, and POPOVICH, JJ.

¶ 1 Appellant, Lonnie Mitchell, appeals from the judgment of sentence entered on July 15, 2008, after he was adjudged guilty of harassment and found in indirect criminal contempt for violating a protection from abuse ("PFA") order. Appellant's counsel has filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). For the reasons that follow, we deny counsel's petition to withdraw, vacate the judgment of sentence with respect to Appellant's harassment conviction, and remand this matter with instructions.

¶ 2 The facts of this case, as gleaned from the record, reveal that on March 31, 2008, Appellant's mother, Sandy Mitchell, obtained a PFA order that restricted Appellant from, inter alia, having any contact with her. See Appellant went to Ms. Mitchell's home and threw a brick at her through a window. N.T. 7/15/08, at 31-32, 35. On April 29, 2008, Appellant went back to Ms. Mitchell's home. N.T., 7/15/08, at 42. Appellant began kicking Ms. Mitchell's door and asking for money. Id. Appellant again threw a brick into Ms. Mitchell's window, and Ms. Mitchell called the police. Id. When the police arrived, Appellant fled, but was ultimately apprehended. Id. at 6.

¶ 3 As a result of the incident on April 29th, Appellant was charged and convicted of harassment, and adjudged to be in indirect criminal contempt of the PFA order, at docket number 22285-2008. In a companion case, Appellant was charged and convicted of several other offenses at docket number 22286-2008, in connection with the incident that occurred on April 12, 2008. The trial court imposed a flat sentence of six months of incarceration for the violation of the PFA order and a flat sentence of 90 days of incarceration for the harassment conviction at docket number 22285- 2008.

¶ 4 On August 6, 2008, Appellant filed a timely notice of appeal at docket number 22285-2008. He did not appeal from the judgment of sentence imposed at docket number 22286-2008.*fn1 In an order dated August 18, 2008, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) at docket number 22285-2008. Appellant, however, failed to comply with the trial court's order.

¶ 5 Instead, Appellant filed a Pa.R.A.P. 1925(b) statement at 22286-2008, raising issues related to the incident on April 12, 2008. Thereafter, the trial court filed an opinion at 22286-2008 and addressed the issues raised in the Pa.R.A.P. 1925(b) statement. There is nothing in the record revealing that Appellant ever filed a Pa.R.A.P. 1925(b) statement at 22285-2008, which is the docket number from which he actually appealed. As such, Appellant has failed to preserve any issues on appeal. Commonwealth v. Castillo, 585 Pa. 395, 402, 888 A.2d 775, 779 (2005). Moreover, we are constrained to conclude that the diminished record resulting from these errors precludes us from deciding counsel's petition filed pursuant to Anders.*fn2 See Commonwealth v. McBride, 957 A.2d 752 (Pa. Super. 2008) (stating that the failure to file a court-ordered Pa.R.A.P. 1925(b) statement that results in the waiver of the appellant's issues is ineffectiveness per se; this deficiency provides our Court a diminished record precluding meaningful appellate review under Anders).

¶ 6 Despite the confusion noted above, we discern an even more immediate problem with this case. Although a flat sentence of six months is legal with respect to the violation of the PFA order pursuant to Wagner v. Wagner, 564 A.2d 162, 164 (Pa. Super. 1989), the flat sentence of 90 days of incarceration for harassment is illegal. Commonwealth v. Barzyk, 692 A.2d 211, 215-216 (Pa. Super. 1997) (stating that as a general rule, when imposing a sentence of total confinement, the trial court is required to impose both a minimum and maximum sentence) (citing 42 Pa.C.S.A. §9756)).*fn3 We are thus constrained to vacate the judgment of sentence for harassment and remand it to the trial court for resentencing. Barzyk, 692 A.2d at 216; and see Commonwealth v. Basinger, 982 A.2d 121 (Pa. Super. 2009) (holding that the trial court committed reversible error by sentencing a defendant to serve 90 days in jail without specifying any minimum sentence).

¶ 7 In summary, we deny Appellant's counsel's petition to withdraw. Additionally, for the reasons set forth above, we vacate the judgment of sentence for harassment and remand for resentencing on that conviction. Following resentencing on the harassment conviction, Appellant shall have the full panoply of appellate rights at 22285-2008, at which time he may file an appeal. Should Appellant choose to file an appeal, he shall at that time, if ordered to do so by the trial court, comply with Pa.R.A.P. 1925 and raise any issues he seeks to have reviewed at docket number 22285-2008 concerning either the harassment conviction or the indirect criminal contempt conviction.*fn4

¶ 8 Motion to withdraw denied. Judgment of sentence vacated. Case remanded with instructions. Jurisdiction relinquished.*fn5


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