Com. v. Goodwine, B. ( 2016 )

J-S48008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRITNEY GOODWINE
Appellant No. 923 WDA 2015
Appeal from the Judgment of Sentence May 12, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013169-2014
BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J: FILED SEPTEMBER 19, 2016
Britney Goodwine appeals from the judgment of sentence of two years
probation that the trial court imposed after she pled guilty to delivery of a
controlled substance (heroin), possession of a controlled substance (heroin)
with intent to deliver, possession of a controlled substance (heroin), and
conspiracy. Counsel has filed a petition to withdraw from representation and
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant
counsel’s petition to withdraw and affirm.
The above delineated charges were instituted against Appellant based
upon the following events, which we have garnered from the affidavit
J-S48008-16
supporting the criminal complaint.1 At approximately 11:00 a.m. on April
14, 2014, Penn Hills Police Detective Nathan Laero used a confidential
informant ("CI") to conduct a controlled buy of ten bags of heroin. In
Defective Laero’s presence, the CI contacted the intended target of a drug
interdiction, Melvin Harris, III, and ordered the heroin. Under the
detective’s direct observation, the CI then entered a laundromat on 6026
Saltsburg Road, Penn Hills, and met with Harris and Appellant. Detective
Laero saw Appellant exchange ten bags of heroin with the CI in exchange for
cash.
On May 12, 2015, Appellant tendered a negotiated guilty plea to the
four charges in exchange for a sentence of probation to be determined by
the court. The matter proceeded to sentencing, and the court imposed a
two-year probationary term. Appellant was apprised of her post-sentence
rights. Guilty Plea, Explanation of Defendant's Rights, 5/12/14, at 6-8.
Appellant did not file any post-sentence motion. The present appeal
was filed on June 9, 2015. As noted, counsel has moved to withdraw. Since
we do not consider the merits of an issue raised in an Anders brief without
first reviewing a request to withdraw, we now address counsel’s petition to
withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)
(en banc). In order to be permitted to withdraw, counsel must meet three
____________________________________________
1
This affidavit was utilized as the factual basis for entry of the guilty plea.
-2-
J-S48008-16
procedural requirements: 1) file a petition for leave to withdraw and state
that, after making a conscientious examination of the record, counsel has
concluded that the appeal is frivolous; 2) provide a copy of the Anders brief
to the defendant; and 3) inform the defendant that he has the right to retain
private counsel or raise, pro se, additional arguments that the defendant
deems worthy of the court’s attention. Id.
Counsel has complied with the procedural requirements of Anders.
His motion to withdraw indicates that he reviewed the record and, based on
that review, determined that this appeal is frivolous. The petition also states
that counsel mailed a copy of the motion to withdraw and the brief to
Appellant and that he told Appellant about her right to hire counsel or
represent herself in this appeal. A letter to Appellant is attached to the
motion to withdraw, and it confirms that Appellant received a copy of the
documents in question and was told about her right to proceed with private
counsel or pro se.
We now examine the briefing requirements when counsel seeks to
withdraw on direct appeal. Pursuant to Santiago, an Anders 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-S48008-16
Santiago, supra at 361.
Appellant's brief satisfies the mandates of Santiago. It sets forth the
procedural and factual history of this matter. Counsel then extensively
examines the plea colloquy, establishes why it was valid, cites a significant
amount of pertinent legal authority, and indicates that Appellant's sentence,
being compliant with the negotiated plea and within the statutory limits,
cannot be challenged. Thus, the issue, as framed to this panel, is whether
the public defender’s office should be permitted to withdraw. Appellant’s
brief at 2.
We conclude that the public defender’s office should be permitted to
withdraw because no issues are preserved for appeal. Any objections to the
validity of the plea and sentence have been waived. In Commonwealth v.
Lincoln, 72 A.3d 606 (Pa.Super. 2013), a direct appeal, Lincoln had not
filed a post-sentence motion seeking to withdraw his guilty plea. We
concluded that any challenges to the validity of the guilty plea were waived
for purposes of the direct appeal, observing that “a defendant wishing to
challenge the voluntariness of a guilty plea on direct appeal must either
object during the plea colloquy or file a motion to withdraw the plea within
ten days of sentencing. Failure to employ either measure results in waiver.”
Id. at 609-10 (citations omitted). Such waiver flows from application of
Pa.R.A.P. 302, which provides that issues not raised in the trial court are
waived for purposes of appeal. In the present matter, Appellant waived all
-4-
J-S48008-16
challenges to the validity of her guilty plea for purposes of direct appeal by
neglecting to object to its validity at the plea proceeding or in a post-
sentence motion.
Any sentencing challenges are likewise waived. Appellant raised no
objection to the sentence when it was imposed, and she failed to file a post-
sentence motion. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003) (citation omitted) (“[I]ssues challenging the discretionary aspects of
sentencing must be raised in a post-sentence motion or by raising the claim
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.”).
Moreover, Appellant cannot challenge the discretionary aspects of the
sentence imposed since it comported with the negotiated guilty plea, which
called for a probationary term. It is well settled that
[w]here the plea agreement contains a negotiated sentence
which is accepted and imposed by the sentencing court, there is
no authority to permit a challenge to the discretionary aspects of
that sentence. “If either party to a negotiated plea agreement
believed the other side could, at any time following entry of
sentence, approach the judge and have the sentence unilaterally
altered, neither the Commonwealth nor any defendant would be
willing to enter into such an agreement.” Permitting a
discretionary appeal following the entry of a negotiated plea [ ]
would undermine the designs and goals of plea bargaining, and
“would make a sham of the negotiated plea process[.]”
Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa.Super. 1991)
(citations omitted); accord Commonwealth v. Baney, 860 A.2d 127, 131
(Pa.Super. 2004).
-5-
J-S48008-16
We have conducted an independent review of the record, as required
by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),
and have concluded that there are no preserved non-frivolous issues that
can be raised in this appeal. Hence, we concur with counsel’s assessment
and allow him to withdraw.
Petition of Scott B. Rudolf, Esquire, to withdraw is granted. Judgment
of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2016
-6-
J-S48008-16
-7-