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[U] Commonwealth v. Eschert

Superior Court of Pennsylvania

September 9, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH ESCHERT, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH ESCHERT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 12, 2013 In the Court of Common Pleas of Delaware County Criminal Division at Nos.: CP-23-CR-0001794-2012, CP-23-CR-0001924-2012

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.[*]

MEMORANDUM

PLATT, J.

Appellant, Joseph Eschert, appeals from the judgment of sentence entered following his convictions of simple assault, possession of a controlled substance with intent to deliver (PWID), possession of a controlled substance, and possession of drug paraphernalia.[1] Appellant's counsel has filed a brief and a petition to withdraw under Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the appeal is wholly frivolous. We affirm and grant counsel's petition to withdraw.

The record reflects that Appellant's convictions arose from two separate but related incidents. On March 10, 2012, Appellant became involved in an argument with his roommate and punched him, causing a facial laceration. The police became involved and transported the roommate to the hospital. While at the hospital, the roommate told police that Appellant was selling marijuana from their apartment. Based upon this allegation, the police obtained a search warrant, and, upon execution of the warrant, discovered two ounces of marijuana (packed in six separate bags), pipes, a scale, and sandwich bags.

On January 25, 2013, following a non-jury trial, the trial court convicted Appellant of the aforementioned charges. At sentencing, the Commonwealth argued that a two-year mandatory minimum sentence applied because Appellant's residence was within a school zone. See 18 Pa.C.S.A. § 6317. The sentencing court agreed and imposed an aggregate sentence of not less than two nor more than four years of incarceration. The instant, timely appeal followed. On April 23, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 8, 2013, defense counsel filed a statement of intent to file an Anders[2] brief. On May 16, 2013, the trial court filed an opinion. See Pa.R.A.P. 1925.

On appeal, Appellant raises the following issue for our review:
1. Whether the drug-free school zone mandatory minimum sentencing provision was improperly applied where the purported school was a nursery school?

(Anders Brief, at 3).

Here, Appellant's court-appointed counsel has petitioned for permission to withdraw and has submitted an Anders brief, which is procedurally proper for counsel seeking to withdraw on direct appeal. Court-appointed counsel who seeks to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous 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.

Santiago, supra at 361. When we receive an Anders brief, we first rule on the petition to withdraw and then review the merits of the underlying issues. See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010). In addition, "[p]art and parcel of Anders is our Court's duty to review the record to insure no issues of arguable merit have been missed or misstated." Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

In the instant matter, counsel has complied with all the requirements of Anders and Santiago. Specifically, he has petitioned this Court to withdraw on grounds of frivolity. In addition, after his review of the record, he filed a brief with this Court that provides a summary of the procedural history and facts with citations to the record, refers to any facts or legal theories that arguably support the appeal, and explains why he believes the appeal is frivolous. (See Anders Brief, at 7-9). Lastly, he has attached as an exhibit to the petition to withdraw a copy of the letter sent to Appellant giving notice of his rights and including a copy of the Anders brief and the petition. See Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 2005). Appellant has not responded. Because counsel has expressly complied with the dictates of Anders, Santiago, and Millisock, we will examine the issue set forth in the Anders brief that counsel believes has arguable merit. See Garang, supra, at 240-41.

Appellant challenges the legality of his sentence. (See Anders Brief, at 7-9). "Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Our standard of review over such questions is de novo and our scope of review is plenary." Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012), appeal denied, 53 A.3d 756 (Pa. 2012) (citation omitted).

The statute at issue in the present matter is 18 Pa.C.S.A. § 6317, which provides in pertinent part:

§ 6317. Drug-free school zones
(a) General rule.--A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1, 000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:
(1)subject to this section; and
(2) for which The Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term of imprisonment of less than four years. . . .

18 Pa.C.S.A. § 6317(a) (footnote omitted). In the instant matter, Appellant's residence was 539.5' from Trinity Lutheran Church, which had a nursery school operating out of it. (See N.T. Sentencing, 3/12/13, at 7-8, 13). This Court has held that a pre-school is considered a school within the meaning of 18 Pa.C.S.A. § 6317. See Commonwealth v. Lewis, 885 A.2d 51, 58 (Pa. Super. 2005), appeal denied, 906 A.2d 540 (Pa. 2006). However, subsequently, this Court held that a daycare facility is not a school within the meaning of 18 Pa.C.S.A. § 6317. See Commonwealth v. Dixon, 53 A.3d 839, 847 (Pa. Super. 2012). Thus, the question at issue is whether a nursery school is considered a pre-school or a daycare facility.

In Lewis, this Court held that an institution that is designed to prepare children for elementary school was a school within the meaning of Section 6317. See Lewis, supra at 58. However, the daycare facility in Dixon was not considered a school because there were no certified teachers on the staff and no classes were conducted on the premises. See Dixon, supra at 847.

Here, at sentencing, the Commonwealth presented the testimony of Marion Galante, the Director of Trinity Lutheran Nursery School. (See N.T. Sentencing, 3/12/13, at 13-19). Ms. Galante testified that the school has a curriculum designed to prepare children for formal education in math, science, social studies, and language arts and certified teachers teach the classes. (See id. at 14-15). She also stated that, unlike a daycare facility, the nursery school is only open during normal school hours. (See id. at 16). She further noted that the school is divided into traditional classrooms with distinct instruction periods in each classroom and that the school has a large library. (See id. at 16-17). Thus, it is evident from the testimony that the facility was not a daycare facility but rather a school as the term was defined in Lewis. See Lewis, supra at 58. Therefore, Appellant's claim that the trial court wrongly applied the mandatory minimum sentence lacks arguable merit.

Appellant's issue does not merit relief. Further, this Court has conducted an independent review of the record as required by Anders and Santiago and finds that no non-frivolous issues exist.

Petition to withdraw as counsel granted. Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered.


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