Com. v. Beers, J. ( 2018 )


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  • J-S69032-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JOHN ALEXANDER BEERS                       :
    :
    Appellant               :   No. 1001 MDA 2018
    Appeal from the Judgment of Sentence April 6, 2018
    In the Court of Common Pleas of Juniata County Criminal Division at
    No(s): CP-34-CR-0000156-2017
    BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
    MEMORANDUM BY MURRAY, J.:                           FILED NOVEMBER 26, 2018
    John Alexander Beers (Appellant) appeals from the judgment of
    sentence imposed after he pled nolo contendere to one count of theft by
    unlawful taking.1     Additionally, Appellant’s counsel, Nancy Schrum, Esquire
    (Counsel), seeks to withdraw from representation pursuant to Anders v.
    California, 
    386 U.S. 738
     (1967), and Commonwealth v. Santiago, 
    978 A.2d 349
    , 361 (Pa. 2009). Upon review, we affirm Appellant’s judgment of
    sentence and grant Counsel’s petition to withdraw.
    On April 3, 2018, Appellant entered a negotiated nolo contendere plea
    to one count of theft by unlawful taking at docket CR-156-2017. Pursuant to
    the terms of the agreement, Appellant would receive a sentence of two and
    one-half to seven and one-half years of incarceration in a state correctional
    ____________________________________________
    1   18 Pa.C.S.A. §§ 3921(a)(1).
    J-S69032-18
    institution. All other charges at that docket were dismissed. That same day,
    Appellant pled guilty pursuant to a negotiated plea agreement in a second
    case docketed at CR-157-2017.      Under the terms of the plea agreement,
    Appellant pled guilty to one count of conspiracy to commit receiving stolen
    property and agreed to serve a sentence of two and one-half to seven and one
    half-years of incarceration to run consecutively to the sentence imposed at
    CR-156-2017. All remaining charges at the second docket were dismissed.
    On April 6, 2018, Appellant appeared for sentencing and the trial court
    sentenced Appellant in accordance with the plea agreements. On April 12,
    2018, Appellant filed a post-sentence motion seeking to modify his sentence
    and/or withdraw his guilty plea at docket CR-156-2017. Of relevance to this
    appeal, Appellant argued in his motion that his nolo contendere plea was not
    knowingly, intelligently, and voluntarily made because “the Commonwealth
    made the plea agreement in CR-157[-2017] contingent on [Appellant]
    entering a plea in CR-156[-2017],” and thus, Appellant should be permitted
    to withdraw his plea. Post Sentence Motion, 4/12/18, at ¶ 4-5. The trial court
    held a hearing on Appellant’s post-sentence motion on May 8, 2018, and
    denied the motion on May 16, 2018.        This timely appeal followed.   Both
    Appellant and the trial court have complied with Pennsylvania Rule of
    Appellant Procedure 1925. On July 10, 2018, Counsel filed an Anders brief
    and petitioned for leave to withdraw with this Court.
    At the outset, we note that there are particular mandates that counsel
    seeking to withdraw pursuant to Anders must follow. These mandates and
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    the significant protection they provide to an Anders appellant arise because
    a criminal defendant has a constitutional right to a direct appeal and to counsel
    on that appeal. Commonwealth v. Woods, 
    939 A.2d 896
    , 898 (Pa. Super.
    2007).
    To withdraw under Anders, court-appointed counsel must first “petition
    the court for leave to withdraw and state that after making a conscientious
    examination of the record, [s]he has determined that the appeal is frivolous.”
    Commonwealth v. Martuscelli, 
    54 A.3d 940
    , 947 (Pa. Super. 2012)
    (quoting Santiago, 978 A.2d at 361). Second, counsel must file an Anders
    brief, in which counsel:
    (1) provide[s] a summary of the procedural history and facts, with
    citations to the record; (2) refer[s] to anything in the record that
    counsel believes arguably supports the appeal; (3) set[s] forth
    counsel’s conclusion that the appeal is frivolous; and (4) state[s]
    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, 978 A.2d at 361.        With respect to the briefing requirements,
    “[n]either Anders nor [Commonwealth v. McClendon, 
    434 A.2d 1185
     (Pa.
    1981),] requires that counsel’s brief provide an argument of any sort, let alone
    the type of argument that counsel develops in a merits brief. To repeat, what
    the brief must provide under Anders are references to anything in the record
    that might arguably support the appeal.”      Santiago, 978 A.2d at 359-60.
    Finally, counsel must furnish a copy of the Anders brief to her client and
    “advise[ ] him of his right to retain new counsel, proceed pro se or raise any
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    additional points that he deems worthy of the court’s attention, and attach []
    to   the   Anders   petition   a   copy    of   the   letter   sent   to   the   client.”
    Commonwealth v. Daniels, 
    999 A.2d 590
    , 594 (Pa. Super. 2010) (citation
    omitted).
    When faced with a purported Anders brief, we may not review the
    merits of the underlying issues without first deciding whether counsel has
    properly requested permission to withdraw. Commonwealth v. Wimbush,
    
    951 A.2d 379
    , 382 (Pa. Super. 2008) (citation omitted).                If counsel has
    satisfied the above requirements, it is then this Court’s duty to conduct its
    own review of the trial court’s proceedings to determine whether there are
    any other non-frivolous issues that the appellant could raise on appeal.
    Commonwealth v. Dempster, 
    187 A.3d 266
    , 272 (Pa. Super. 2018) (en
    banc).
    Instantly, we conclude that Counsel has complied with the requirements
    outlined above. Counsel has filed a petition with this Court stating that after
    reviewing the record, she finds this appeal to be wholly frivolous. Petition to
    Withdraw as Counsel, 7/10/18, at ¶ 1.            In conformance with Santiago,
    Counsel’s brief includes summaries of the facts and procedural history of the
    case, and refers to portions of the record that arguably support the appeal –
    specifically, potential issues regarding the voluntariness of the plea.             See
    Anders Brief at 2-3. Counsel’s brief concludes, however, that the appeal is
    wholly frivolous.   See id. at 4.    Additionally, Counsel’s correspondence to
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    Appellant provided Appellant with a copy of the Anders brief; informed
    Appellant that after making “a conscientious examination of the record,
    Counsel concluded that the “appeal would be wholly frivolous;” and advised
    him of his right to either retain new counsel or to proceed pro se on appeal to
    raise any points he deems meritorious. As such, Counsel has substantially
    complied with the procedural requirements of Anders. We therefore proceed
    to conduct an independent review to ascertain whether the appeal is indeed
    wholly frivolous.
    Counsel raises the following issue in her Anders brief: “Whether the
    [t]rial [c]ourt erred in refusing to permit the [Appellant] to withdraw his plea
    of [n]olo [c]ontendere?”    Anders Brief at 1.    Counsel then examines the
    voluntariness of Appellant’s guilty plea by referencing testimony from the
    guilty plea hearing, but concludes that the appeal is frivolous because the
    record demonstrates that the plea was voluntary. Although Counsel advances
    no argument in the Anders brief with respect to this issue, we reiterate that
    neither Anders nor McClendon requires counsel to set forth an argument,
    but rather only requires counsel to provide reference to anything in the record
    that might arguably support the appeal. Santiago, 978 A.2d at 364. Counsel
    has done so.
    With regard to Appellant’s guilty plea:
    We begin by setting forth our standard of review.         In
    Commonwealth v. Broaden, 
    980 A.3d 124
     (Pa. Super. 2009),
    we summarized the principles governing post-sentence motions
    to withdraw guilty pleas:
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    [P]ost-sentence motions for withdrawal are subject to
    higher scrutiny since courts strive to discourage entry
    of guilty pleas as sentence-testing devices.          A
    defendant must demonstrate that manifest injustice
    would result if the court were to deny his post-
    sentence motion to withdraw a guilty plea. Manifest
    injustice may be established if the plea was not
    tendered knowingly, intelligently, and voluntarily. In
    determining whether a plea is valid, the court must
    examine the totality of circumstances surrounding the
    plea. A deficient plea does not per se establish
    prejudice on the order of manifest injustice.
    Id. at 129 (Pa. Super. 2009) (citations omitted). “It is well-settled
    that the decision whether to permit a defendant to withdraw a
    guilty plea is within the sound discretion of the trial court.”
    Commonwealth v. Hart, 
    174 A.3d 660
    , 664 (Pa. Super. 2017)
    (applying abuse of discretion in post-sentencing context). The
    term discretion
    imports the exercise of judgment, wisdom and skill so
    as to reach a dispassionate conclusion, and
    discretionary power can only exist within the
    framework of the law, and is not exercised for the
    purpose of giving effect to the will of the judges.
    Discretion must be exercised on the foundation of
    reason,    as     opposed     to   prejudice,      personal
    motivations, caprice or arbitrary action. Discretion is
    abused when the course pursued represents not
    merely an error of judgment, but where the judgment
    is manifestly unreasonable or where the law is not
    applied or where the record shows that the action is a
    result of partiality, prejudice, bias or ill will.
    Commonwealth v. Shaffer, [ ] 
    712 A.2d 749
    , 751 ([Pa.]1998)
    (citation omitted).
    Commonwealth v. Kehr, 
    180 A.3d 754
    , 756-57 (Pa. Super. 2018).
    Here, Appellant claims that he was coerced into entering a nolo
    contendere plea because the Commonwealth made his conspiracy plea
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    agreement contingent upon him entering a plea to theft by unlawful taking.
    Appellant contends that his nolo contendere plea was not knowingly,
    voluntarily or intelligently made and that the trial court erred by prohibiting
    him from withdrawing his plea.
    Based upon our review of the certified record, including Appellant’s
    written colloquy and the transcripts of his guilty plea and sentencing hearing,
    we conclude that Appellant’s guilty plea was knowing, voluntary and
    intelligent. Initially, we note that the record indicates that no one pressured
    or forced Appellant to plead guilty. Appellant executed his written guilty plea
    colloquy, affirming that no “threats or promises [were] made to . . . persuade
    [Appellant] to enter a plea of guilty.” Guilty/Nolo Contendere Plea Colloquy,
    4/3/18, at 4.   Moreover, during Appellant’s oral guilty plea colloquy, the
    following dialogue occurred:
    THE COURT: Do you want some more time [to consider the plea
    agreement]?
    [APPELLANT]: No. [ ]
    THE COURT: If you want to think about it – I’m going to bring you
    back Friday for sentencing – I’ll allow you to withdraw your plea
    on Friday if you think it through, and you don’t want to do that.
    Okay?
    [APPELLANT]: Okay.
    N.T., 4/3/18, at 5-6. Appellant was given ample time to confer with his plea
    counsel and to consider whether he wanted to agree to the terms of the plea
    agreement. At sentencing, Appellant indicated that he wished to proceed with
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    the negotiated plea agreement and the trial court sentenced him accordingly.
    N.T., 4/6/18, at 2-7.     Because “[a] defendant is bound by the statements
    which he makes during his plea colloquy[,]” Commonwealth v. Orlando,
    
    156 A.3d 1274
    , 1281 (Pa. Super. 2017), Appellant cannot now propose that
    he was coerced into pleading guilty.
    Finally, our independent review of the proceedings reveals no other non-
    frivolous issues that Appellant could raise on appeal. See Dempster, 187
    A.3d at 272. Thus, we affirm Appellant’s judgment of sentence and grant
    Counsel’s petition to withdraw.
    Judgment of sentence affirmed. Petition to withdraw granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/26/2018
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