Com. v. Yeiser, S. ( 2017 )


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  • J-S92024-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    SIAM SHABAZZ YEISER
    Appellant                  No. 712 WDA 2016
    Appeal from the Judgment of Sentence April 4, 2016
    In the Court of Common Pleas of Clearfield County
    Criminal Division at No(s): CP-17-CR-0000200-2016
    BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
    MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 01, 2017
    Siam Shabazz Yeiser appeals from the April 4, 2016 judgment of
    sentence entered in the Clearfield County Court of Common Pleas following
    his entry of a guilty plea to possession of contraband by an inmate
    (controlled substance).1 In a prior memorandum, we remanded this matter
    for the filing of a counseled Pennsylvania Rule of Appellate Procedure
    1925(b) statement and a new Rule 1925(a) opinion. See Commonwealth
    v. Yeiser, No. 712 WDA 2016, unpublished mem. (Pa.Super. filed Mar. 29,
    2017). Yeiser filed a counseled Rule 1925(b) statement on April 19, 2017,
    and the trial court issued a new Rule 1925(a) opinion on May 2, 2017. On
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    18 Pa.C.S. § 5123(a.2).
    J-S92024-16
    May 23, 2017, this Court ordered the parties to submit new briefs
    addressing the issues.        On June 30, 2017, Yeiser’s counsel filed a brief
    pursuant to Anders v. California, 
    386 U.S. 738
     (1967), and a petition to
    withdraw from representation that was attached as an appendix to the
    brief;2 the Commonwealth filed its brief on August 1, 2017. Because we find
    a non-frivolous issue of record, we deny counsel’s petition to withdraw and
    direct counsel to file an advocate’s brief.
    In our prior memorandum, we set forth a detailed factual and
    procedural history of this case, which we incorporate herein.     See Yeiser,
    No. 712 WDA 2016, unpublished mem. at 2-3.
    When presented with an Anders brief, this Court may not review the
    merits of the underlying issues until we address counsel’s request to
    withdraw.      Commonwealth v. Goodwin, 
    928 A.2d 287
    , 290 (Pa.Super.
    2007) (en banc). Before we address the issues raised in the Anders brief,
    we must first determine whether counsel’s petition to withdraw satisfies the
    procedural requirements of Anders. To be permitted to withdraw, counsel
    must:
    1) petition the court for leave to withdraw stating that,
    after making a conscientious examination of the record,
    counsel has determined that the appeal would be frivolous;
    ____________________________________________
    2
    On August 15, 2017, this Court denied counsel’s November 15, 2016
    petition to withdraw as moot and directed the Prothonotary to file counsel’s
    new petition to withdraw, which had been attached to the Anders brief as
    Appendix G. See Order, 8/15/17.
    -2-
    J-S92024-16
    2) furnish a copy of the brief to the defendant; and 3)
    advise the defendant that he or she has the right to retain
    private counsel or raise additional arguments that the
    defendant deems worthy of the court’s attention.
    Commonwealth v. Cartrette, 
    83 A.3d 1030
    , 1032 (Pa.Super. 2013) (en
    banc).
    In his petition, counsel states that after a “thorough review and
    analysis of the record and of the issues raised by [Yeiser,]” he has “found no
    merit in any actual or potential issues and . . . certif[ies] that the appeal is
    frivolous.” Pet. to Withdraw, 8/15/17, ¶ 2. Counsel has also certified that
    he furnished a copy of the Anders brief to Yeiser, see Proof of Service,
    6/29/17, and sent Yeiser a copy of the petition to withdraw with a letter
    advising Yeiser that “[he] ha[s] the right to retain new counsel to pursue the
    appeal or to proceed pro se to raise any points that [he] deem[s] worthy of
    the Court’s attention.” Ltr. to Yeiser, 6/28/17. We conclude that counsel’s
    petition to withdraw complies with the procedural dictates of Anders.
    We must next determine whether counsel’s Anders brief meets the
    requirements    established   by   the   Pennsylvania    Supreme     Court    in
    Commonwealth v. Santiago, 
    978 A.2d 349
     (Pa. 2009). The brief 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.
    -3-
    J-S92024-16
    
    Id. at 361
    .
    Here, counsel has provided a summary of the procedural and factual
    history with appropriate citations to the record. Counsel has evaluated the
    issues Yeiser wishes to raise, stated that such an appeal is frivolous, and set
    forth his reasons for that conclusion.           We conclude that counsel has
    complied with the technical requirements of Anders and Santiago.3
    However, because we conclude that one of the issues raised in the Anders
    brief is non-frivolous, we deny counsel’s petition to withdraw.
    On appeal, Yeiser argues that his “plea agreement was void and the
    [trial c]ourt erred by sentencing him [because he] . . . was not given both a
    written and a verbal colloquy.”         1925(b) Stmt., 4/19/17.4   In his Anders
    brief, counsel asserts that this claim is frivolous because the written colloquy
    inquired into all areas required under Pennsylvania Rule of Criminal
    Procedure 590 and, because “there is no known rule that verbal colloquy
    must also be conducted at sentencing in addition to a full written colloquy.”
    Anders Br. at 17.        The Commonwealth agrees, noting that Yeiser “simply
    ____________________________________________
    3
    We note that counsel’s current Anders brief is substantially the same
    as the first Anders brief counsel submitted to this Court.
    4
    In our prior memorandum, we stated that “Yeiser has raised at least
    one non-frivolous issue regarding the validity of his guilty plea, which should
    be addressed in an advocate’s brief if appealed.” See Yeiser, No. 712 WDA
    2016, unpublished mem. at 5 n.7. Given that directive, we have difficulty
    understanding why counsel elected to file another Anders brief, much less
    an Anders brief in substantially the same form as his first Anders brief.
    -4-
    J-S92024-16
    states that the plea agreement should be void because he did not receive an
    oral colloquy in addition to the extensive written colloquy.” Cmwlth.’s Br. at
    16. It further argues that “[b]ecause [Yeiser] unquestionabl[y] tendered the
    plea voluntarily and intelligently, his argument is frivolous.” Cmlwth.’s Br. at
    16. We disagree.
    On February 27, 2016, Yeiser signed a written guilty plea colloquy.
    The only mention in the record of Yeiser having actually entered a plea
    before the trial court is in the sentencing transcript, where all parties
    acknowledged that Yeiser had entered his guilty plea before the court. 5 See
    N.T., 4/4/16, at 1. The record contains no transcript of an oral colloquy of
    Yeiser by the trial court.
    Rule 590 governs guilty pleas; subsection (B)(2) requires:
    The judge shall conduct a separate inquiry of the
    defendant on the record to determine whether the
    defendant understands and voluntarily accepts the terms
    of the plea agreement on which the guilty plea or plea of
    nolo contendere is based.
    ____________________________________________
    5
    Yeiser’s written plea colloquy was filed with the trial court on March
    7, 2016. Yeiser was sentenced on April 4, 2016, which is when the parties
    and the trial court all agreed that at some earlier, unspecified time, Yeiser
    had appeared before the trial court and entered his plea. Neither party’s
    brief identifies the date of this plea, and we have found nothing in the
    certified record, other than the above-referenced statements made at
    sentencing, suggesting precisely when, or even if, Yeiser actually entered his
    plea.
    -5-
    J-S92024-16
    Pa.R.Crim.P. 590(B)(2) (emphasis and italics added). 6            The comments to
    Rule 590 provide that
    [w]hen a guilty plea, or plea of nolo contendere, includes a
    plea agreement, the 1995 amendment to paragraph (B)(2)
    requires that the judge conduct a separate inquiry on
    the record to determine that the defendant understands
    and accepts the terms of the plea agreement.
    
    Id.
       cmt.   (emphasis      and    italics     added).   That   comment   also   cites
    Commonwealth v. Porreca, 
    595 A.2d 23
     (Pa. 1991), where our Supreme
    Court determined that the trial court erred when in failing to separately
    inquire about Porreca’s “yes” answer to a question in the written colloquy
    asking whether any threats or promises had been made to Porreca to
    persuade him to plead guilty. 595 A.2d at 27. The Porreca Court held that
    the trial court’s failure to ask Porreca about that “yes” answer violated the
    prior version of Rule 590, which required that the trial court determine that
    the plea was “understandingly and voluntarily tendered,” and the underlying
    safeguards established by the United States Supreme Court in Santobello
    v. New York, 
    404 U.S. 257
     (1971), designed “to insure the defendant what
    is reasonably due in the circumstances.” Porreca, 595 A.2d at 28 (quoting
    Santobello, 
    404 U.S. at 262
    ).
    ____________________________________________
    6
    Rules 590(A)(1) and (3) also require that: (1) pleas be “taken in
    open court,” (2) the trial court “determine after inquiry of the defendant
    that the plea is voluntarily and understandingly tendered,” and (3) the trial
    court’s “inquiry . . . appear on the record.” Pa.R.Crim.P. 590(A)(1), (3)
    (emphasis added).
    -6-
    J-S92024-16
    Under these circumstances, we conclude that Yeiser’s guilty plea claim
    is not frivolous. The plain language of Rule 590(B)(2) appears to require an
    on-the-record inquiry when the defendant pleads pursuant to an agreement.
    Here, the trial court apparently did not conduct an oral colloquy of Yeiser
    before accepting his plea and sentencing him pursuant to a negotiated plea
    agreement.       Given a lack of case law interpreting or applying Rule
    590(B)(2), we conclude that Yeiser’s issue is not frivolous.7 We, therefore,
    direct counsel to file an advocate’s brief within 30 days of the date of this
    memorandum addressing (1) whether Rule 590(B)(2) required the trial court
    to conduct an oral colloquy of Yeiser before accepting his guilty plea, and (2)
    if so, whether a violation of Rule 590(B)(2) requires this Court to vacate
    Yeiser’s judgment of sentence.            The Commonwealth may file a brief in
    response within 30 days of the filing of the advocate’s brief.
    Motion to withdraw denied. Case remanded with instructions. Panel
    jurisdiction retained.8
    ____________________________________________
    7
    We do not express an opinion as to the relative merit of this issue,
    but only conclude that this issue is non-frivolous and requires further
    briefing.
    8
    Yeiser claims that the trial court’s failure to colloquy him on the
    record prevented Yeiser from (1) being informed that he could proceed to
    trial, and (2) pleading his guilt or innocence at the time of sentencing.
    Further, Yeiser claims that the trial court abused its discretion by ordering
    that Yeiser serve the sentence for this conviction consecutive to the
    sentence that he is currently serving. We need not address these issues
    (Footnote Continued Next Page)
    -7-
    J-S92024-16
    _______________________
    (Footnote Continued)
    because his non-frivolous guilty plea issue bears on them and, if he is
    granted relief, may render these issues moot.
    -8-
    

Document Info

Docket Number: Com. v. Yeiser, S. No. 712 WDA 2016

Filed Date: 9/1/2017

Precedential Status: Precedential

Modified Date: 9/1/2017